Democratic Citizenship and the Free Movement of People [1 ed.] 9789004243286, 9789004243279

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Democratic Citizenship and the Free Movement of People

Immigration and Asylum Law and Policy in Europe Editors

Elspeth Guild Kingsley Napley Solicitors, London, Centre for Migration Law, Radboud University Nijmegen

Jan Niessen Migration Policy Group, Brussels

The series is a venue for books on European immigration and asylum law and policies where academics, policy makers, law practitioners and others look to fijind detailed analysis of this dynamic fijield. Works in the series will start from a European perspective. The incresed co-operation within the European Union and the Council of Europe on matters related to immigration and asylum requires the publication of theoretical and empirical research. The series will contribute to well-informed policy debates by analysing and interpreting the evolving European legislation and its efffects on national law and policies. The series brings together the various stakeholders in these policy debates: the legal profession, researchers, employers, trade unions, human rights and other civil society organisations.

VOLUME 30

The titles published in this series are listed at brill.com/ialp

Democratic Citizenship and the Free Movement of People

Edited by

Willem Maas

LEIDEN • BOSTON 2013

Library of Congress Cataloging-in-Publication Data Democratic citizenship and the free movement of people / edited by Willem Maas. pages cm. -- (Immigration and asylum law and policy in Europe ; volume 30) Includes index. ISBN 978-90-04-24327-9 (hardback : alk. paper) -- ISBN 978-90-04-24328-6 (e-book) 1. Freedom of movement--European Union countries. I. Maas, Willem, 1972- editor of compilation. KJE5170.D46 2013 342.2408'5--dc23 2013030190

issn 1568-2749 isbn 978-90-04-24327-9 (hardback) isbn 978-90-04-24328-6 (e-book) Copyright 2013 by Koninklijke Brill nv, Leiden, The Netherlands. Koninklijke Brill nv incorporates the imprints brill, Global Oriental, Hotei Publishing, idc Publishers and Martinus Nijhofff Publishers. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher. Authorization to photocopy items for internal or personal use is granted by Koninklijke Brill nv provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers ma 01923, usa. Fees are subject to change. This book is printed on acid-free paper.

Contents

Preface

1

Willem Maas

Foreword Joseph H. Carens 1.

2.

3.

4.

5.

6.

Equality and the Free Movement of People: Citizenship and Internal Migration Willem Maas

5

9

Right of Way? Defining Freedom of Movement within Democratic Societies Matthew Longo

31

Free Movement for Workers or Citizens? Reverse Discrimination in European Family Reunification Policies Anne Staver

57

Under-Appreciated, Under-Employed and Potentially Unwelcome: The Long-Term Future of Polish Migrants in Ireland and Britain Michael Johns Politics of Free Movement in the European Union: Recognition and Transfer of Professional Qualifications Micheline van Riemsdijk

91

115

Roma and the Limits of Free Movement in the European Union 143 Jacqueline S. Gehring

vi

Table of Contents

7.

8.

Ethnic Return Migration, Selective Incentives, and the Right to Freedom of Movement in Post-Cold War Greece Harris Mylonas

175

Liberal Democracies’ Divergent Interpretations of the Right of Return: Implications for Free Movement Megan Bradley

195

List of Contributors

217

Index

219

Preface

The chapters in this book are all concerned with the discrepancy between the promise of equal citizenship and the competing desire of governments to maintain or strengthen diversity or special status. As Joseph Carens writes in his foreword, this book challenges the normal way of thinking about freedom of movement by identifying the tensions between the formal ideals that governments, laws, and constitutions expound and actual practices: “individual states and the European Union have either created or permitted the creation of direct and indirect barriers to mobility that undermine the promise of freedom of movement. The volume identifijies these barriers, explains why they have arisen, discusses why they are difffijicult to remove, and explores their consequences.” The opening chapter on citizenship and internal migration surveys some general lessons to be drawn from the tension between the promise of citizenship to deliver equality and the particularistic drive to maintain diversity. Using examples from Europe, the United States, and Canada, it demonstrates that barriers, incentives, and disincentives to internal free movement make some citizens more equal than others. Next, Matthew Longo considers the scope of free movement within democratic societies by focusing on two centuries of often ambiguous or contradictory United States Supreme Court rulings. Cataloguing a history of arguments for and against diffferential rather than equal citizenship, he concludes that the Court generally supports free movement between the US states but cannot agree on why or on the conditions under which it can be curtailed. Anne Staver examines another area in which the promise of equal citizenship exists in tension with discriminatory treatment based on diffferent legal statuses: family reunifijication in Europe, in which there are national rules for citizens who do not move, EU rules for citizens who move within Europe, the Family Reunifijication Directive for third-country nationals in the EU, and, since 2011, family reunifijication rights based on EU citizenship status. Michael Johns examines discrimination faced by migrants from central or eastern Europe who moved to Ireland or Britain in Europe’s largest recent internal migra-

2

Willem Maas

tion. He documents how migrants from Poland but also the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Slovakia, Slovenia, as well as Romania and Bulgaria face four general problems: deskilling, discrimination and social issues, exploitation, and a chilly reception. Micheline van Riemsdijk investigates the politics of recognition and transfer of professional qualifijications, focusing on the case of Polish nursing qualifijications. Emerging at the same time as the threat of “Polish plumbers” moving to France, the European Federation of Nurses Associations lobbied successfully to protect labour markets in the “old” EU-15 member states from the “threat” of Polish nurses, supported by the Polish government, eager to prevent an exodus of nurses. Jacqueline Gehring considers even more shocking discrimination against European citizens wishing to exercise free movement: the European Commission’s response to France’s expulsion of Roma, in violation of EU citizenship. Gehring ends on a sombre note about the prospects for European institutions (notably the Commission and the Court) to end discrimination against Roma and other marginalized or disadvantaged groups and individuals. Similarly, Harris Mylonas also investigates governmental logics in encouraging the settlement of certain groups of people but not others. Focusing on the approximately 150,000 ethnic Greeks who moved from the former Soviet Union—mostly from Georgia, Kazakhstan, and Russia—to Greece during the 1990s, Mylonas concludes that selective incentives are not outright legal restrictions but do influence settlement patterns, though not always to the degree policymakers intended. Finally, Megan Bradley concludes the book by examining a spate of recent examples in which one of the key rights of citizenship, the right of citizens to move to their country of citizenship from abroad, has been applied diffferentially. She documents how several liberal democracies have restricted the right of return for some of their own citizens while at the same time demanding that states with less power in the international system adopt a more open interpretation. The chapter demonstrates the continuing selective state regulation of migration and movement. Earlier and shorter versions of the chapters by Maas, Staver, Johns, van Riemsdijk, and Gehring appeared as articles in a special issue of the European Journal of Migration and Law (volume 15, number 1, 2013). Let me thank the editors of the European Journal of Migration and Law and Martinus Nijhofff for encouraging both publications. At Martinus Nijhofff, Lindy Melman oversaw this project nicely. Typesetting was done by Jules Guldenmund of jules guldenmund layout & text, who worked admirably on tight deadlines. Indexing was done by Julian Campisi. Finally, allow me to thank all the other contributors to this book as well as the discussants and attendees who participated in the workshop on Free Movement and Discrimination: The European Union in Comparative Perspective held at Glendon College, York University, in November 2011: Michael Barutciski, Christina ClarkKazak, Martin Geiger, Sakis Gekas, Matthew Light, Uri Marantz, Stuart Schoenfeld,

Preface

and Dagmar Soennecken. The conference was organized under the auspices of the European Union Centre of Excellence at York University, generously funded by the European Commission, which also deserves gratitude. Willem Maas Glendon College, York University (Toronto, Canada)

3

Foreword Joseph H. Carens

Most discussions of migration take place against a background assumption, often unstated, that people have and ought to have a legal right to internal freedom of movement (i.e., freedom of movement within a state), but not to freedom of movement across state borders (except for the right of citizens to enter their own state if they are outside its borders). There is one important and widely recognized qualifijication to this general assumption. The European Union grants citizens of member states a right to internal freedom of movement within the European Union, a right that is normally seen as comparable to the rights people have to internal freedom of movement within states. This commitment to freedom of movement within the EU is a fundamental component of the idea that European Union citizenship is a meaningful legal and political status that confers signifijicant rights on those who hold it. Taken as a whole, this volume challenges this normal way of thinking about freedom of movement, both within states and within the European Union. It does so, for the most part, not by arguing for a more expansive ideal of freedom of movement as others (including me) have done but rather by identifying the tensions between the formal ideals that democratic states and the European Union say they accept with respect to freedom of movement and their actual practices. One of the themes that runs through many of these chapters is that individual states and the European Union have either created or permitted the creation of direct and indirect barriers to mobility that undermine the promise of freedom of movement. The volume identifijies these barriers, explains why they have arisen, discusses why they are difffijicult to remove, and explores their consequences. The mode of inquiry is primarily descriptive, analytical and explanatory, but the critical implications of the authors’ fijindings are hard to miss and are sometimes explicitly stated. As Willem Maas points out in his opening chapter, the sorts of considerations that often incline states to restrict immigration can emerge whenever there are distinct jurisdictions with important responsibilities for taxation and the delivery of services. Thus, internal freedom of movement, within a state and within the

6

Joseph H. Carens

European Union, will often be seen as a problem by those with lower level jurisdictional responsibilities. Maas shows how impulses to restrict internal mobility have emerged within the European Union, the United States and Canada, despite formal commitments to internal freedom of movement in all three cases. Matthew Longo uses an analysis of American jurisprudence to show that the right to freedom of movement is potentially subject to a wide range of interpretations, some quite narrow and formal and others quite expansive and substantive. Longo himself explicitly defends a wider interpretation of the right as the one most consistent with the underlying values of democratic citizenship on which the right is founded. Maas and Longo agree that the extent to which people are really free to move will depend not just on whether or not they have a legal right to travel and reside but on related restrictions and opportunities. Are benefijits portable? Are there residency requirements for access to legal rights and social programs, and if so, how extensive are these requirements? Are qualifijications and credentials acquired in one jurisdiction recognized in another? Three of the subsequent chapters focus on internal barriers to movement within the European Union. Micheline van Riemsdijk’s chapter illustrates clearly the impact of recognition (or non-recognition) of qualifijications on the freedom to move. She shows how Polish nurses who otherwise have substantial incentives to move face reduced opportunities because of the way in which their qualifijications were evaluated in the negotiations leading to Poland’s accession to the European Union. Their marginal status within Polish society was reproduced in the political process surrounding accession and in the related technical process for evaluating professional qualifijications, processes from which they were largely excluded. The chapter by Michael Johns makes a similar but broader point about the obstacles faced by Polish migrants to Ireland and the United Kingdom. Nurses are not the only Polish workers to be subjected to a deskilling process as a result of their moving to another state in the European Union. In addition, their position as migrants, even though legal, has subjected many Polish workers to economic exploitation, discrimination and hostility from the wider society. The general point again is that a formal right to move is not sufffijicient to establish a real freedom to move. The latter requires background social conditions that are often lacking in the places to which people would like to move. The importance of background social conditions to an efffective freedom to move is even more starkly revealed in Jacqueline Gehring’s chapter on the Roma, a group that has historically been subject to extreme forms of stigmatization and subordination throughout Europe and whose ostensible right to freedom of movement is consequently far less efffective in practice than perhaps any other group in Europe today. Gehring shows that, in the case of the Roma, the European Union has not provided an adequate bulwark against oppression and discrimination by na-

Foreword

tional political authorities. Her chapter is a sobering reminder of the ways in which formal rights can be reduced to a charade if there are no institutional mechanisms available to ensure that rights are respected or if political and legal authorities are unwilling to carry out their institutional responsibilities. If the chapters by Maas, van Riemsdijk, Johns, and Gehring sound a cautionary note about the efffectiveness of the European Union’s guarantee of a right to freedom of movement, the chapter by Anne Staver shows why that right sometimes matters more than one would expect. Usually, we assume that states will favour their own citizens over foreigners. In the fijield of family reunifijication, however, it is advantageous to be a foreigner, at least if one is a citizen of another European state. In recent years, anti-immigrant politics have led to restrictions on family reunifijication in a number of European states. However, European courts have interpreted the right to freedom of movement within the European Union as including a right for European citizens to be accompanied by their family members when they establish a residence within the European Union but outside the state in which they hold citizenship. Staver argues that this surprising outcome should not be attributed to any deep liberal commitments by European courts. Nevertheless, as Staver suggests, we can think of a right to family reunifijication as a right to “the free movement of family members across borders,” and the European Union does a better job in practice of fostering and protecting this dimension of freedom of movement than many European states. The chapter by Harris Mylonas discusses how and why the Greek government tried to encourage people of Greek descent living in the former Soviet Union to move to Greece while discouraging such a move by people with comparable ethnic Greek ties living in Albania. Mylonas also considers the Greek government’s effforts to create economic incentives for those in the former category to settle in some parts of the state rather than others. Like some of the other authors, Mylonas is concerned with the ways in which the deliberate construction of such incentives can interfere with or undermine the right that people are supposed to enjoy to move freely within a given political community, once they have been admitted. At the same time, he argues that those incentives were ultimately inefffective for many of those at whom they were directed, who chose to settle in urban areas where they judged their opportunities to be greater than in the rural and border areas where the Greek government wanted them to settle. So, his chapter is a reminder that even if we may want to criticize certain ways of promoting or restricting movement, having a formal right to move can often be extremely important in enabling people to choose where they will live. Finally, Megan Bradley’s chapter reminds us that one important aspect of the freedom of movement is the right of citizens to return to a state in which they hold citizenship, if they fijind themselves outside its borders. This right of return is guar-

7

8

Joseph H. Carens

anteed in many basic human rights documents. As Bradley shows, however, the extent to which this right is made efffective in ways that actually contribute to human freedom may depend upon how well it fijits with the interests of powerful states. In the aftermath of the war in Bosnia, European democratic states pressured refugees to go back home. Many of these people were expected to return to areas where they were an ethnic minority and where they had been subject to violence from their neighbors. The right of return became, in efffect, a duty to return, in ways that did not reflect any deep commitment to freedom of movement. Conversely, ostensible concerns about security have been used by democratic states to justify a refusal by democratic states to permit their citizens to return, sometimes stranding them abroad in very difffijicult circumstances. In one particularly egregious case, which Bradley discusses at length, the Canadian government went to extreme lengths to prevent Abusfijian Abdelrazik, a Canadian citizen of Sudanese origin, from coming back to Canada, despite the absence of any credible evidence that he posed any security threat. In the end, the government yielded to court rulings and repatriated Abdelrazik, but the case is a reminder of the extent to which the reality of any formal right to freedom of movement depends on the extent to which institutions and authorities respect those rights and interpret them in reasonable ways. Overall then, this book provides an illuminating picture of the complexities and ambiguities of freedom of movement in democratic political communities today.

1.

Equality and the Free Movement of People: Citizenship and Internal Migration Willem Maas

All governments believe that the freedom of movement of Canadians to pursue opportunities anywhere in Canada is an essential element of Canadian citizenship. Governments will ensure that no new barriers to mobility are created.1 Everyone has the right to freedom of movement and residence within the borders of each State.2

This chapter surveys comparative examples of the tension between the promise of citizenship to deliver equality and the particularistic drive to maintain diversity. Democratic states tend to guarantee free movement within their territory to all citizens, as a core right of citizenship. Similarly, the European Union guarantees EU citizens and members of their families (as the core right of EU citizenship) the right to live and the right to work anywhere within EU territory. Such rights reflect the project of equality and undiffferentiated individual rights for all who have the status of citizen. But they are not uncontested. Within the EU, several member states engage in selective border controls and other restrictions on access for EU citizens, for example those who claim social assistance. Similar tensions and attempts to discourage freedom of movement also exist in other political systems, and the article 1

From “Mobility Rights in Canada,” part 2 of the Social Union Framework Agreement (1999), available at http://www.scics.gc.ca/english/conferences.asp?x=1&a=viewdocument&id=638 and discussed in greater detail in the section on Canada below.

2

Article 13.1 of the Universal Declaration of Human Rights (1948). Similarly, article 21.1 of the International Covenant on Civil and Political Rights (1966) specifies that “Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence.”

Willem Maas (ed.), Democratic Citizenship and the Free Movement of People Copyright 2013 Koninklijke Brill NV. ISBN 978-90-04-24327-9 pp. 9-30

10

Chapter 1 – Willem Maas

gives examples from the United States and Canada. Within democratic states, particularly federal ones and others where decentralized jurisdictions are responsible for social welfare provision, it thus appears that some citizens can be more equal than others. Principles such as benefijit portability, prohibition of residence requirements for access to programs or rights, and mutual recognition of qualifijications and credentials facilitate the free flow of people within states and reflect the attempt to eliminate internal borders. Within the growing fijield of migration studies, most research focuses on international migration, movement between states, involving international borders. But migration across jurisdictional boundaries within states is at least as important as international migration. Within the European Union, free movement often means changing residence across jurisdictional boundaries within a political system with a common citizenship, even though EU citizenship is not traditional national citizenship. The European Union is thus a good test of the tension between the equality promised by common citizenship and the diversity institutionalized by borders. Equal citizenship is possible in theory but not in practice. This truth is evident in unitary states but even more so in multilevel political systems such as federal states or the European Union. Governments and other administrative bodies must necessarily discriminate between individuals to determine which persons fall within their jurisdiction and which do not. With the exception of Monaco (which consists of a single municipality) and Vatican City (a peculiar “state” of less than 900 inhabitants), every state in the world contains multiple administrative divisions.3 Because of diffferences among administrative divisions—for example in tax rates, social services, or simply political clout within the overarching system—the mere existence of separate or overlapping jurisdictions inevitably results in individuals subject to one jurisidiction receiving diffferent treatment from those subject to another. Furthermore—this is the main contention of the present article—individuals attempting to move from one jurisdiction to another often encounter barriers or impediments and incentives or disincentives to movement within the putatively equal political space. The barriers or encouragements that individuals face when attempting to move between jurisdictions may be large or small, but even “administrative hassles” may hinder freedom of movement. International instruments such as the Universal Declaration of Human Rights and the International Covenant on Civil and Political 3

Even Liechtenstein, population approximately 35,000, has eleven administrative divisions and San Marino, population approximately 32,000 has nine. The Pacific island micro-states of Nauru and Tuvalu also have several administrative divisions. Of course, the smaller the state, the less room for barriers to free movement. See the section on borders and boundaries below.

Equality and the Free Movement of People

Rights afffijirm that everyone has the right to freedom of movement and residence within the borders of each state but, as argued above, nowhere is such movement completely free. Generally speaking, free movement is higher where there is greater concern for equal citizenship; conversely, the larger (in terms of area and population) or more complex (in terms of administrative jurisdictions) the overarching political system, the higher the likelihood of impediments. Barriers to free movement can grow or persist even in very democratic societies that have a deep concern for equal citizenship. To illustrate this point, this article considers free movement in three multilevel democratic political systems: the European Union, Canada, and the United States. The next section considers the politics of borders and boundaries, amplifying and extending the arguments just made and arguing that “internal migration” (within the borders of a state) deserves as much study as international migration. The following three sections consider, in turn, free movement in the European Union, the United States, and Canada. The conclusion concludes with some general thoughts about the inevitable tension between diversity and equality. Borders, Boundaries, and the Promise of Citizenship Because virtually every state in the world has internal jurisdictional boundaries, it is worth inquiring about the purpose of these borders. Rainer Bauböck writes that the “primary function of a political border is to demarcate the jurisdiction of a political authority. Its secondary function is as a site of control over flows of goods or people. A border that is completely open in the sense of being uncontrolled still clearly [identifijies] the territory within which the laws of a particular government apply. Internal borders in liberal democracies are all open in this way.” 4 It is certainly true that movement within liberal democracies is generally uncontrolled and therefore free. But the right to settle or reside is not always so established, despite the UN Declaration and especially a person’s “freedom to choose his residence,” specifijied in the International Covenant on Civil and Political Rights.5 Comparative analysis demonstrates that barriers to freedom of movement and residence are imposed mostly on “undesirable” individuals or groups. This is hardly surprising but raises the question of how desirability is determined. That passive verb, is determined, can be made active by specifying which individual or institution decides the desirability or undesirability of migrants and others who wish to 4

Rainer Bauböck, “Global Justice, Freedom of Movement and Democratic Citizenship,” European Journal of Sociology / Archives Européennes de Sociologie 50, no. 01 (2009): 10, doi:10.1017/ S000397560900040X.

5

Supra note 2.

11

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Chapter 1 – Willem Maas

move. Just as state agents (e.g. border control offfijicers or civil servants in charge of residency registration) are the relevant authorities for controlling international migration, so sub-state agents control internal migration and free movement, applying sub-state criteria. In non-democratic states, barriers to freedom of movement or residence are common. For example, the hukou system of household registration in China was designed explicitly to hinder internal migration and is only now slowly being reformed, for example by allowing rural residents to purchase ‘temporary urban residency permits.’ 6 Yet the relaxation of barriers is far from complete. For example, the new policies for Chongqing and Guandong provide residence permits only for migrants from the specifijic province or municipality, thereby excluding millions of migrants, potential (who would move if allowed) and actual (who move regardless, becoming ‘illegal migrants’ within their own country): in 2009, for example, “of the 145 million migrant workers (and their 22 million accompanying family members), 51 percent migrated across provincial boundaries.” 7 Another example of such ‘internal passports’ that prohibit or inhibit internal migration is the propiska system that severely restricted free movement in the former Soviet Union and was inherited from the Russian Empire. It was cancelled in 1993 through the “Law on the Right of Russian Citizens to Freedom of Movement, the Choice of a Place of Stay and Residence within the Russian Federation (1993, amended 2004),” reflecting the new Russian constitution’s guarantee (art 27.1) that “Everyone who is lawfully staying on the territory of the Russian Federation shall have the right to freedom of movement and to choose the place to stay and reside.”8 Despite this constitutional guarantee, barriers continue to exist, most notably the 43 so-called closed cities known as Closed Administrative Territorial Formations (Zakrytoe Administrativno-Territorial’noe Obrazovanie, ZATO), home to well over

6

Ling Wu, “Decentralization and Hukou Reforms in China,” Policy and Society 32 no. 1 (March 2013). Wu argues that recent decentralization policies in China do make local governments more powerful and responsible for providing social welfare to their local citizens but have also undermined the incentives for local governments to provide welfare to migrant workers. Thus decentralization has hindered integrating the large number of migrant workers into local cities and promoting equity within national social welfare delivery.

7

Fang Cai, “The Hukou Reform and Unification of Rural-urban Social Welfare,” in Law and Economics with Chinese Characteristics: Institutions for Promoting Development in the TwentyFirst Century, ed. David Kennedy and Joseph E. Stiglitz (Oxford: Oxford University Press, 2013), 452.

8

Available at http://legislationline.org/topics/country/7/topic/10/subtopic/44.

Equality and the Free Movement of People

one million people.9 And of course notorious barriers to free movement were the pass laws in South Africa (particularly the Pass Laws Act of 1952, in force until 1986), specifying where, when, and for how long individuals could remain outside their “homeland”; key to the apartheid system. The jurisdictional boundaries we have been discussing are territorial: physical borders between diffferent administrative units. But jurisdictional boundaries may also be personal: based on personal characteristics or social divisions. This type of organizing logic predates the idea of equal citizenship and prevailed in the Middle Ages (e.g. division of societies into diffferent estates, with diffferent laws) as well as the millet system in the Ottoman Empire, in which members of diffferent confessional communities were governed with their own courts under their own laws.10 Such an alternative logic is reflected in the idea of non-territorial citizenships, an idea which has lost prominence with the rise of the nation-state as the territorial basis for political authority and the idea of equal citizenship. As David Elkins puts it, as “the idea of the nation-state achieved its hegemony as a territorial, all-purpose political organization, it afffected aspects of citizens’ identity. Out of the myriad ways in which each person can be characterized, one’s territorial location in a nation has come to assume overwhelming importance.” 11 As mobility increases, non-territorial citizenship may become an appropriate institutional response to pluralism. It may also be appropriate for indigenous or Aboriginal peoples, “nations” often dispersed territorially or too small for statehood. For example, Alan Cairns champions the 1966 Hawthorn Report conclusion that “in addition to the normal rights and duties of citizenship, Indians possess certain additional rights as charter members of the Canadian community”; this leads to an asymetrical citizenship in which Aboriginal (or First Nations) individuals are “a bit more equal than other Canadians,” what Cairns (following the Report) terms

9

Roemer Lemaître, “How closed cities violate the freedom of movement and other international human rights obligations of the Russian Federation,” Leuven Institute for International Law Working Paper 77 (June 2005), available at http://www.law.kuleuven.be/iir/nl/ onderzoek/wp/WP77e.pdf.

10

A millet system, in which personal status depends on one’s registration within a religious community, was in place as early as 4th Century Persia in the Zoroastrian Assanid Empire and persists in many Middle Eastern states: e.g. in Israel even staunch atheists are registered as Jewish (or differently, if they “belong” to another religion), and in Egypt the operation of family law depends on the individual’s compartmentalization into Muslim, Christian, or Jewish communities.

11

David J. Elkins, Beyond Sovereignty: Territory and Political Economy in the Twenty-first Century (Toronto: University of Toronto Press, 1995), 29.

13

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Chapter 1 – Willem Maas

“Citizens plus.”12 The idea that some inviduals can be “a bit more equal” than others, becoming “citizens plus” with additional rights, can seem jarring to a concern for citizenship founded on equal status. But historically it was not unusual to have “multiple categories and forms of citizenship within the jurisdiction of the same state, as in the ‘active’ and ‘passive’ citizens the French revolutionary regime distinguished until 1792 or the intricate hierarchy of citizenships the Venetian state established during its years of imperial glory.” 13 Such examples illustrate that the dichotomy between insiders with rights (citizens) and outsiders without rights (foreigners) is simplistic and not always accurate. Indeed, it would be wrong to view the existence of multiple categories and forms of citizenship within a single state as historical aberration or anomaly: the reverse is the case. The idea that citizens should have equal political status is a peculiarly modern invention, dating perhaps from the post-1792 French Revolutionary period and fully realized only in the second half of the twentieth century, following the rise of postcolonialism, anti-racism, and universal human rights. (Precursors such as polis citizenship in ancient Greece granted full citizenship to only small segments of society.) The idea of multiple forms of citizenship is evident in the expansion of the franchise: even today there are states in which women do not have equal voting rights, for example, or in which the electoral participation of minorities of various kinds is discouraged. Famously, John Stuart Mill (who in terms of encouraging the participation of women in politics was far ahead of his time) opined that educated people should have more votes than less educated people. The right to vote is a basic condition for democratic inclusiveness, but freedom of movement is equally fundamental to full citizenship. This means that movement within states (between provinces, states, Länder, regions, or even from one municipality to another) is important not only as an empirical phenomenon but as a prerequisite to democracy. “Free movement” here means changing residence across jurisdictional boundaries within a political system with a common citizenship. The presumptive equality promised by common citizenship renders problematic the selective barriers to free movement erected by government or other offfijicial agencies: central, regional, local, functional. Or, conversely, not barriers but incentives to move, targeted at specifijic groups of people or individuals with specifijic characteris12

Philip Resnick and Gerald P Kernerman, eds., Insiders and Outsiders: Alan Cairns and the Reshaping of Canadian Citizenship (Vancouver: UBC Press, 2005); Alan Cairns, Citizenship, Diversity, and Pluralism: Canadian and Comparative Perspectives (Montreal: McGill-Queen’s University Press, 1999); Alan Cairns, Citizens Plus: Aboriginal Peoples and the Canadian State (Vancouver: University of British Columbia Press, 2000).

13

Charles Tilly, “Citizenship, Identity and Social History,” International Review of Social History 40, no. 3 (1995): 8.

Equality and the Free Movement of People

tics. In theory, citizenship means equal and undiffferentiated rights for all citizens, but focusing on free movement shows that the rights of citizenship are variable. In the European Union, EU citizenship grants the right to move and reside freely within the territory of the Member States but there is continual attention to limits imposed on these rights. Similarly, national constitutions usually guarantee rights to free movement but often also limit these rights. Thus, for example, Germany’s Basic Law declares that all Germans shall have the right to move freely throughout the federal territory, but specifijies that this right may be restricted if the absence of adequate means of support would result in a particular burden for the community. Canada’s Charter of Rights and Freedoms similarly declares that Canadians have the right to move to and take up residence in any province but specifijies that this right is subject to any laws providing for reasonable residency requirements as a qualifijication for the receipt of publicly provided social services. And India’s constitution states that all citizens have the right to move freely throughout the territory of India and to reside and settle in any part of the territory of India, but subordinates these rights to “reasonable restrictions” that are “either in the interests of the general public or for the protection of the interests of any Schedule Tribe.” Europe as Area of Free Movement and Equality One of the most important motivations for European integration has been the drive to enhance free movement within Europe: to lower barriers, to break down impediments to movement, to make borders disappear at or at least lose the signifijicance they once had.14 The key right of EU citizenship has thus been the right to live and work anywhere within EU territory. Free movement rights for workers launched the process of European political integration, and the further development of European rights is central to the entire project of integration. Robert Schuman’s aim of reducing the rigidity of borders while not eliminating them or inventing a rationalized geography captures the objective of facilitating and encouraging freedom of movement throughout the entire European space. 15 In 1963, Schuman wrote: “It is not a question of eliminating ethnic and political borders. They are a historical given: we do not pretend to correct history, or to invent a rationalized and managed geography. What we want is to take away from borders their rigidity and what I call their intransigent hostility.”16 Its political evolution explains why the free movement of persons consistently ranks as the key benefijit of European integration. Free movement is the most widely known right of EU citizenship, and 14

Willem Maas, Creating European Citizens (Lanham: Rowman & Littlefield, 2007), 120.

15

Ibid.

16

Cited in Ibid., p. 61.

15

16

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it is also the fijirst thing people think of when asked “what does the European Union mean to you?” Just as a key development in the European Union today is the reduction or elimination of internal boundaries, so too the removal of internal borders was a crucial condition for the succesful rise of states.17 Internal migrations, such as those from rural areas to cities during industrialization, did not cause nationalism, but they did generate needs that nationalism could address. Across Europe, the movement of people that spurred nationalism was migration within the state. A key function of the modern state was to facilitate the free flow of people within its boundaries.18 The rise of a veneer of European central citizenship, over well-established local citizenships, has a parallel in the development of federal citizenship in the United States and other federal states. The process of reaching central citizenship from several units is far from uniform across federal states. In India, for example, there has never been an emphasis on territorially-based state citizenship; instead, the focus has been on the extent to which non-territorial religious and cultural groups should be granted diffferentiated rights. This lack of state citizenship was a conscious choice of the constitutional drafters, meant to diffferentiate the Indian constitution from others, such as that of the United States. B.R. Ambedkar, the chair of the committee that drafted the Indian constitution, proposed “a dual polity with a single citizenship. There is only one citizenship for the whole of India…there is no State citizenship.”19 By contrast, EU citizenship is still derivative of member state citizenship, and these generally resist the expansion of migrant rights to social benefijits, a resistance that has been largely successful because the migrants who benefijit from EU law cannot mobilize sufffijicient pressure to push through their interests.20 At the same time, however, member states have arguably become “semi-sovereign welfare-states” whose policy choices in terms of social rights are subject to increasing European scrutiny.21 European judicial authorities thus have a difffijicult role to play. They must attempt to ensure the harmonization of social policies or at least the access to social 17

Karl Wolfgang Deutsch, Political Community and the North Atlantic Area: International Organization in the Light of Historical Experience (Princeton: Princeton University Press, 1957). This paragraph and the next are based on Willem Maas, “Unrespected, Unequal, Hollow?: Contingent Citizenship and Reversible Rights in the European Union,” Columbia Journal of European Law 15, no. 2 (2009): 271, 278, 279.

18

Maas, Creating European Citizens.

19

Ibid.

20

Lisa Conant, Justice Contained: Law and Politics in the European Union (Ithaca: Cornell Univer-

21

Michael Dougan and Eleanor Spaventa, Social Welfare and EU Law (Oxford: Hart Publishing,

sity Press, 2002). 2005).

Equality and the Free Movement of People

benefijits for all EU citizens regardless of place of residence.22 But they must also leave sufffijicient scope for the maintenance of national citizenship, because citizenship is about the essence of member state identity. In this respect, as in so many others, the EU is not sui generis or unlike other forms of political organization. Federal states and other compound polities have historically been characterized by variation and inequality in terms of the rights they affford members. A key challenge for the EU over the coming decades relates to social entitlements in such areas as health care, education, pensions, and other benefijits, which have come to characterize modern welfare states. Unless EU institutions are able to guarantee some degree of portability and equality to these entitlements, the content of EU citizenship when compared with member state citizenship will remain relatively hollow. But unless member states are allowed to retain some authority, a backlash will result. There is, in other words, an inherent tension between the essentially regulatory role of EU authorities—ensuring that citizens of all the member states may exercise their rights of EU citizenship throughout EU territory—and the administrative power of the member states. EU law promises individuals some degree of access to entitlements throughout the EU, but member states continue to control the welfare programs that give content to citizenship. Balancing the rights of individual European citizens to move, consume services, or fijind employment or housing across the entire territory of the EU on the one hand, with the desire on the other hand of national governments to maintain some degree of preferential treatment for their own citizens, will distinguish the politics of EU rights for the foreseeable future. EU law prohibits any form of discrimination on the basis of nationality: a citizen of any EU member state must be treated in the same way as a citizen of any other EU member state, without discrimination.23 Because citizenship defijines political actors and the rules within which they operate—separating full members of the polity from others, specifying the rights and duties of each category of people, and privileging certain public identities over others—citizenship is always contentious.24 In many national states, both in Europe and elsewhere, the struggle for citizenship has been overwhelmingly a demand for inclusion in the polity, the social dignity 22

See, e.g., Joined Cases C-11 & C-12/06, Morgan v. Bezirksregierung Köln, 2007 O.J. (C 315) 11–12 (precluding a member state from refusing to award an education or training grant to its nationals pursuing their studies in another member state); Case C-499/06, Nerkowska v. Zakład Ubezpieczeń Społecznych Oddział w Koszalinie, 2008 O.J. (C 171) 7–8 (precluding a member state from refusing to pay to its nationals a benefit because they are not resident in the territory of that state but in the territory of another member state).

23

This paragraph and the next draw on Willem Maas, “Migrants, States, and EU Citizenship’s Unfulfilled Promise,” Citizenship Studies 12, no. 6 (2008): 583–595.

24

Maas, Creating European Citizens, 115.

17

18

Chapter 1 – Willem Maas

attached to the right to vote, and the right to earn a living.25 Inclusion in the polity is the process by which segments of society previously excluded from membership in political and socioeconomic institutions are incorporated into these institutions as citizens.26 Critics of EU citizenship observe that the kinds of social movements which demanded inclusion and recognition in the polity and then struggled for expanding rights in nation-states are largely absent at the level of the EU. Yet denying the status of EU citizenship is not quite so clear-cut when compared with the various forms of nested or multilevel citizenship common in federal states, where individuals simultaneously hold citizenship in the national polity and derive important rights from regional or other substate jurisdictions.27 Central governments generally disdain claims to substate “citizenships” such as might be found in “internal nations,” for example, Scottish in Scotland, Québécois (no longer “French Canadian” because of the necessity for a nation to have a territory, a transformation that coincided with the so-called Quiet Revolution) in Québec, Catalan in Catalonia, and so on, even though plurinational states adopt a range of policies to foster accommodation and recognition that challenge the idea of the equality of all citizens.28 As in several early federal states, no one today may become an EU citizen without fijirst becoming a citizen of a member state. But the institution of citizenship developed and changed over time in such federal states, becoming ever more oriented away from the constituent units and toward the central (national) level of government. In light of such comparative examples, the question arises about the extent to which the EU could conceivably take over coordination and policy-making functions from member states on citizenship matters, including questions of attribution and loss of citizenship. The EU citizenship introduced at Maastricht recalls the earlier introduction of a national layer of citizenship over preexisting municipal 25

Judith N. Shklar, American Citizenship: The Quest for Inclusion (Cambridge, MA: Harvard University Press, 1991), 2–3.

26

Harry Eckstein, Regarding Politics: Essays on Political Theory, Stability, and Change (Berkeley: University of California Press, 1992), 345.

27

Vicki C. Jackson, “Federalism and Citizenship,” in Citizenship Today: Global Perspectives and Practices, ed. T. Alexander Aleinikoff and Douglas Klusmeyer (Washington, DC: Carnegie Endowment for International Peace, 2001), 127–182; T. Faist, “Social Citizenship in the European Union: Nested Membership,” Journal of Common Market Studies 39, no. 1 (2001): 37–58; Rainer Bauböck, “Political Boundaries in a Multilevel Democracy,” in Identities, Affiliations, and Allegiances, ed. Seyla Benhabib, Ian Shapiro, and Danilo Petranović (Cambridge: Cambridge University Press, 2007).

28

For a recent work examining such issues, see Ferran Requejo Coll and Miquel Caminal i Badia, eds., Federalism, Plurinationality and Democratic Constitutionalism: Theory and Cases (New York: Routledge, 2012).

Equality and the Free Movement of People

or regional versions. Until the nineteenth century, it was commonly cities rather than nation-states that provided residents with the rights that today are central to nation-state citizenship: the rights of residence and work, of trial in local courts and other civil rights, of political participation, and even to social welfare benefijits.29 The introduction in the nineteenth century of an initially “thin” layer of nation-state citizenship rights over the existing structure of well-established, “thick” municipal citizenships parallels the current overlaying of a “thin” EU citizenship over those same nation-state citizenships. A weakness of EU citizenship compared with central citizenship in federal states is that EU member states remain the fijinal “masters of the treaty” that established it.30 The need for all member states to agree unanimously before treaty changes are made makes it difffijicult to strengthen EU citizenship. For example, during the negotiations that led to the Amsterdam Treaty of 1997, various governments suggested expanding EU citizenship—Ireland proposed granting EU citizens the right to vote in referendums and nonmunicipal elections, establishing an EU volunteer service, and introducing a right to petition the Commission; Italy and Austria jointly proposed introducing a right of petition, a right of association in European trade unions, and a right to education in at least one second language, as well as suggesting that the EU should sign the European Convention on Human Rights and that European political parties should be strengthened. In Austria, the opposition Liberals suggested going even further by extending EU citizenship to third-country nationals who had resided legally within the EU for fijive years, but this proposal lacked government support and was not included in the joint proposal. Italy later suggested giving the Commission the exclusive right of initiative on issues of immigration, asylum, and external borders (meaning that EU legislation in these areas would have to originate with the Commission), giving the European Court full competence to review legislation and hear appeals and ultimately giving the European Parliament co–decision power over these areas rather than having them remain the exclusive competence of member states. France suggested that free movement issues, including visas, asylum, and immigration, should be decided by qualifijied majority voting rather than unanimity, which would also make it easier to pass coordinated European legislation. Finland proposed extending “the social rights and duties of European citizens” by adding new rights to EU citizenship, having the EU sign the ECHR, and enacting an EU Bill of Rights; Portugal even drafted a European 29

Maarten Prak, “Burghers into Citizens: Urban and National Citizenship in the Netherlands During the Revolutionary Era (c. 1800),” in Extending Citizenship, Reconfiguring States, ed. Michael Hanagan and Charles Tilly (Lanham: Rowman & Littlefield, 1999).

30

This paragraph and the next draw on Willem Maas, “Varieties of Multilevel Citizenship,” in Multilevel Citizenship, ed. Willem Maas (Philadelphia: University of Pennsylvania Press, 2013).

19

20

Chapter 1 – Willem Maas

Citizens Charter, which listed all the rights of European citizenship, including social and economic rights, and was intended “to provide citizens a clear picture of the advantages and added value of European citizenship.” But resistance from Denmark and the United Kingdom scuppered all these proposals.31 To meet the Danish and British objections that EU citizenship should not weaken national citizenship, the Amsterdam Treaty added a new clause—“Citizenship of the Union shall complement and not replace national citizenship”—that went well beyond the declaration attached to the Maastricht Treaty, which stated that the question of whether an individual had the nationality of a member state would be settled solely by reference to the national law. Such difffijiculties in reaching unanimous decisions in a Union comprising many member states leads some to dismiss claims about the supposed supranational or postnational nature of EU citizenship and conclude instead that it is transnational: despite increasingly complex multilevel and international confijigurations of rights and membership, citizenship in Europe remains tied to established political communities.32 Yet EU citizenship is not simply a concept but is backed up by supranational institutions with real authority and at least a modicum of bureaucratic capacity. Attempting to further develop the concept of EU citizenship by creating European citizens and encouraging them to use their rights is a role that the European Commission and the European Parliament fulfijill in various ways.33 The Court of Justice of the European Communities has over the years also promoted an expansive reading of European rights. The most notable current formulation, repeated time and again with the same wording in a series of Court judgments since 2001, is that “Union citizenship is destined to be the fundamental status of nationals of the Member States, enabling those who fijind themselves in the same situation to enjoy the same treatment in law irrespective of their nationality, subject to such exceptions as are expressly provided for.”34 Multilevel citizenship in Europe is not simply about passports but about individuals being able to draw on rights at multiple levels of political authority. The development of citizenship of the European Union raises anew the question of the defijinition of citizenship and reminds us of the complex historical patterns of variegated and multitiered citizenship. The next two sections consider two other examples of variegated citizenship, the United States and Canada, with specifijic reference to freedom of movement.

31

These examples are covered in Maas, Creating European Citizens, 68–69.

32

Espen D.H. Olsen, Transnational Citizenship in the European Union: Past, Present, and Future (London: Continuum, 2012).

33

Maas, Creating European Citizens.

34

Grzelczyk, case C-184/99, ECR 2001 I-06193 (20 September 2001).

Equality and the Free Movement of People

Interstate Mobility in the United States The relationship between federal and state protection of rights in the United States has long animated legal discussion. For example, the US Supreme Court in The Slaughter-House Cases, established that “there is a citizenship of the United States, and a citizenship of a State, which are distinct from each other, and which depend upon diffferent characteristics or circumstances in the individual.” 35 The existence of these two levels of citizenship could result in competition between the two levels. For example, US Supreme Court Justice William J. Brennan issued in 1977 what he termed “a clear call to state courts to step into the breach” left by what he felt was the Supreme Court’s lacklustre and diminished rights protection; judicial federalism would thus provide a “double source of protection for the rights of our citizens.”36 He argued that “state courts no less than federal are and ought to be the guardians of our liberties,” and that “state courts cannot rest when they have affforded their citizens the full protections of the federal Constitution. State constitutions, too, are a font of individual liberties, their protections often extending beyond those required by the Supreme Court’s interpretation of federal law.”37 The aim was to reinvigorate a federalism animated by “the fundamental promises wrought by the blood of those who fought our War between the States, promises which were thereafter embodied in our fourteenth amendment—that the citizens of all our states are also and no less citizens of our United States.”38 Freedom of movement between the US states exhibits some of the same dynamics as free movement in the European Union, given the two levels of US citizenship: state and federal. One of the peculiarities of the US is that freedom of movement is not guaranteed by the federal constitution. As Matthew Longo writes, this striking omission has been a source of considerable debate.39 For many scholars, the fact that freedom of movement within the United States is not mentioned in the constitution is a sign that it was so clearly intended as a freedom that the drafters of the constitution did not think it needed to be stated, 40 with free movement intrinsic to 35

83 U.S. 36 (1873)

36

William J. Brennan Jr., “State Constitutions and the Protection of Individual Rights,” Harvard Law Review 90, no. 3 (1977): 503.

37

Ibid., 491.

38

Ibid., 490.

39

Longo chapter, this volume.

40

A.P. van der Mei, “Freedom of Movement for Indigents: A Comparative Analysis of American Constitutional Law and European Community Law,” Arizona Journal of International and Comparative Law 19:3 (2002), 810: “The omission of a reference to the right to travel, which encompasses both the right to cross inter-state borders and the right to migrate, has

21

22

Chapter 1 – Willem Maas

the very nature of federalism. 41 By contrast, other scholars contend that it was omitted deliberately, since Article IV of the Articles of Confederation (1781), the predecessor to the Constitution, did include freedom of movement: “to secure and perpetuate mutual friendship and intercourse among the people of the diffferent states in this Union, the free inhabitants of each of these states…shall have free ingress and egress to and from any other state.”42 Through an extensive analysis of the oscillation in US judicial decisions concerning freedom of movement within the US, Longo demonstrates that in two centuries of decisions, US courts generally support freedom of movement between US states, but cannot agree on why or under what conditions it can be curtailed. In the so-called “Passenger Cases” (Smith v. Turner (1849)), Chief Justice Taney, in dissent, declared that travel was to be protected as an aspect of national citizenship: “For all the great purposes for which the Federal government was formed, we are one people, with one common country. We are all citizens of the United States; and, as members of the same community, must have the right to pass and repass through every part of it without interruption, as freely as in our own States.”43 As Longo explains, the most cited constitutional source for freedom of movement was the Privileges and Immunities Clause (Art. IV), which protects federal rights from state infringement, but a minority of justices placed it within the Commerce Clause (Art. I), which enables federal oversight over inter-state commerce. This ambiguity was extended in the landmark case of Edwards v. California never been seen as a denial of the right. On the contrary, the framers of the Constitution probably took the right to travel so much for granted that they considered any reference to the right superfluous...The right simply exists and the absence of an explicit reference to it may, if anything, symbolize how deeply the notion of freedom of movement is rooted in American thinking.” Cited in Ibid. 41

S.F. Kreimer, “The Law of Choice and Choice of Law: Abortion, the Right to Travel and Extraterritorial Regulation in American Federalism,” New York University Law Review 67:3 (1992): 451-519. Cited in Ibid.

42

Articles of Confederation (1781) (Art. IV, §1). Longo cites G.B. Hartch, “Wrong Turns: A Critique of the Supreme Court’s Right to Travel Cases,” William Mitchell Law Review 21 (1995): 457-484 at 476-7: “In terms of original intent, there is no evidence that the Framers regarded the right to travel as a fundamental right. In fact, if anything, originalist evidence points to jettisoning the right altogether. For example, when drafting the Constitution, the Framers did not include any provision guaranteeing the right to travel, even though the Articles of Confederation had…This omission coupled with the inclusion of the interstate Commerce Clause granting Congress power to regulate interstate travel strongly suggests that the Framers did not view the right to travel as vital to the new nation.”

43

Smith v. Turner, 48 U.S. (7 How.) 283 (1849) at 492. Cited in Longo.

Equality and the Free Movement of People

(1941), which struck down a California statute attempting to prosecute anyone who knowingly brought poor non-residents across state lines. As Justice Robert H. Jackson (later the chief United States prosecutor at the Nuremberg Trials) wrote in the judgement, to deny freedom of movement to the poor would introduce a caste system utterly incompatible with the spirit of our system of government. It would permit those who were stigmatized by a State as indigents, paupers, or vagabonds to be relegated to an inferior class of citizenship. It would prevent a citizen, because he was poor, from seeking new horizons in other states. It might thus withhold from large segments of our people that mobility which is basic to any guarantee of freedom of opportunity. The result would be a substantial dilution of the right of national citizenship, a serious impairment of the principles of equality…[it] is a privilege of citizenship of the United States protected from State abridgement, to enter any State of the Union either for temporary sojourn or for the establishment of permanent residence therein and for gaining resultant citizenship thereof. If national citizenship means less than this it means nothing. 44

Longo argues that Edwards was groundbreaking, but did not resolve disagreement over the source of freedom of movement. This disagreement would continue in the Great Society, the most signifijicant development in US social policy, brought about by the civil rights movement. The New Deal era convinced many of the need to transfer responsibility for social programs from the state to the federal level. But the major transformation of US social policy came only after the enfranchisement of African Americans. In contrast to the New Deal, which arose in response to the economically troubled times of the Great Depression of the 1930s, Great Society programs were announced in the economic prosperity of the 1960s. Conceptualized during the Kennedy presidency, these programs were introduced during the administration of his successor, Lyndon B. Johnson. The Johnson administration banned discrimination in employment and segregation of public spaces in 1964, and followed it the next year with a law guaranteeing voting rights for African Americans across the US. Furthermore, it was only with the civil rights movement that a federalization of criminal law began. 45 The civil rights movement also inaugurated policies intended to expand social welfare provisions. A major aim of these programs was to eliminate poverty, and there remains today a vibrant scholarly debate about the importance of race in explaining

44

Edwards v. California 314 U.S. 160 (1941), at 181-3.

45

G. Alan Tarr and Ellis Katz, “Introduction,” in Federalism and Rights, ed. Ellis Katz and G. Alan Tarr (Lanham MD: Rowman & Littlefield, 1996), ix–xxiii.

23

24

Chapter 1 – Willem Maas

diffferences in the development of social policy across diffferent states in the US. 46 The salient points are that the expansion of civil rights in the US heralded the expansion of rights to welfare and that these twin expansions privileged central (federal) over local (state) authority. The “federalization” of social rights remains contested, however. The enduring tension between state and federal citizenship in the US was exemplifijied in Saenz vs Roe, decided by the US Supreme Court in 1999. The case involved a mother receiving Aid to Families with Dependent Children (AFDC, popularly known as “welfare”) who moved to California but was initially denied continuation of her benefijits. Seven justices ruled that the “right to travel in this context entails the right of travelers electing to become permanent residents of a State to be treated like other citizens of that State.” This would have appeared to be a decisive blow for federal rather than state jurisdiction over citizenship and social rights, but the remaining tension is evident in the dissenting opinion, authored by Chief Justice Rehnquist, joined by Justice Thomas. Rehnquist wrote that the “right to travel and the right to state citizenship are distinct, non-reciprocal, and not a component of the other. This case is only about the right to immediately enjoy all the privileges of being a California citizen versus the State’s ability to test the good faith assertion of the right.”47 If Rehnquist and Thomas had convinced three other justices to join them, the rights of Americans to move between states would once again have been dissociated from their social rights. Free Movement in Canada Just as in the European Union and the United States, internal freedom of movement within Canada has faced a contentious history. Compared with US states, Canadian provinces face fewer fijiscal and policymaking restraints from the federal government. Coupled with perhaps a greater diversity than the United States (though not Europe), in terms of two offfijicial languages, Canada’s extensive geography has prompted the federal government to promote, simultaneously, equality and the respect for diversity. This is epitomized in the Social Union Framework Agreement (SUFA), signed in February 1999 by the prime minister of Canada and nine of the ten provincial premiers. Only the premier of Québec, the sovereignist Lucien Bouchard, did not sign the agreement.

46

Theda Skocpol, “Race and the Organization of Welfare Policy,” in Classifying by Race, ed. Paul E. Peterson (Princeton NJ: Princeton University Press, 1995), 156–187.

47

Saenz v. Roe. 526 US 489 (1999).

Equality and the Free Movement of People

As explained in a 2001 training manual from the Canadian Centre for Management Development (now the Canada School of Public Service), the Government of Canada’s main educational institution for federal public servants: Canada is underpinned by political, economic and social unions. As the provinces came together to form Canada, a political union was created. With the establishment of a common currency and market, an economic union was born. In recent years the term social union has come into common parlance. Each union is based on the premise that greater things can be accomplished collectively than individually, but this must be done within the framework of Canada’s federal political system. The policymaking powers of the federal and provincial governments are defijined and protected in the constitution, each government having certain responsibilities. The constitution defijines the powers of the federal and provincial governments in exclusive terms, but the reality is that delivering policies to citizens requires cooperation and coordination among governments. The social union is the network of social policies and programs that have been developed over many decades. While the specifijic content of the social union continues to evolve as governments seek to best meet the needs of Canadians, it remains rooted in the principles of equality, fairness, respect for diversity, and mutual aid and responsibility for one another. The social union has become a source of pride and solidarity to Canadians; it is a defijining characteristic of our country. 48

This optimistic and sanitized history sounds, in tone and even in wording, remarkably similar to texts published by European Union institutions: replace “Canada” with “Europe,” “provinces” with “member states,” and “Canadians” with “Europeans” and the text could easily appear in documents of the European Commission or other EU institutions. This section will explain this focus on “equality, fairness, respect for diversity, and mutual aid and responsibility for one another” and the 1999 agreement cited in footnote 1, above: “All governments believe that the freedom of movement of Canadians to pursue opportunities anywhere in Canada is an essential element of Canadian citizenship. Governments will ensure that no new barriers to mobility are created.” A useful place to start the explanation is the Canadian Charter of Rights and Freedoms, part of the Constitution Act, signed in 1982. Under the heading “Mobility Rights,” section 6 of the Charter provides:

48

John McLean, CCMD Roundtable on the Implementation of the Social Union Framework Agreement (Canada), and Canadian Centre for Management Development, Implementing the Social Union Framework Agreement: a Learning and Reference Tool (Ottawa: Canadian Centre for Management and Development, 2001).

25

26

Chapter 1 – Willem Maas (1) (2)

(3)

(4)

Every citizen of Canada has the right to enter, remain in and leave Canada. Every citizen of Canada and every person who has the status of a permanent resident of Canada has the right a) to move to and take up residence in any province; and b) to pursue the gaining of a livelihood in any province. The rights specifijied in subsection (2) are subject to a) any laws or practices of general application in force in a province other than those that discriminate among persons primarily on the basis of province of present or previous residence; and b) any laws providing for reasonable residency requirements as a qualifijication for the receipt of publicly provided social services. Subsections (2) and (3) do not preclude any law, program or activity that has as its object the amelioration in a province of conditions of individuals in that province who are socially or economically disadvantaged if the rate of employment in that province is below the rate of employment in Canada.

Even on a purely textual basis, it is clear that the free movement rights in the Canadian constitution are not unlimited; indeed, the restrictions inserted into the text make free movement rights in Canada comparable to free movement rights within the European Union. The political dynamics are comparable. Just as in Europe and the United States, the central government in Canada strives to eliminate or reduce barriers to free movement, and to encourage actual use of the common free movement rights. In an interview in 1997, former prime minister Pierre Trudeau asserted that the “Charter was not intended to subordinate the provinces to the federal government through judicial interpretation of the document, but to act as an instrument of national unity by highlighting what Canadians have in common, not by limiting how the provinces could act.”49 This is an example of Trudeau’s attempt to counter criticism, often but certainly not exclusively from his home province of Québec, that the Charter and the rest of the Constitution Act 1982 were indeed centralizing documents that would lead to an “Americanization” (intended pejoratively) of Canadian political culture, erasing local diffferences.50 49

James B. Kelly, Governing with the Charter: Legislative and Judicial Activism and Framers’ Intent, Law and Society Series (Vancouver: UBC Press, 2005), 220.

50

Samuel V. LaSelva, “Federalism as a Way of Life: Reflections on the Canadian Experiment,” Canadian Journal of Political Science 26, no. 2 (1993): 219–234; Contested Constitutionalism: Reflections on the Canadian Charter of Rights and Freedoms, Law and Society Series (Vancouver: UBC Press, 2009); Peter W. Hogg, “Federalism Fights the Charter of Rights,” in Federalism and Political Community: Essays in Honour of Donald Smiley, ed. David P. Shugarman and Reginald Whitaker (Peterborough: Broadview Press, 1989), 249–266.

Equality and the Free Movement of People

Whatever one’s views on this issue, it is incontrovertible that the federal government under Trudeau had an overall policy objective of promoting national unity by making it easier for Canadians to move from province to province—but it proved impossible to obtain provincial agreement to the proposed unqualifijied guarantee of free movement.51 For example, Charter section 6(4), permitting any restrictions on internal free movement fostering “the amelioration in a province of conditions of individuals in that province who are socially or economically disadvantaged if the rate of employment in that province is below the rate of employment in Canada,” emerged from a 15 November 1981 agreement and “was apparently inserted to accommodate Newfoundland’s requirement that its residents be given preference in employment in the offfshore oil industry.”52 Whereas in Europe such objections would typically lead to specifijic opt-outs for specifijic member states, in Canada they resulted in a general opt-out for all provinces with higher-than-average unemployment. Despite such exceptions, however, the overall efffects of the Charter are “to set limits to the diversities of treatment by provincial governments, and thus to strengthen Canadian as against provincial identities.”53 In the 1996 Speech from the Throne, laying out the government’s legislative agenda, the Government of Canada announced it would “continue to protect and promote unhampered social mobility between provinces and access to social and other benefijits.”54 This and similar measures to promote unity and internal free movement resulted in intergovernmental negotiations over what would later form the Social Union Framework Agreement. The motivation was clear: voters in the Canadian province of Québec had just narrowly decided to stay in Canada, in a referendum held 30 October 1995. On the question “Do you agree that Quebec should become sovereign after having made a formal offfer to Canada for a new economic and political partnership within the scope of the bill respecting the future of Quebec and of the agreement signed on June 12, 1995?,” fully 49.4% of voters voted for sovereignty; only 50.6% of voters voted to remain in Canada. (An earlier referendum, in 1980, had resulted in a much wider margin of 40.4% to 59.6%.) Only days after the Quebec referendum, the government of Canada’s western-most province of British Columbia adopted (by Order in Council No. 1348 of 2 November 1995) Regulation 462/95 which, efffective 1 December 1995, imposed a 90 day residency requirement on persons entering the province before they were eligi51

Ian Greene, The Charter of Rights (Toronto: James Lorimer, 1989), 45, 46.

52

Peter W. Hogg, Canada Act 1982 Annotated (Toronto: Carswell, 1982), 25.

53

Alan C. Cairns, “Recent Federalist Constitutional Proposals: A Review Essay,” Canadian Public Policy (1979), p.348.

54

Speech from the Throne to open the Second Session Thirty-Fifth Parliament of Canada, 27 February 1996, section 5.

27

28

Chapter 1 – Willem Maas

ble to receive social assistance. The measure had been long in coming, as successive British Columbia governments had complained of social dumping; in a poor fijiscal climate exacerbated by funding cuts from the federal government, other provinces, notably Ontario (Canada’s largest province by population) and Alberta (bordering on British Columbia and hence relatively easy to move from), were reducing their social benefijits, resulting in an influx of people claiming social assistance in British Columbia. This direct challenge to free movement in Canada was ultimately resolved in 1997 by an agreement between the federal and British Columbia governments in which the federal government agreed to compensate British Columbia for “the special pressures faced by B.C. as a result of internal migration.”55 The agreement also set the stage for the SUFA discussions because they promised a two-year review of internal mobility within Canada. Meanwhile, preferential hiring practices had been a longstanding issue between Ontario and Quebec, with Quebec not permitting Ontario construction workers to work in Quebec on the basis that they did not meet Quebec’s training standards: by the late 1990s, six times as many Quebec construction workers in Ontario than Ontario workers in Quebec.56 Tension peaked between Ontario and Quebec when the government of Quebec excluded Ontario contractors from bidding on the construction of a new casino in Hull, immediately across the river from Ottawa. Following the incident, the Ontario government passed the suggestivelynamed Fairness is a Two-Way Street Act in 1999, resulting in hundreds of Quebec construction workers being dismissed from Ontario projects. Ontario also hired more inspectors to ensure Quebec workers were meeting health, tax, and labour regulations.57 The law was ultimately repealed as a result of negotiations between the two provinces. In a key diffference with free movement in Europe, federal involvement in free movement of workers is quite limited. This is because of the constitutional division of powers which gives provinces (rather than the federal government) the authority to regulate employment and services, including professions. This division of powers results in interprovincial agreements, such as that between Ontario and Quebec. For example, the aptly-named Joint Labour Mobility Committee monitors progress in achieving full labour mobility pursuant to the Ontario-Quebec Trade and 55

British Columbia Government Communications Office: “PM, Premier Settle B.C. Residency Dispute, Agree to New Co-operation on Mobility, Immigration and Asia-Pacific,” available at http://www2.news.gov.bc.ca/archive/pre2001/1997/0475.asp

56

Rafael Gomez and Morley Gunderson, “Barriers to the Inter-Provincial Mobility of Labour” (Working Paper Series - Economic Analysis and Statistics, Industry Canada, WP 2007-09, 2007), http://www.ic.gc.ca/eic/site/eas-aes.nsf/eng/ra02043.html.

57

Ibid.

Equality and the Free Movement of People

Cooperation Agreement of 2009. The Supreme Court of Canada generally upholds the constitutionality of provincial statutes in core areas of provincial responsibility, including labour policy, education policy, social policy, election acts, and public safety.58 Because of this, there is a tension in Canada between the overarching Canadian citizenship and policies and laws which assert provincial diffference. This is evident in proposals to create a Quebec citizenship, which “is something normally associated with sovereign states—not sub-state nationalities.”59 The best conclusion is that “Canada will continue to combine features of both a territorial and a plurinational federation into the indefijinite future.”60 Conclusion Even in unitary states, local or regional authorities may develop administrative practises which discriminate between residents of one part and another part of the overarching jurisdiction. In federal states and other multilevel political systems, such as the European Union, there is a constant struggle by central authorities to maintain program portability and encourage freedom of movement within the common political space. Historically, local citizenship was not so much of an issue until “citizenship” came to mean, with the rise of the welfare state, access to social programs. In the process of consolidating their states, one of the fijirst projects that national governments undertook was to facilitate and encourage freedom of movement within state territory as a core right of common citizenship. George Brown’s intervention on the 1867 constitution, the British North America Act, that “the proposal now before us is to throw down all barriers between the provinces—to make a citizen of one, citizen of the whole,” captures this objective.61 This is similarly an important aim of federal citizenship in the United States and it is also the key aspect of European Union citizenship: to make a citizen of any member state a citizen of the whole of Europe. The political contestation surrounding the project of making equal citizens out of many diffferent individuals—in the United States, Canada, Europe, and elsewhere—means that scholarship examining the encouragement or discouragement of migration across jurisdictional boundaries within political sys58

Kelly, Governing with the Charter, 195. See generally the section entitled “Reconciling Rights

59

Philip Resnick, “Canada: A Territorial or a Multinational Federation?,” in Federalism, Plurina-

and Federalism.” tionality and Democratic Constitutionalism: Theory and Cases, ed. Ferran Requejo Coll and Miquel Caminal i Badia (New York: Routledge, 2012), 182. 60

Ibid.

61

Intervention of 8 February 1865, Legislature of the United Province of Canada debate on the resolution for a union of the British North American colonies.

29

30

Chapter 1 – Willem Maas

tems is at least as important as that concerned with international migration across state borders.

2.

Right of Way? Defining Freedom of Movement within Democratic Societies1 Matthew Longo

What Kind of Right is Mobility? “Free movement by the citizen is…dangerous to a tyrant” – Aptheker v. Secretary of State (1964).2 “That citizens can walk the streets, without explanation or formal papers, is surely among the cherished liberties that distinguish this nation from so many others” – Gomez v. Turner (1982).3

Freedom of movement is perhaps our most basic human right, distinguishing liberty from servitude. In advanced democracies it is considered a core right, constitutive of citizenship4 and promoting “the normative values of constitutional democracy: individual autonomy and self-determination, self-realization, truth-seeking, understanding, problem-solving, self-government, and social change”.5 It is widely accepted that individuals in liberal societies should be as free as possible to determine life choices—occupation, residency, partner—and should not be restricted to certain

1

The author would like to thank Joe Carens, Willem Maas, Patrick Neal, Norma Thompson, Richard Bolar, Luke Thompson and Nina Ball-Pesut for comments on earlier drafts of this chapter.

2

Aptheker v. Secretary of State, 378 U.S. 500 (1964), at 519.

3

Gomez v. Turner, 672 F. 2d 134 (1982), at 143.

4

E. Balibar, “Europe, an ‘Unimagined’ Frontier of Democracy,” Diacritics 33: 3 (2003): 36-44.

5

J.M. Woods, “Travel that Talks: Toward First Amendment Protection of Freedom of Movement,” George Washington Law Review 65: 1 (1996): 106-129, at 109.

Willem Maas (ed.), Democratic Citizenship and the Free Movement of People Copyright 2013 Koninklijke Brill NV. ISBN 978-90-04-24327-9 pp. 31-56

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Chapter 2 – Matthew Longo

geographic areas to achieve those goals.6 Rainer Bauböck explains the centrality of freedom of movement to liberal societies as follows: From a liberal perspective, freedom of movement should be seen as having both an instrumental value for autonomy and an intrinsic value of autonomy. Human beings are not by nature sedentary animals. Being confijined in one’s movements is not only bad because of the opportunities one thereby misses elsewhere, but also because it is experienced as a constraint on freedom itself. The right to free movement is therefore not merely an instrument for other freedoms but is, alongside the other basic freedoms of thought, speech and association, also a core aspect of what it means to be free.7

The right to travel—in this chapter, the terms ‘movement,’ ‘mobility’ and ‘travel’ are inter-changeable, denoting movement within national borders—and the associated right to residence, is also explicitly protected by international law. The Universal Declaration of Human Rights (1948) states: “Everyone has the right to freedom of movement and residence within the borders of each state”.8 The International Covenant on Civil and Political Rights (1976) provides that “Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence”.9 Article 18 of the treaty establishing the European Community (1957) provides that EC citizens “shall have the right to move and reside freely within the territory of the Member States”.10 Indeed, freedom of mobility is a driving force behind the EU, variously described as “a key ingredient of the freedom rationale in the EU area of freedom, security, and justice,”11 and “the bedrock upon which the entire construction of European rights has been built”.12 6

J.H. Carens, “Migration and Morality. A Liberal Egalitarian Perspective,” in Free Movement: Ethical Issues in the Transnational Migration of People and of Money, eds. B. Barry and R.E. Goodin (Philadelphia: Pennsylvania State University Press, 1992).

7

R. Bauböck, “Global Justice, Freedom of Movement and Democratic Citizenship,” Arch. Europ. Sociol. 1 (2009): 1-31, at 7.

8

UN General Assembly, Resolution 217 (U.N. Doc. A/810, Art. 13).

9

International Covenant on Civil and Political Rights, Mar 23, 1976, (999 U.N.T.S. 171, Art. 12).

10

Treaty establishing the European Economic Community (TEEC), Mar 25, 1957 (Art. 18).

11

S. Carrera, “What Does Free Movement Mean in Theory and Practice in an Enlarged EU?” European Law Journal 11:6 (2005): 699–721, at 699.

12

W. Maas, Creating European Citizens (Plymouth, UK: Rowman & Littlefield Publishers, Inc, 2007), at 5. The importance of mobility to the developing conception of Europe is further evident in Eurobarometer polls, which consistently place mobility among the highest sources of euro-legitimacy. See for example R. Bellamy, “Evaluating Union Citizenship: Belonging, Rights and Participation within the EU”, Citizenship Studies 12:6 (2008): 597-611.

Defining Freedom of Movement within Democratic Societies

In the US, the Courts have variously referred to mobility as “the very essence of a scheme of ordered liberty”,13 and “as close to the heart of the individual as the choice of what he eats, or wears, or reads”.14 Yet even in the most advanced democratic societies this right is often unprotected, or highly contested. In Europe, member states are increasingly re-asserting their sovereignty and barring entry and exit to non-nationals and perceived undesirables (such as the Roma). In the United States, challenges to mobility are myriad, especially for the poor and new-arrivals (such as Mexican immigrants).15 What is it about the right to travel that makes it so difffijicult to protect? One reason is that despite being widely considered an essential democratic right—and vociferously asserted as such—it remains for the most part un-delimited in meaning and scope. Thus, to understand the challenges that face freedom of movement, we must ask: what kind of right is freedom of movement? What are its defijining attributes and limitations? What restrictions can democratic societies legitimately impose upon the freedom of movement, and under what circumstances? This subject is especially complex in federated states, with multiple tiers of government (as is true in both the US and the EU). We might further ask, for example: does the right to travel protect travel both within states or jurisdictions and between them? In this chapter, I approach these questions through an in-depth look at United States Supreme Court rulings on freedom of movement—an illustrative case, given the signifijicant record of court cases, and varieties of obstacles faced. For over 200 years the Court has defended freedom of movement, but it has done so ambiguously. Indeed, as one legal scholar, Gregory B. Hartch, explains, “the right to travel remains somewhat of an enigma—an ill-defijined right emanating loosely from vari13

Palko v. Connecticut, 302 U.S. 319 (1937), at 325.

14

Eggert v. City of Seattle 505 P.2d 801 (Wash. 1973), at 801.

15

Offering a comparative look at obstacles to free movement in the US and the EU, van der Mei writes: “many of the American states and the EC Member States have objected to a right to freedom of movement, which would enable indigents to move to and establish residence in other states. Particularly, economically better developed states have always feared that their comparatively high level of social benefits would attract citizens of the less developed states. The wealthier states usually argue that a large influx of citizens, moving for the sole purpose of collecting higher benefits, could affect the funding of welfare or social assistance systems. In order to protect themselves against “welfare migration” or “social tourism,” both the American and the European states have argued that they need legal powers to restrict the ability of indigent nationals of other states to establish residency in their territories” (A.P. van der Mei, “Freedom of Movement for Indigents: A Comparative Analysis of American Constitutional Law and European Community Law”, Arizona Journal of International and Comparative Law 19:3 (2002): 804-5).

33

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ous penumbras within the Constitution”.16 This review of US court decisions uncovers contestation over scope: do we want an all-inclusive right that blocks offf legislation that could possibly influence the right to travel? Or do we want a more narrow sense of the right in which only clear, direct obstacles to travel are restricted? The former might force the Court to strike down countless state laws, reached through the democratic process. The latter might enable state legislatures to bias against new migrants and create diffferential citizenship, contrary to an open federal union. Expanding upon this US-centric frame, I engage a normative discussion on how freedom of movement should be defijined by liberal societies. I argue in favor of a ‘wide’ defijinition of the right to travel—namely, one that includes associated rights, such as residency, and protects against indirect impediments, not merely direct ones. This defijinition gets at the core of what it is about travel we are trying to protect—which is not merely movement, but a bundle of rights, for which mobility is an enabler. I further conclude that a wide defijinition alone satisfijies the demands of democratic citizenship. Freedom of movement is too frequently taken for granted in studies of citizenship; it is high time we consider carefully the scope of this right, and what is at stake in this choice. Freedom of Movement in the United States: Obstacles and Solutions The central conundrum of mobility in the United States is the omission of the right to travel from the Constitution. This has been a source of considerable debate.17 For many scholars, the fact that there is no enumerated right to travel is a sign that it was so clearly intended as a freedom that the founders did not think it needed to be stated,18 with the right to travel intrinsic to the very nature of federalism.19 By con16

G.B. Hartch, “Wrong Turns: A Critique of the Supreme Court’s Right to Travel Cases,” William Mitchell Law Review 21 (1995): 457-484, at 458.

17

See e.g. Z. Chafee, Three Human Rights in the Constitution of 1787 (Lawrence: University of

18

For example, van der Mei writes: “The omission of a reference to the right to travel, which

Kansas Press, 1956). encompasses both the right to cross inter-state borders and the right to migrate, has never been seen as a denial of the right. On the contrary, the framers of the Constitution probably took the right to travel so much for granted that they considered any reference to the right superfluous...The right simply exists and the absence of an explicit reference to it may, if anything, symbolize how deeply the notion of freedom of movement is rooted in American thinking” (2002: 810). 19

S.F. Kreimer, “The Law of Choice and Choice of Law: Abortion, the Right to Travel and Extraterritorial Regulation in American Federalism,” New York University Law Review 67:3 (1992): 451-519.

Defining Freedom of Movement within Democratic Societies

trast, other scholars contend that it was omitted deliberately.20 After all, Article IV of the Articles of Confederation (1781), the predecessor to the Constitution, did include such a provision, stating that “to secure and perpetuate mutual friendship and intercourse among the people of the diffferent states in this Union, the free inhabitants of each of these states…shall have free ingress and egress to and from any other state”.21 Yet this provision was removed from Article IV of the Constitution which guarantees the “privileges and immunities” of citizenship. We cannot know the intentions of the Framers. However, the omission of the right to travel as an enumerated right has generated extensive discussion of how freedom of movement should be treated. The oscillation in Court decisions gives a precise and enduring window into the evolving nature of the right to travel, as well as what’s at stake in the decision. Early US Court Decisions In the early days of the federation there was little contest over the un-enumerated right to travel. This is manifest in the almost immediate decision by the Pennsylvania State Constitution (1790) that “emigration from the state shall not be prohibited”.22 This provision, which mimicked the Articles of the Confederation, was echoed in Corfijield v. Coryell (1823),23 a case involving a New Jersey statute that barred out-ofstate residents from digging for oysters or clams in state waters. The Pennsylvania Court upheld the statute, but nonetheless cited the Privileges and Immunities Clause (Art. IV) to assert that it was the “right of a citizen of one state to pass through or to reside in any other state, for purposes of trade, agriculture, [and] professional pursuits”.24 This early case was critical both in asserting the right to travel, and in equating movement and residence; however, it was limited to the protection of interstate travel, rather than intra-state travel—an important distinction, discussed below. 20

Hartch writes: “In terms of original intent, there is no evidence that the Framers regarded the right to travel as a fundamental right. In fact, if anything, originalist evidence points to jettisoning the right altogether. For example, when drafting the Constitution, the Framers did not include any provision guaranteeing the right to travel, even though the Articles of Confederation had…This omission coupled with the inclusion of the interstate Commerce Clause granting Congress power to regulate interstate travel strongly suggests that the Framers did not view the right to travel as vital to the new nation” (1995: 476-7).

21

Articles of Confederation (1781) (Art. IV, §1).

22

Penn. Constitution (1790) (Art. IX, §25).

23

Corfield v. Coryell, 6 F. Cas. 546 (C.C.E.D. Pa. 1823).

24

Ibid, at 552.

35

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Shortly thereafter in the so-called “Passenger Cases” (Smith v. Turner (1849)),25 Chief Justice Taney, in dissent, declared that travel was to be protected as an aspect of national citizenship: For all the great purposes for which the Federal government was formed, we are one people, with one common country. We are all citizens of the United States; and, as members of the same community, must have the right to pass and repass through every part of it without interruption, as freely as in our own States. 26

This is one of the most cited passages in explaining why there is a right to travel. Moreover it is taken to equate intra-state travel with inter-state travel. The right to travel fijirst came out as part of the majority decision in the landmark Crandall v. Nevada (1868),27 when the Court struck down a Nevada statute to impose a tax on each person leaving the state, levied against railroad and stage companies. Here, the Court explicitly recognized that states had the potential to “totally prevent or seriously burden” freedom of movement, which it was the Court’s duty to protect. Further, an important subtext of Crandall—the most important of the Reconstruction Era freedom of movement cases—was that states were attempting to create obstacles to bar blacks from their borders.28 However, the Privileges or Immunities Clause of the Fourteenth Amendment, ratifijied in 1868 states that “all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside”.29 Thus both mobility and residency were protected by the Fourteenth Amendment irrespective of race or poverty.30

25

Smith v. Turner, 48 U.S. (7 How.) 283 (1849).

26

Ibid, at 492.

27

Crandall v. Nevada, 73 U.S. (6 Wall.) 35 (1868)

28

As Kreimer explains: “The fourteenth amendment was intended to provide explicit constitutional warrant for a right to travel that extended to both blacks and whites, overturning the regime under which southern states excluded free blacks and abolitionists. The issue of state citizenship as a predicate for the article IV privileges was laid to rest with the fourteenth amendment’s grant of residency-based state citizenship. After that grant, the right to travel between states could not be denied to blacks on the ground that they were not ‘citizens’” (1992: 503-5).

29 30

U.S. Const. amend. XIV (§1, cl. 2). That there is also a residency dimension to the right to travel became clear in the subsequent Slaughter-House Cases (1872), when, writing for the majority, Justice Miller explains that one aspect of the clause was that “a citizen of the United States can, of his own voli-

Defining Freedom of Movement within Democratic Societies

The right to travel has at this point been asserted—and further strengthened by Williams v. Fears (1900)31—but not clearly defijined. Indeed, neither Crandall nor Fears produced agreement over why there was a right to travel. The most cited source was the Privileges and Immunities Clause (Art. IV), which protects federal rights from state infringement, but a minority of justices placed it within the Commerce Clause (Art. I), which enables federal oversight over inter-state commerce. This ambiguity was extended in the next landmark case, Edwards v. California (1941),32 which struck down a California statute attempting to prosecute anyone who knowingly brought poor non-residents across state lines. As Justice Jackson explained, to deny freedom of movement to the poor would introduce a caste system utterly incompatible with the spirit of our system of government. It would permit those who were stigmatized by a State as indigents, paupers, or vagabonds to be relegated to an inferior class of citizenship. It would prevent a citizen, because he was poor, from seeking new horizons in other states. It might thus withhold from large segments of our people that mobility which is basic to any guarantee of freedom of opportunity. The result would be a substantial dilution of the right of national citizenship, a serious impairment of the principles of equality…[it] is a privilege of citizenship of the United States protected from State abridgement, to enter any State of the Union either for temporary sojourn or for the establishment of permanent residence therein and for gaining resultant citizenship thereof. If national citizenship means less than this it means nothing.33

Edwards was groundbreaking, but did not resolve Court disagreement over the source of the right to travel. The majority view in this case was that it was the Commerce Clause, which protects against the attempt by any “single State to isolate itself from difffijiculties common to all of them...by the simple expedient of shutting its gates to the outside world”.34 Other justices, returned to the Privileges and tion, become a citizen of any State of the Union by a bona fide residence therein, with the same rights as other citizens of that State” (Slaughterhouse Cases, 83 U.S. 36 (1872), at 40). 31

William v. Fears, 179 U.S. 270 (1900). In Fears, a dispute over the right to tax the recruitment of out-of-state labor, Chief Justice Fuller unequivocally affirmed the right to travel: “undoubtedly the right of locomotion, the right to remove from one place to another according to inclination, is an attribute of personal liberty, and the right, ordinarily, of free transit from or through the territory of any State is a right secured by the Fourteenth Amendment and by other provisions of the Constitution” (274).

32

Edwards v. California 314 U.S. 160 (1941).

33

Ibid, at 181-3.

34

Ibid, at 160.

37

38

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Immunities Clause, claiming that mobility was fundamental to any conception of freedom of opportunity, and that the “right of persons to move freely from State to State occupies a more protected position in our constitutional system than does the movement of cattle, fruit, steel and coal across state lines”.35 Moreover, the ruling in Edwards was limited to inter-state cases with economic consequences, doing little to support rights claims. Nonetheless, Edwards held as the authoritative word on travel through the 1960s with a string of cases generally upholding its verdict (Kent v. Dulles (1958), New York v. O’Neill (1959), Aptheker v. Secretary of State (1964), Zemel v. Rusk (1965), and US v. Guest (1965)),36 and even expanding Court protection to include the Due Process Clause, which protects rights from state infringement. In being considered under Due Process, the right to travel became a fundamental right, which places the onus on state legislature to prove a compelling government interest to impinge upon such a right beyond strict scrutiny, the most stringent standard of judicial review available to the Court. This began with Kent, in which the Court decided that “the right to travel is a part of the ‘liberty’ of which the citizen cannot be deprived without due process of law under the Fifth Amendment,”37 and continued in Guest, which held that the right to travel was so elementary that it “was conceived from the beginning to be a necessary concomitant of the stronger Union the Constitution created” and was “secured against interference from any source whatever, whether governmental or private”.38 Substantive due process allows that there are certain unenumerated liberties in the constitution that cannot be abridged by law.39 These liberties are often not enumerated, but are considered fundamental rights that are “implicit in the concept of ordered liberty”. But what precisely these unenumerated rights are, and the Court’s ability to enforce these rights, remain unclear. Critics of due process argue that there should not be any such abstract liberty that cannot be subject to the interests of a democratically elected legislature. This last point is critical, as tensions

35

Ibid, at 177.

36

Kent v. Dulles, 357 U.S. 116 (1958); New York v. O’Neill, 359 U.S. 1 (1959); Zemel v. Rusk, 381 U.S. 1 (1965); United States v. Guest, 383 U.S. 745 (1965).

37

Kent (1958), at 125.

38

Guest (1965), at 757-8.

39

There are two forms of due process—substantive and procedural. Substantive due process is the means by which the courts limit legislative and executive powers, by protecting individuals from the over-reach of (usually majoritarian) policies. By contrast, procedural due process aims to ensure the fair execution of the legal process. This paper refers only to substantive due process, which is a continuing source of contestation within the court.

Defining Freedom of Movement within Democratic Societies

regarding this reasoning will recur, especially as the right to travel confronts increasingly nuanced obstacles in the years to come. From Shapiro to the Present In its early decisions, the Court expressed clear support for the right to travel. However, this did not prevent states from devising subtle means to subvert that protection—most notably through waiting periods for state benefijits and residency requirements. This battle between citizen and state was brought to the attention of the court in the fijinal landmark case, Shapiro v. Thomson (1969), 40 which took on the subject of waiting periods for welfare benefijits, or what came to be called discrimination against the “new” poor—in this case, Connecticut’s one-year residency requirement for welfare recipients. The Court confijirmed the constitutional right to travel, with Justice Brennan stating that “the nature of our Federal Union and our constitutional concepts of personal liberty unite to require that all citizens be free to travel throughout the length and breadth of our land uninhibited by statutes, rules, or regulations which unreasonably burden or restrict this movement”. 41 Shapiro set an important precedent, protecting the right to travel against state laws that attempted to indirectly inhibit migration (i.e. legal obstacles, not physical ones)—the strongest ruling to date. Moreover, to defend the right to travel, the Court applied the Equal Protection Clause—yet another justifijication—also in the Fourteenth Amendment, providing that all citizens receive equal protection of the law, which also mandates strict scrutiny analysis. In applying Equal Protection analysis, the Shapiro Court made a signifijicant departure from previous sources of the right to travel. The Commerce Clause is a dubious source of the right to travel, as it actually permits Congress to restrict travel. The Privileges and Immunities Clause is also limited as it can only protect inter-state travel (i.e. as the glue tying together the Union), and afffords no protection to citizens against state laws. Thus, it could never be used to strike down residency requirements or waiting periods, such as those found in Shapiro. This precedent produced a wave of cases that constrained states in similar ways. For example, in Dunn v. Blumstein (1972), 42 the court struck down a Tennessee law that included a one-year residency requirement for voting in state elections. The Court also recognized the right to inter-state travel in Memorial Hospital v Maricopa County (1974), 43 when the court decided against an Arizona statute that required a 40

Shapiro v. Thompson 394 U.S. 618 (1969).

41

Ibid, at 629.

42

Dunn v. Blumstein 405 U.S. 330 (1972).

43

Memorial Hospital v. Maricopa County, 415 U.S. 250 (1974).

39

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Chapter 2 – Matthew Longo

citizen to reside one year in a county before receiving non-emergency hospitalization or medical care at the county’s expense. This case too brought forth the concept of ‘newness’—i.e. that it is unconstitutional to discriminate against migrants, or ‘new’ inhabitants of a state. The Court decision also protected intra-state travel in addition to inter-state travel, ruling that they saw no reason “to draw a constitutional distinction between interstate and intrastate travel”. 44 This period, immediately post-Shapiro, represents the high-water mark regarding the right to travel—but did the Court go too far? Through the years, discomfort from the bench grew over whether this permission was excessive. As early as Guest, Justice Harlan questioned whether the Court was overstepping constitutional sources by protecting it against interference by private individuals. 45 In Shapiro, Chief Justice Warren questioned whether state residency requirements could be deemed unconstitutional as a result of burdening the right to travel alone. 46 Was the individual right to travel really virtually unconditional? And if the right to travel should be constrained, then by what? This crisis of faith reached a head in Zobel v. Williams (1982), 47 when the Court struck down an Alaska state income distribution plan because it was considered an infringement on freedom of movement. The Court generally agreed that the statute was to be rejected, but came to loggerheads about why. In dissent, Justice Rehnquist rejected that right to travel even applied, as there was no evidence anyone had in fact been prevented from entering the state. Justice Brennan went so far as to admit that “the frequent attempts to assign the right to travel some textual source in the Constitution…have proved both inconclusive and unnecessary”. 48 The ambiguity of US legal protection of the right to travel continued under the Rehnquist Court, but with a slightly diffferent practical consequence. Unlike the Warren (1953-69) and Burger (1969-86) Courts, which had a wide defijinition of the right to travel but with myriad rationales and often contradictory applications, the Rehnquist Court (1986-2005) chose to maintain an overarching defijinition of the right to travel, but nevertheless increasingly curtailed it in practice. Thus whereas ambiguity led to a broad scope under Warren and Burger, that same ambiguity led 44

Ibid, at 255-6. Furthermore, at around the same time, the Second Circuit Court of Appeals put the right to intra-state travel in much clearer terms: “it would be meaningless to describe the right to travel between states as a fundamental precept of personal liberty and not to acknowledge a correlative constitutional right to travel within a state” (King v. New Rochelle Municipal Housing Authority 404 U.S. 863 (1971): 648).

45

Guest (1965), at 767.

46

Shapiro (1969), at 643.

47

Zobel v. Williams, 457 U.S. 55 (1982).

48

Ibid, at 66.

Defining Freedom of Movement within Democratic Societies

to a narrowing scope under Rehnquist. 49 For example, in Nordlinger v. Hahn (1992),50 the Court upheld a California law that put up indirect burdens to travel based on tax-status, claiming that the state had a “legitimate interest in local neighborhood preservation, continuity, and stability”.51 In Bray v. Alexandria Women’s Health Clinic (1993),52 the Court held that anti-abortion rallies that barred access to abortion clinics did not impinge upon the right to travel, further scaling back its previous opposition to indirect obstacles to free movement, claiming that the “federal guarantee of interstate travel…protects interstate travelers against two sets of burdens: ‘the erection of actual barriers to interstate movement’ and ‘being treated diffferently’ from intrastate travelers”.53 More recently, the Roberts Court (2005 - present), declined to even hear Gilmore v. Gonzales (2006),54 regarding whether identifijication could be required for travel on domestic flights. These decisions represent a considerably narrow reading of the right to travel; moreover, many of the underlying ambiguities about the right to travel remain unresolved. For example, by what basis might the right to intra-state travel be established? Such discussions over intra-state travel raise the question of what exactly it is that we are protecting—in this case migration or mobility. The former pertains to resettlement; the latter can include less durative forms of travel, such as recreation or temporary sojourn. And what about the right to travel in public spaces? The courts have several times recognized that this right is derived from the right to free movement—Lutz v. City of York, recognizes the “right to travel locally through public spaces and roadways”.55 Nonetheless, there has never been the outright declaration of a right to travel on public fora, leading to disagreements over whether this right

49

Hartch explains: “the Rehnquist Court is in the midst of significantly scaling back the scope of the right to travel. The Court has succeeded in narrowing the right to travel largely by neglect and thus has failed to articulate a well-defined conception of the right” (1995: 458).

50

Nordlinger v. Hahn, 112 S. Ct. 2326 (1992).

51

Ibid, at 2332.

52

Bray v. Alexandria Women’s Health Clinic, 113A S. Ct. 753 (1993).

53

Ibid, at 762.

54

Gilmore v. Gonzales, 435 F.3d 1125 (9th Cir. 2006).

55

Lutz v. City of York, 899 F.2d 255 (3d Cir. 1990), at 268. Other cases of importance include: Papachristou v. City of Jacksonville (405 U.S. 156 (1971)), which claimed that walking and strolling were historically protected liberties, Kolender v. Lawson (461 U.S. 352 (1983)) struck down a loitering ordinance, citing the freedom of movement, and Chicago v. Morales (527 U.S. 41 (1999)), which declared that “we have expressly identified this ‘right to remove from one place to another according to inclination’ as ‘an attribute of personal liberty’ protected by the Constitution” (1857).

41

42

Chapter 2 – Matthew Longo

exists. For example, some Courts have debated a right to commute;56 others, a right to public housing (King); still others, a right to free public travel within a given jurisdiction (Lutz). These are critical issues, as, if the right to intra-state travel were to be recognized, then not just state-residency laws, but even municipal laws—such as those that require employees to live in the municipality in which they work—might also be struck down. In review, it is clear that rather than come out with a straightforward interpretation of the right to travel, the court instead produced a string of contradictory readings—such that the Framers’ initial ambivalence extends through until the present. Indeed, as recently as Saenz v. Roe (1999),57 the Court resorted back to the Articles of Confederation, because it could fijind no source in the Constitution: We need not identify the source of [the right to travel] in the text of the Constitution. The right of free ingress and regress to and from neighboring states which was expressly mentioned in the text of the Article of Confederation, may simply have been conceived from the beginning to be a necessary concomitant of the stronger Union the Constitution created.58

After over 200 years of decisions, it is clear that the Court generally supports the right to travel, but cannot agree on why, or under what conditions it can be curtailed. Wide or Narrow? Re-Thinking the Scope of the Right to Travel As this historical review makes manifest, there is great complexity inherent in the right to travel, which in the US remains ambiguously defijined—a fact that has brought the Court under fijire from critics claiming that there is a harm in underspecifying, and over-protecting this right. These concerns are valid, as at its most broad, the right to travel has been understood as a general “right of locomotion”59 or a sweeping “virtually unconditional personal right”.60 Do these protections go too far? What types of restrictions on the right of travel should be considered justifijiable? To this end I ask: how broad a defijinition of the right to travel should a state embrace and what is at stake in this decision? Mobility warrants protection, but unfettered travel would, if taken to its logical extreme, render myriad state laws unconstitutional— 56

Examples include: Wright v. City of Jackson 506 F.2d 900 (1975), Wardwell v. Board of Education 529 F.2d 625 (1976), and Andre v. Board of Trustees 561 F.2d 48 (1977).

57

Saenz v. Roe 526 U.S. 489 (1999).

58

Ibid, at 501.

59

Fears (1900), at 274.

60

Shapiro (1969), at 643.

Defining Freedom of Movement within Democratic Societies

everything from zoning laws to trafffijic lights. What protection can be provided without infringing on states’ rights to make laws of their own? This section builds upon the previous discussion of the right to travel in the US towards a broader discussion of the right to travel in liberal democracies—with special attention paid to the subject of democratic citizenship. There are two models of freedom of movement that we can draw from the discussion above, wide (W) and narrow (N). These can be formalized as follows: W:

The wide defijinition of the right to travel includes the protection of associated rights, such as residence, work, sojourn, etc—i.e. movement and migration—(W1) as well as protection from indirect impediments to movement (W2).

N:

The narrow defijinition of the right to travel is limited only to the protection of the right to move, but not stay—i.e. movement alone—(N1) and is limited only to examples of direct impediments to movement (N2).

The argument that I make in this section is that a wide defijinition of travel (W) is essential to the demands of democratic citizenship. This position afffijirms our priors: we take it for granted that mobility is a good, thus is it is no stretch to suggest that more individual freedom of movement is also a good. I will not belabor these points here, as the benefijits of freedom of movement have been introduced and defended throughout the previous discussion. Instead, in this section, I will address the potentially deleterious efffects of too wide a defijinition of the right to travel—i.e. answering the question: what is the harm of protecting it too much? In particular, I take on two objections to a wide defijinition of travel. The fijirst emanates from debates within legal scholarly communities over vagueness. Too wide a defijinition, critics contend, will lead to ‘legislating from the bench’ or the vulnerability of democratic legislation to judicial usurpation. I argue instead that this judicial flexibility is an asset, because freedom of movement is a bundled right, engendering and enabling other rights (ranging from speech and assembly to representation and residence); further, there are legal avenues by which associated harms can be mitigated, most notably by enumeration. The second objection derives from political theory debates over community, with proponents concerned that too wide a defijinition of travel restricts communities’ ability to cultivate a shared identity and support their own legislation. This debate hews closely to that between liberals and communitarians: namely that the harm of too wide a defijinition (W) are to shared identity (such as community); the harm of too narrow a defijinition (N) are to individual liberty. However, as I will show, a wide defijinition may also benefijit community, with local concerns greatly outweighed by the benefijits to the wider polity.

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Objection 1: Legal Vagueness Concerns over legal vagueness are common in rights debates, taking two extreme forms: totality (too broad) and indistinction (too undefijined). This vagueness can on the one hand lead to expansive interpretations that could interfere with the abilities of legislatures to make their own laws (for the honest betterment of their constituents); on the flipside, rights left unenumerated are easily corrupted. Rights that are totalizing, or inviolable, can be detrimental in that they act as trumps, which end important democratic negotiations, rather than contribute to them. This leads to a confrontational political sphere in which the courts increasingly have to adjudicate between opposing rights claims—increasing the role of the court in ways perhaps not ideal. Mary Ann Glendon makes this point clear: Our rights talk, in its absoluteness, promotes unrealistic expectations, heightens social conflict, and inhibits dialogue that might lead toward consensus, accommodation, or at least the discovery of common ground. In its silence concerning responsibilities, it seems to condone acceptance of the benefijits of living in a democratic social welfare state, without accepting the corresponding personal and civic obligations…. All of these traits promote mere assertion over reason-giving.61

Under this view, absolute rights are anti-majoritarian and a hindrance to rational, democratic discourse. In addition to concerns that ambiguous rights become totalizing, they can also blur into indistinction. For example, the Court states: “The word ‘right’ is one of the most deceptive of pitfalls; it is so easy to slip from a qualifijied meaning in the premise to an unqualifijied one in the conclusion. Most rights are qualifijied”.62 The same push-back occurs in discussions over human rights, as increasingly scholars fear that there are too many human rights, which devalues their individual meanings. This matter is frequently discussed regarding the “inflation” or escalation of human rights claims.63

61

M.A. Glendon, Rights Talk: The Impoverishment of Political Discourse (New York: The Free Press, 1991), at 41.

62

American Bank & Trust Co. v. Federal Reserve Bank of Atlanta 256 U.S. 350 (1921), at 358.

63

See for example M.W. Cranston, What Are Human Rights? (London: Bodley Head, 1973); B. Orend, Human Rights: Concept and Context (Peterborough: Broadview Press, 2002). Most recently Beitz links the over-reliance on the concept of human dignity as the source of the proliferation of human rights claims. C. Beitz, “Human Rights and Human Dignity,” (paper, Yale Political Theory Workshop, New Haven, CT, May 2, 2012).

Defining Freedom of Movement within Democratic Societies

In the US case, both the Warren and Burger Courts in expanding the right to travel (W), and the Rehnquist and Roberts Courts in retracting it (N), have done so without any clear defijinition of the right involved. This ambiguity leaves the scope and content of legislation at the whim of the adjudicators—precisely what the American constitutional system is designed to protect against. This fact has not gone unnoticed by legal scholars. Hartch argues that the right to travel’s increasingly amorphous nature—due to the Court’s excessive reliance on the Equal Protection Clause—renders the right to travel circumstantial. This enables the Court to strike down any state legislation it disapproves of—with or without clear constitutional sanction for these opinions.64 In his view, Shapiro shifted the debate away from travel towards the legislation that was deemed as a violation of the right to travel (i.e. the subject of review), while never having to actually defijine what this right was. Thus, rather than have travel be tightly defijined, it has become so vague as to justify the myriad whimsical vagaries of the Court. The same concerns are voiced regarding over-reliance on substantive due process—especially from the bench. For example, in Baldwin v. Missouri (1930) Oliver Wendell Holmes famously cautioned against Court over-reach;65 more recently, Justice Scalia has been outspoken about the illegitimacy of substantive due process, which he has called “judicial usurpation”.66 These concerns mirror Hartch’s—name-

64

Hartch explains this problem in Shapiro: “Rather than digressing into equal protection analysis…the Court in Shapiro should have focused on the primary question—whether a one-year residency requirement for welfare acts as a restraint on travel. The Court only addressed this question fleetingly, hypothesizing that “[a]n indigent who desires to migrate…will doubtless hesitate if he knows that he must risk making the move without the possibility of falling back on state welfare assistance during his first year of residence, when his need may be most acute” [Shapiro 1969: 638]. Yet even the Court realized that this was at best a makeweight argument by concluding that the statute merely touched on rather than infringed or penalized the right to travel…Shapiro is not an isolated example of the Court stretching to find an admittedly incidental and tangential restraint on travel to override the legislature” (1995: 474-5).

65

Baldwin v. Missouri, 281 U.S. 586 (1930). Holmes argues: “I have not yet adequately expressed the more than anxiety that I feel at the ever increasing scope given to the Fourteenth Amendment in cutting down what I believe to be the constitutional rights of the States. As the decisions now stand, I see hardly any limit but the sky to the invalidating of those rights if they happen to strike a majority of this Court as for any reason undesirable. I cannot believe that the Amendment was intended to give us carte blanche to embody our economic or moral beliefs in its prohibitions” (Baldwin (1930), at 595).

66

Morales (1999), at 41.

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ly that ambiguous rights enable judicial over-step, which at the same time cheapens rights and over-states them—two things that the US system is designed to reject. Legal vagueness is a legitimate concern—and lies at the core of most normative debates over rights. However, there is reason to believe that in the case of the right to travel the harms pale in comparison to the importance of judicial flexibility. This is true in the abstract, as attempts to create air-tight legal defijinitions that defend against judicial interpretation are a fool’s errand. As Dworkin explains, our most essential rights remain broad and abstract.67 However, judicial flexibility is especially important with regards to travel, because the danger of under-protecting the right to travel (N) include the abridgment not only of movement, but all associated rights. This is because ‘travel’ is less a ‘right’ than a mixture of diffferent types of rights claims, ranging from the simple freedom to be left alone on city streets, to the right to assert residency in disparate states and qualify for benefijits therein (N1). Further, it is an enabler for other rights, such as the free practice of religion or assembly. In the US context, Justice Douglas essentially makes this point: Freedom of movement is the very essence of our free society, setting us apart. Like the right of assembly and the right of association, it often makes all other rights meaningful—knowing, studying, arguing, exploring, conversing, observing and even thinking. Once the right to travel is curtailed, all other rights sufffer.68

Thus within this single right are a bundle of rights, which may or may not warrant protection at the same level and degree. To account for this bundle of values, room should be left for interpretation—precisely because the right to travel packages together so many diffferent types of right with varying degrees of signifijicance. Pursuant to this point, it is helpful to clarify what this bundle of rights entails. At its most basic, there are rights enabled by movement (N1), and those enabled by migration (W1). Rights associated with movement alone (N1) are almost limitless, as without the basic liberties of motion, nearly all other rights claims would be void— 67

Here is a recent formulation of this position: “the popular assumption that justices can decide constitutional cases by just consulting the text of that document and the intentions of its eighteenth- and nineteenth-century authors, without relying on their own sense of justice is simplistic and wrong. Many of the most important constitutional clauses—the First Amendment’s promise of ‘the freedom of speech’ for instance, its guarantee of ‘free exercise’ of religion, and its prohibition of any religious ‘establishment’—are drafted in abstract language; justices must interpret these clauses by trying to find principles of political morality that explain and justify the text and the past history of its application” (R. Dworkin, “The Court’s Embarassingly Bad Decisions,” The New York Review of Books (May 26, 2011): 40).

68

Aptheker (1964), at 520.

Defining Freedom of Movement within Democratic Societies

see for example the right to assembly or the free practice of religion. Without the right to move between one location and another, it would be impossible to convene a citizens’ meeting (with other than the most immediate representation), or to demonstrate in support of political commitments—two of the basic forms of democratic organization. This is true both at the national-scale, between the capital and the provinces, as well as at the regional-scale, between or within the provinces themselves. Further, religious congregation would be delimited by geographic boundaries with no legal or moral basis warranting such restriction. In this case, freedom of movement is an enabler for the free exercise of other rights. In addition to those rights enabled by movement alone (N1), numerous others are enabled by migration (W1), such as residency and occupation. Indeed, as framed in the introduction to this chapter, it is commonly accepted that in liberal societies citizens are free not only to work, but choose their vocation. As with the free practice of religion, jurisdictional restrictions bear no moral weight in constraining this choice of employment; the same type of arguments can be made with regard to education. The point here is that migration enables an even broader set of rights claims related to quality of life, such as those articulated by Justice Douglas—studying, conversing and observing, free of arbitrary spatial or temporal constraints. Returning to Baubock’s formulation, cited above, this more expansive set of rights— the bundle enabled by (W)—which constitute the core of what we consider to be freedom within democratic societies. The idea of the bundling of rights is not new, nor unique to travel. For example, Henry Shue argues that there is an innate hierarchy of rights, with some rights—basic rights—such as those that protect security and subsistence, acting as predicates for other rights. He refers to the way in which some rights enable others as “linkage”.69 Another version of this argument is that certain rights “support” others, such that it is impossible to endorse one right, without at the same time endorsing another.70 Stanley Fish makes a similar point in referencing freedom of speech as “not an independent value but a political prize”.71 It is a right in relation to other rights. Indeed, we need look no farther than Mill’s defense of free speech in On Liberty to view it as a catalyst of human flourishing.72

69

H. Shue, Basic Rights: Subsistence, Affluence, and U.S. Foreign Policy (Princeton: Princeton University Press, 1996). See also: D.J. Elkins, Beyond Sovereignty: Territorial and Political Economy in the 21st Century (Toronto: University of Toronto Press, 1995).

70

J. Nickel, “Rethinking Indivisibility: Towards a Theory of Supporting Relations between Hu-

71

S. Fish, There’s No Such Thing as Free Speech (Oxford: Oxford University Press, 1994), at 102.

72

J.S. Mill, On Liberty (Indianapolis: Hackett Publishing Press, 1978).

man Rights,” Human Rights Quarterly 30 (2008): 984-1001.

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This discussion of ‘bundling’ gets at the core of what it is about travel we are trying to protect. Due to its bundled nature, effforts to confijine the scope of the right to travel will necessarily constrain these other goods. If the concern was the protection of travel alone, then (N) would likely be sufffijicient; however, as travel is an enabling right for numerous others, (W) is required. Although it is outside the purview of this chapter, there are of course numerous means to further protect rights from vagueness, such as with enumeration. Certainly, in the US case, much trouble could have been avoided had freedom of movement been enumerated in the constitution. As Dworkin argues, it is critical that rights fijind their place in the constitution in order to ensure that they outweigh other legal considerations.73 Enumeration does not entirely solve the question of vagueness, as enumerated rights do not themselves have strict parameters—see for example, freedom of speech or religion—but their defijinition can be better circumscribed by law.74 Institutionally, this is the path paved by the UDHR in international law, and the EC Treaty—two templates that preserve some of the normative gain of ‘width,’ while mitigating some of the potential harm. Objection 2: Political Community A wide defijinition of the right to travel also has political ramifijications, especially over the nature of community. For example, some critics fear that unfettered travel restricts the abilities of districts to preserve their character and integrity—a concern that came to the fore in Nordlinger. This type of argument mirrors debates in political theory over republican theories of citizenship, which privilege civic participation in the locally circumscribed polity, or communitarian arguments about the bounded political community. For example, Walzer famously defends community boundaries and the preservation of political community as “the closest we can come to a world of common meanings. Language, history, and culture come together…to produce a collective consciousness”.75 It is only through discrete local communities that we can have real political participation, something which is harmed by too much movement.76 73

R. Dworkin, Taking Rights Seriously (Cambridge, MA: Harvard University Press, 1977).

74

Remarking explicitly on the right to travel in the US, Porter concurs that “rights that have no constitutional base are ripe for charges of legislating from the bench” (1992: 848). Indeed, the Court itself has famously stated that “liberty finds no refuge in a jurisprudence of doubt” (Planned Parenthood v. Casey, 112 S. Ct. 2791 (1992): 2803).

75

M. Walzer, Spheres of Justice: A Defense of Pluralism and Equality (New York: Basic Books, 1983), at 28.

76

See e.g. W. Kymlicka, “Territorial Boundaries: A Liberal-Egalitarian Perspective,” in Boundaries and Justice. Diverse Ethical Perspectives, eds. D. Miller and S.H. Hashmi (Princeton: Princeton University Press, 2001).

Defining Freedom of Movement within Democratic Societies

The objection that unbridled mobility will dilute the character and integrity of local communities takes numerous forms. For example, one concern is that a toowide defijinition of the right to travel impedes the state’s ability to pass legitimate legislation. In the US, this argument has been leveraged in cases that protect residency requirements for candidates seeking public offfijice—i.e. cases in which longterm residents should be diffferentiated from new arrivals—and in the defense of zoning laws, a central weapon in states’ arsenals to protect the health and safety of their residents. In cases like these, there is a discrete harm in having good policies— borne of the democratic legislative process—stricken due to some intangible fear of a possible efffect on mobility. Further to this point, a too-wide defijinition of the right to travel actually prevents the Court from being able to distinguish between the types of travel the state wants to protect, versus the kind it wants to defend against. Benjamin Sasse makes this point with regard to Lutz, which makes it incumbent upon the government to prove compelling state interest in any statute that attempts to stop or control the movement of people within city streets. This is benefijicial in that it protects mobility, but it could also hamper the ability of the state to protect against, for example, gangs or drug cartels.77 In his view, what Lutz lacks is a value standard that helps determine what it is about travel that we are seeking to protect: Missing from the Lutz test is a mechanism for distinguishing burdens on the right to travel on public fora that are incidental (such as trafffijic lights) from those that are direct (such as a curfew law). The Lutz test treats both categories of burdens identically. As a consequence, the Lutz test is both overprotective and underprotective. The test is overprotective because it would require that trafffijic signals, stop signs, and right-ofway designations survive an intermediate standard of review. These regulations are meant to facilitate the right to travel, not burden it.78

77

The potential harm is detailed here: “The right to travel can interfere with well-intentioned uses of the police power. Consider State of New Jersey v. Barcia. Two defendants charged with drug possession had the evidence suppressed after the court ruled that the roadblock utilized by police was an unconstitutional violation of the defendants’ freedom to travel” (Porter 1992: 856-7).

78

B.C. Sasse, “Current Laws, Freedom of Movement, and the Rights of Juveniles,” Case Western Reserve Law Review 50 (2000): 681-728, at 708. His solution is to employ the standard of ‘undue burden’ (Planned Parenthood (1992)), which is a threshold inquiry, such that strict scrutiny is only applied once an undue burden is found; if no undue burden is found, then the ordinance only has to pass the more lax rational basis test. This solves the overinclusion/ underinclusion problem. However, this solution still places tremendous weight on judges

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A second concern is that unbridled travel will actually provide disincentives for states to pass benefijicial legislation in fear that the system might be abused—i.e. the ‘tragedy of the commons.’ This concern applies to cases where a local jurisdiction is responsible for funding a program and wishes to restrict its recipients to its local constituency. To use the example of the provision of health services, too much mobility creates a ‘race to the bottom’, as states have a disincentive to provide good health care for fear of being over-burdened by the emigration of citizens of other states where health care is less optimal. By contrast, states with inferior health systems will comparatively prosper, as their most needy members are liable to flee towards states with better systems. In this case, rather than create a better union, abundant mobility creates perverse negative incentives towards the system’s deterioration.79 This circumstance also has the moral harm of requiring municipal residents pay for services that they would not choose to be distributed out of community, and which draw funding and attention away from benefijits to the community itself. Communitarian concerns are classic foils to the liberal value of individual liberty—which freedom of movement (W) obviously satisfijies. But how do we adjudicate between these claims? A helpful way to frame this debate is to address the subject of community directly—in this case by asking in what way travel (W) might actual contribute to the community. I do so with a discussion of the larger political community—namely, via a discussion of democratic citizenship.80 Where possible, I address local-level community concerns as well. The fijirst purchase of a wide defijinition of travel to democratic citizenship is that it helps negotiate diversity and impediments to multi-cultural harmony. The debate over multicultural citizenship draws in part on Iris Marion Young’s argument that universalistic perspectives on citizenship, while seeming to promote social equality irrespective of diffference, in fact mask the oppression of majoritarian culture, sensibilities and institutions upon the minority.81 In other words: diffference-blind citito adjudicate, without providing essential guidelines to their doing so—returning us to the criticisms leveled above. 79

Taking this argument a step further, concerns over free-riding also extend to the incentives facing emigrants themselves. For example, new arrivals may view their sojourn as temporary, and thus be disinclined to invest in their new communities; elder retirees, might be less inclined to fund educational programs in their new state, as they do not expect to profit from such investiture.

80

For the purposes of this section I take the most simple definition of citizen—namely a

81

I.M. Young, “Polity and Group Difference: A Critique of the Ideal of Universal Citizenship,”

member of a political community, who assumes both rights and duties of this membership. Ethics 99:2 (1989): 250-274. See also: I.M. Young, Inclusion and Democracy (Oxford: Oxford University Press, 2000).

Defining Freedom of Movement within Democratic Societies

zenship actually perpetuates the very inequality it purports to vanquish. This debate—i.e. how liberal states should deal with diffference—has produced numerous theories. Some scholars call for education dedicated towards the integration of minorities.82 Carens suggests that inter-group dialogue is necessary for the recognition of diffference to be coupled with integrative group demands—such that the bonds of political and social cohesion be strengthened, rather than diminished. 83 Kymlicka and Norman distinguish between special representation and multicultural rights versus self-government rights.84 The former encourage integration into the polity; the latter, aimed at self-determination, threaten to terminate civic engagement. One reason we need a wide defijinition of the right to travel (W) is that part of the problem of diffference is the concern that if left to their own devices states (localities, municipalities, etc) will do their best to preserve their own, homogeneous culture, and thus it is up to national legislation to ensure the protection of minority rights. After all, as the US case shows, it is precisely diffference (today, it is increasingly Hispanics, rather than blacks) that states have sought to exclude by keeping communities pure—now, since they cannot bar entry, instead they attempt to bar residency (N1).85 Further to this point, it is precisely the indirect obstacles to travel that are most nefarious—as they are least palpable, and directly target the poor (as in residency requirements for welfare benefijits)—which is precisely what a wide defijinition protects against (W2). The wider the defijinition of travel, the more likely freedom of movement enables inter-mixing, and the breaking down of homogenous areas and replacing them with heterogeneous ones. In this way, the very purchase of communitarian critiques of travel (N) is also the basis for a defense of integration. This is because while community might be a political asset worth preserving, it loses some of its moral weight when it comes at the expense of diversity. Certainly, one might contend, as Walzer does,86 that as mobility in a given society increases individual identities lose their distinctness— 82

E. Callan, Creating Citizens (Oxford: Oxford University Press, 1997); A. Gutmann, Democratic Education (Princeton: Princeton University Press, 1997); H. Brighouse, School Choice and Social Justice (Oxford: Oxford University Press, 2000).

83

J.H. Carens, Culture, Citizenship and Community: A Contextual Exploration of Justice as Even-

84

W. Kymlicka and W. Norman, “Return of the Citizen: A Survey of Recent Work on Citizenship

handedness (Oxford: Oxford University Press, 2000), at 197. Theory,” Ethics 104:2 (1994): 352–381. See also W. Kymlicka, Multicultural Citizenship: A Liberal Theory of Minority Rights (Oxford: Oxford University Press, 1995). 85

For an example of this in Europe, see M.E.A. Haffner and J.S.C.M. Hoekstra, “Housing Allocation and Freedom of Movement: A European Comparison,” Tijdschrift voor Economische en Sociale Geografie 97:4 (2006): 443–451.

86

Walzer, 1983.

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and thus that increased mobility is actually antithetical to diversity. However, in the case of freedom of movement this is somewhat of a straw man, as there is little evidence to suggest that mobility in and of itself detracts from community culture (as opposed to integration-driven education or language policies, for example).87 In any event, this position is hardly to be defended over the considerable moral harm of perpetuating status inequality—i.e. diffferential statuses of individuals living within a single state88—a natural consequence of social structures in which certain classes of citizens summarily face barriers to entry into communities. This is the precise population for whom a narrow protection of the right to travel (without corollary protections of residency (N1), or defense against indirect obstructions (N2)) is insufffijicient. Further, while political community may be worth preserving, parochialism is not. The type of community protections detailed above—as exemplifijied by Nordlinger—are also those that may enable regional diffferentiation at the expense of national integration. Indeed, a further aspect of the debate over multicultural citizenship is the tension between citizenship (state-afffijiliation) and nationalism (nation-afffijiliation). Above, this was treated as a question of inter-mixing (i.e. ‘there are strangers in our midst’) and is usually considered regarding questions of immigrants, or ‘new’ citizens (frequently second-generation immigrants). However, a second aspect of this concern—more common in Europe than in the United States— are concerns over regionalism, or instances when separate national allegiances

87

Further, we too frequently defer to a simplistic definition of identity in discussions of political community. In fact, identification within a polity can include a number of different facets, including individual and group loyalties and feelings of social integration and belonging (Carens 2000: 166). These attributes are self-constitutive: having rights increases ones opportunities for political participation, as well as one’s sense of belonging (see e.g. J. Rawls, A Theory of Justice (Oxford: Oxford University Press; 1972): 544).

88

On this point, Carens claims that the risks inherent in differentiated citizenship is that its emphasis on “the recognition and institutionalization of difference could undermine the conditions that make sense of common identification and thus mutuality possible” (Carens 2000: 193). Going a step further, although this point is slightly outside the purview of this chapter, which focuses exclusively on mobility within states and among citizens, if we take the moral equality of individuals to its logical extent, then distinctions such as citizen and non-citizen are morally arbitrary (Carens 1987). However, for the purposes of this chapter, I keep intact the clean distinction between citizens and non-citizens. If we follow Carens, however, then the importance for the protection of a wide definition of travel only becomes stronger.

Defining Freedom of Movement within Democratic Societies

share the same state (but often diffferent soil).89 In this case, all parties involved are mutually citizens; the fear here is that groupings stay separate, with no shared culture except minimal allegiance to the same flag. But in a liberal democracy, citizenship should be divorced from nationality—and especially under conditions of multicultural pluralism. Here too there is a critical purchase of a wide defijinition of the right to travel because it is precisely a wide range of travel that enables cross-regional inter-mixing. A major proponent of the creation of a de-regionalized, de-nationalized political culture is Jurgen Habermas, for whom a healthy pluralism must be rooted in universalistic principles, rather than particular ones. This means the rule of law, which is an expression of a political culture independent of the national one—or what he calls “constitutional patriotism”.90 For this to happen, the dominant majoritarian national consciousness “must be dissolved if it is to be possible for diffferent cultural, ethnic, and religious forms of life to coexist and interact on equal terms within the same political community. The level of the shared political culture must be uncoupled from the level of subcultures and their prepolitical identities”.91 In this way, identity is formed by participation in the democratic process alone.92 This is not to say that discrete sub-national regions or afffijiliations are not important. Kymlicka defends the merits of an intimate, bounded political community.93 David Miller argues that within the democratic frame, national allegiances can bring people together into civic union and political engagement.94 Further, critics of Habermas might question the practicality of his claims, as severing the nation from political culture may only be possible on paper. A compromise space appears to be a very weak notion of nationalism, such as common language and loyalty to shared institutions.95 This amounts to a political culture akin to that suggested by Habermas—although achieved in reverse. In either case, the key is to preserve com89

Classic examples include Basque affiliations in Spain, or the various national moorings of the Swiss.

90

J. Habermas, The Inclusion of the Other: Studies in Political Theory, eds. C. Cronin and P.D. Greif, (Cambridge: MIT Press, 1998), at 118. While national sentiments can play an essential role in creating a unified polity, this is not necessary once a polity is established—and is something that should be transcended for normative reasons, because the nation has empirically been rooted in violence and exclusion.

91

Ibid, at 118.

92

J. Habermas, The Postnational Constellation: Political Essays, ed. M. Pensky (Cambridge: MIT Press, 2001).

93

Kymlicka, 2001: 259

94

D. Miller, Citizenship and National Identity (Cambridge: Polity Press, 2000).

95

D. Miller, On Nationality (New York: Clarendon Press, 1995).

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munity traditions without foreclosing the possibilities of polity-level co-allegiance. It is for this type of reason that cross-regional inter-mixing, and the formation of an integrated political culture is important—something that a wide defijinition of travel explicitly protects. Regional pockets of identifijication are known precisely for high barriers to entry into their communities—such as the kinds enabled by indirect barriers to travel (N2). This does not mean that discrete regional communities should not be preserved (such as through bi-lingual schooling and cultural preservation); however, for such communities to participate in the wider state, their walls must be porous too. A fijinal reason for why democratic citizenship demands a wide defijinition of travel—although less beholden to liberal/communitarian debates—pertains to concerns over inequality (regional and sub-national). States consist of myriad sectors—industrial, agricultural, urban, etc—that correspond to vast diffferences in economic development. As such, poor areas frequently become traps for citizens incapable of leaving. Indeed, the alleviation of regional poverty traps was one of the central reasons that the US courts originally took as wide a defijinition of travel as they did (see e.g. Crandall and Edwards). One solution to the problem of regional economic inequality is through re-distribution, such that richer sub-national regions circulate funding to poorer ones. However, this alone is insufffijicient. Indeed, on the global scale, scholars increasingly understand that redistributive schemes do not do enough, without concomitant programs dedicated to immigration;96 in domestic terms, this obligation towards alleviating regional inequality is even stronger. Facilitating inter-regional mobility and re-location (W1) is one means of doing so.97 To conclude, from an individual liberty perspective, it is clearly better to support (W); but perhaps communitarian concerns can be assuaged as well, due to the 96

As Veit Bader argues, the global north has “a double moral obligation to seriously fight global poverty and to let more people in” (V. Bader, “Fairly Open Borders,” in Citizenship and Exclusion, ed. V. Bader. (New York: St. Martin’s Press, 1997), at 31). See also B. Barry, Culture and Equality: An Egalitarian Critique of Multiculturalism (Cambridge: Harvard University Press, 2001).

97

A negative externality of this form of mobility is ‘brain drain’, but the ramification of this type of mobility—mostly of scholars and scientists from poor areas to rich ones—are greatly lessened within countries than between them. Indeed, arguably the positive effects of a scientific development in one part of the country are likely to be experienced statewide, regardless of where the research is itself conducted. Thus, this is not commensurate to the global problem of brain drain, where the flight of intellectuals frequently restricts the benefit of their scholarship to their home countries due to international legal barriers such as patent law. Further, in volume, these cases are minimal as compared to the numbers of workers in poor states seeking gainful employment across state lines.

Defining Freedom of Movement within Democratic Societies

importance of a wide defijinition of the right to travel to the broader political union. Further, there are myriad ways for communities to preserve their identities and integrity without directly or indirectly barring the ingress of others—a fact frequently glossed over in hegemonic rights discourse. Likewise, there are institutional means to prevent localities from declining services to their citizens, especially at the national, or federal level—contra concerns over the tragedy of the commons—without turning jurisdictional boundaries into walls. However, from the vantage of democratic citizenship the narrow defijinition of travel (N) has a weaker moral case, with the severing of travel from residence more akin to how we see international travel (which protects movement, but not residence)—an undesirable outcome that creates diffferential rights classes, which we (might) consider acceptable for foreigners, but not citizens. Conclusion Defijinitions are essential, yet frequently remain obscure. The disconnect between rights in their normative and legal forms is perhaps clearest with regards to human rights. As John Rawls notably formulated in his Law of Peoples, for human rights to be legitimate they must be defensible in international legal practice, not merely as abstract concepts.98 This point has been echoed in diffferent forms by contemporary scholars, such as Charles Beitz, who seeks a selection mechanism to legitimize human rights,99 and Allen Buchanan, who bemoans the “justifijication defijicit” in human rights discourse, as while the rights themselves have proliferated, the source of their justifijication is lacking.100 Seyla Benhabib explains that human rights “articulate general principles which need contextualization and specifijication in the form of legal norms…[they] require embodiment and instantiation in a specifijic legal framework”.101 Returning to the right to travel: that such a right exists is taken for granted in liberal societies, however the scope of this right remains largely unexamined. To what extent must states tolerate freedom of movement, and why? Further, what are the philosophical merits of these various views on the right to travel? This chapter approached these questions with an in-depth look at debates over the right to travel 98

J. Rawls, The Law of Peoples (Cambridge: Harvard University Press, 1999).

99

Beitz, 2012. See also M. Walzer, Thick and Thin: Moral Argument at Home and Abroad (Notre Dame: University of Notre Dame Press, 1994).

100

A. Buchanan, “The Egalitarianism of Human Rights,” Ethics 120 (2010): 669-710.

101

To this end, drawing from discussions in Rawls and Dworkin, Benhabib distinguishes between a concept and a conception. S. Benhabib, Dignity in Adversity: Human Rights in Troubled Times (Cambridge, UK: Polity Press, 2011), at 126-7.

55

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in the United States—uncovering both the complexities of the subject, as well as diffferent perspectives on scope. We are forced to choose: do we want an all inclusive right that blocks offf legislation that could possibly influence the right to travel, or do we want a more narrow sense of the right in which only clear, direct obstacles to travel are restricted? The former might force the court to strike down legitimate legislations reached through the democratic process. The latter might enable state legislatures to bias against new migrants, and create diffferential citizenship that compromises the realization of an open federal union. I argue in favor of a ‘wide’ defijinition of the right to travel—namely, one that includes associated rights, such as residency, and protects against indirect impediments, not merely direct ones. This defijinition gets at the core of what it is about travel we are trying to protect, which is not merely movement, but a bundle of rights, for which mobility is an enabler. I further conclude that a wide defijinition better satisfijies the demands of democratic citizenship. This argument draws its inspiration from the US case, as support for the right to travel nearly always derives from the Fourteenth Amendment, or the concept of federal citizenship—i.e. that which glues together the myriad states into a single union, helping to facilitate economic integration and prevent the “balkanization of the nation”.102 This strength does not come from the narrow sense of the right to travel, but rather a broader conceptual frame that envisions cross-state travel and residence.

102

O’Neill (1959), at 7.

3.

Free Movement for Workers or Citizens? Reverse Discrimination in European Family Reunification Policies 1 Anne Staver

1

Introduction

Migration and mobility is often discussed in individual terms, focusing either on the worker or the refugee. In recent years migration scholars have also increasingly paid attention to the networks in which these individual migrants fijind themselves—especially their families.2 The right to family life is widely accepted, but family reunifijication—in efffect the free movement of family members across borders—is contested and torn between the individual’s desire to live with family members and the state’s prerogative to control borders. The European project of equal citizenship and free movement, in which such border controls have been abolished, forms the backdrop of this book. But examining family reunifijication regulations3 within the wider European Union4 shows that there is anything but equal access to reunifijication, and 1

I would like to thank the participants at the workshop on Free Movement and Discrimination, organized by the European Union Centre of Excellence at Glendon College, York University, on 28 November 2011, for their helpful comments on this chapter.

2

see for example Eleonore Kofman, “Family-related Migration: a Critical Review of European Studies,” Journal of Ethnic and Migration Studies 30 (2004): 243–262; Albert Kraler et al., eds., Gender, generations and the family in international migration (Amsterdam: Amsterdam University Press, 2011).

3

In this chapter I speak of family-related migration generally, i.e. migrants who obtain the right to enter the EU as someone’s family member. Unless otherwise specified, I do not distinguish between so-called ’family formation migration’ (bringing in a new spouse) and ‘family reunification’ strictly speaking (where family life pre-dates migration of one of the family members, and they later join him or her).

4

I use the term ‘the EU’ in this chapter to refer to the European Union proper (EU), but also to Iceland, Liechtenstein and Norway (members of the European Economic Area/EEA) and

Willem Maas (ed.), Democratic Citizenship and the Free Movement of People Copyright 2013 Koninklijke Brill NV. ISBN 978-90-04-24327-9 pp. 57-89

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that the movement of family members is not necessarily free. Quite the contrary, this chapter will document the increasing fragmentation and diffferentiation of family reunifijication rights, and the paradoxical role of the free movement of persons in Europe in this process. Legal scholars have long been aware of the problem of ‘reverse discrimination’ in family reunifijication matters, where a mismatch between national and EU legislation and a division of competences leads to a situation where citizens are disadvantaged vis-à-vis Europeans who use their freedom of movement with regard to family reunifijication. In fact, Europeans who use their free movement have a right to family reunifijication under EU law when citizens, living in the same place, may not have such a right, depending on national legislation. Studies of this phenomenon usually point out that reverse discrimination is problematic and should be eliminated, but that EU law provides no direct means of doing so because it lies beyond its competence,5 and that there are limits to the possibilities of judicial intervention in order to resolve reverse discrimination.6 This chapter will approach this issue from a diffferent angle, using tools from political science to seek to understand why diffferential treatment with regard to family reunifijication appears to persist and deepen. The following section (2) will outline a typology of family reunifijication cases in the EU. There are currently four diffferent and overlapping legal regimes which regulate family reunifijication for diffferent groups of people within the same legal space of the European free market. Then the main section of the chapter (3) will propose an overarching explanation of the increasing fragmentation of rights to family reunifijication drawing on historical institutionalism and policy transfer theories. I suggest that European jurisprudence on free movement has developed in a path-dependent manner based on a logic of non-restriction, whereas at the national level some countries have pushed for changes in a restrictive direction. The free movement logic and the nationally directed trend towards more restrictions have intersected in the EU Family Reunifijication Directive; creating yet another constellation of rights and conditions. The fijinal section (4) discusses the paradoxical role of free of movement in accessing family reunifijication rights, and suggest that a new intersection of paths

Switzerland (which has a bilateral agreement with the EU on free movement). Citizens of all these countries have the right to move freely within Europe. I focus mainly on Northern and Western Europe. 5

Anne Walter, Reverse Discrimination and Family Reunification (Nijmegen: Wolf Legal Publishers, 2008).

6

Peter Van Elsuwege and Dimitry Kochenov, “On The Limits of Judicial Intervention:EU Citizenship and Family Reunification Rights,” European Journal of Migration and Law 13, no. 4 (2011): 443–466.

Reverse Discrimination in European Family Reunification Policies

may occur whereby Member States fijind new ways of restricting family reunifijication for free movers. This chapter is a broad overview of a complex policy area, and it cannot aim for both depth and breadth. Its ambition is to bring together strands of the literature on family migration and free movement jurisprudence which have usually been studied separately, in order to draw out new understandings of the dynamic relationship between free movement and family life in the EU. 2

A Typology of Family Reunification cases

This section proposes a typology of family reunifijication scenarios that can arise in the EU by asking each time the same three questions: which sponsors and which family members are eligible? What types of conditions can be imposed? And fijinally, can states deny family reunifijication, and if so, when? The fijinal part of this section compares the diffferent categories to highlight the diffferences along all these three dimensions. While most previous studies have identifijied three family reunifijication scenarios,7 this study adds a fourth scenario in light of recent case law8 at the Court of Justice of the European Union (CJEU), thus documenting further fragmentation of family reunifijication rights. 2.1

A ‘static’ citizen with family members from outside of the EU

2.1.1

Which sponsors and which family members are eligible?

This category refers to family reunifijication policy for so-called ‘static’ citizens, i.e. citizens of a European country who live in their own country of citizenship (for example a Dutch citizen living in the Netherlands) who seek to reunite with family members from outside of the EU, also known as ‘third country nationals’ (TCNs). Family reunifijication rules for ‘static’ citizens are not harmonized at the EU level, so this is the most difffijicult category to describe in brief. Some countries have aligned their national rules with EU free movement legislation (described below) in order to avoid a situation where citizens are treated worse than non-citizens (i.e. subjected

7

Yves Pascouau and Henri Labayle, Conditions for Family Reunification Under Strain: A Comparative Study in Nine EU Member States (Brussels: King Baudouin Foundation; European Policy Centre; Odysseus Network, November 2011).

8

Case C-34/09, Ruiz Zambrano v Office National De L’emploi, ECR I-0000 (2011); Case C-434/09, Shirley McCarthy v. Secretary of State for the Home Department, ECR I-0000 (2011); Case C-256/11, Dereci and Others v Bundesministerium Für Inneres, ECR I-0000 (2011).

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to reverse discrimination), but in at least nine EU Member States9 and in Norway citizens are subjected to national legislation stricter than EU rules. Sponsors may generally reunite with their married, heterosexual spouse and minor children. A relatively small number of European countries allow long-term and registered partners to reunite. Some countries restrict family reunifijication with teenage children, and only admit those under 15 years old.10 Some countries allow reunifijication with elderly relatives in the ascending line.11 2.1.2

Conditions?

As with eligibility rules, the range of conditions imposed on those seeking family reunifijication varies by country. While all EU countries currently have income requirements for TCN sponsors (see section 2.2 below), they do not always apply to citizens. In Denmark and Norway, income requirements have been extended to citizens in recent years using the argument that the same rules should apply to all.12 One might interject that it is odd to use a non-discrimination argument to impose further restrictions on ones’ own citizens when it simultaneously deepens diffferential treatment between citizens and TCNs on the one hand, and mobile Europeans on the other hand, as those rules would not apply to them. Western European states generally use many of the same conditions for citizens as they do for TCNs under the Directive (see below), although they may treat citizens somewhat more favorably. 2.1.3

Can it be denied?

Family life is constitutionally protected in some European countries, such as France and Germany, and a subjective right to family reunifijication (given that the conditions are fulfijilled) is inscribed in the immigration legislation of some countries, such as Norway. Where such domestic checks are weak, some limitations to states’ freedoms 9

Kees Groenendijk et al., Annual European Report on the Free Movement of Workers in Europe in 2010-2011 (European Commission, January 3012).

10

For example Denmark, see Karina Moeslund and Elisabeth Strasser, Family Migration Policies in Denmark, NODE Policy Report (Vienna: BMWF/ICMPD, 2008).

11

Denmark eliminated access to family reunification for elderly parents in 2002. Norway only allows it if there are no remaining relatives who can care for them in the home country.

12

In the Ministry’s proposal for a New Norwegian Immigration Act, it is noted that the “principle of support should apply equally regardless of the sponsor’s age, immigration status and citizenship”, Arbeids- og inkluderingsdepartementet, “Ot.prp. nr. 75 (2006-2007) Om lov om utlendingers adgang til riket og deres opphold her (utlendingsloven),” Odelstingsproposisjon, June 26, 2007, 65.

Reverse Discrimination in European Family Reunification Policies

are found in international human rights law. These are efffectively illustrated in the jurisprudence of the European Court of Human Rights (ECtHR) on Article 8 of the European Convention on Human Rights (ECHR) on the right to private and family life. The ‘default position’ of the Court is that there is no right to family reunifijication, and that States have a wide margin of maneuver in immigration control. 13 When the Court has decided in favor of individual families and upheld family reunifijication, it has mainly been in cases where the family could not live together in an alternate location—what observers call the Court’s ‘elsewhere approach’.14 The threshold is high.The Norwegian wife and child in of a failed Nigerian asylum seeker in Omoregie were expected to adapt to life in English-speaking Nigeria to exercise family life there rather than in Norway.15 Interestingly, some similar cases have been decided in favor of the applicant, but they have involved foreign mothers16 (Rodrigues da Silva17 and Nuñez18). 2.2

The Family Reunification Directive: TCN residents and their TCN family members

2.2.1

Which sponsors and which family members are eligible?

The second scenario involves TCNs who seek family reunifijication with their TCN family member(s). Such cases are regulated by the Directive on the Right to Family Reunifijication 19 in 24 EU Member States, but remain within national competence in Denmark, Ireland and the UK as well as the EEA countries and Switzerland.20 The Directive sets certain minimum standards, but has led to limited harmoniza-

13

Thomas Spijkerboer, “Structural Instability: Strasbourg Case Law on Children’s Family Reunion,” European Journal of Migration and Law 11, no. 3 (2009): 271–293.

14

Cynthia S. Anderfuhren-Wayne, “Family Unity in Immigration and Refugee Matters: United

15

European Court of Human Rights, Omoregie and Others V. Norway, 31 July 2008, 265/07.

States and European Approaches,” International Journal of Refugee Law 8, no. 3 (1996): 347. 16

For a discussion on this gendered pattern see Betty de Hart, “Love Thy Neighbour: Family Reunification and the Rights of Insiders,” European Journal of Migration and Law 11, no. 3 (2009): 235–252.

17

European Court of Human Rights, Rodrigues Da Silva Hoogkamer, 31 January 2006, 50435/99.

18

European Court of Human Rights, Nuñez v. Norway, 28 June 2011, 55597/09.

19

Council Directive 2003/86/EC on the Right to Family Reunification, 2003/86/EC, OJ L 251, 03.10.2003.

20

As well as in the non-EU member states Norway, Iceland, Switzerland and Liechtenstein.

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tion because of the many optional clauses and incorrect transposition.21 Under the Directive, TCNs legally resident 22 in the EU can get family reunifijication with their spouse and unmarried minor children, but a minimum age limit for spouses can be set at a maximum of 21. The Directive has optional clauses with regard to unmarried partners (art. 4(3)), relatives in the ascending line (art. 4 (2)(a)), and unmarried adult children who require their parents’ care (art. 4(2)(b)). The Directive allows countries that already had restrictions on family reunifijication for teenage children to retain them, in the form of integration conditions on children over the age of 12 who arrive independently (art. 4(1)(d)), and restrictions on reunifijication with children over the age of 15 (art. 4(6)). 2.2.2

Conditions?

The Directive allows a wide range of conditions in the family reunifijication process, although, again, many of them are optional. While the Netherlands have implemented practically all the permitted measures, Sweden has implemented very few. The most widely used condition is the income requirement (art. 7(1)(c)): The only two states who were found not to have an income requirement in a 2007 survey23— Sweden and Belgium—have since implemented one.24 States commonly also require suitable accommodation (art. 7(1)(a)), and may require families to hold sickness insurance (art. 7(1)(b)). Finally, the Directive allows for ‘integration measures’ (art. 7(2)), which the Netherlands has used to require that family members demonstrate some profijiciency in the local language before reunifijication. Several other countries later adopted similar measures (see below). Other countries require participation in integration and language courses upon arrival.25 21

Thomas Huddleston, Right to Family Reunion-the Dynamics Between EU Law and National Policy Change, MPG Family Reunion Briefing (Migration Policy Group, 2011).

22

The Directive does not apply to asylum seekers and persons benefiting from temporary or

23

Kees Groenendijk et al., The family reunification directive in EU member States : the first year of

subsidiary protection (art. 2). implementation (Nijmegen: Centre for Migration Law, 2007). 24

Ministry of Justice, “Immigration of Family Members”, January 17, 2011, http://www.regeringen.se/sb/d/14293/a/159040; Laurent Hanseeuw, Les Enjeux De La Nouvelle Loi Sur Le Regroupement Familial (Brussels: Itinera Institute, 2011). It should be noted that there are many exemptions from the Swedish income requirement, so that in its practical consequences it may not be comparable to the Dutch one, for example.

25

Saskia Bonjour, “Between Integration Provision and Selection Mechanism. Party Politics, Judicial Constraints, and the Making of French and Dutch Policies of Civic Integration Abroad,” European Journal of Migration and Law 12, no. 3 (2010): 299–318.

Reverse Discrimination in European Family Reunification Policies

2.2.3

Can it be denied?

In accordance with art. 6 of the Directive, family reunifijication can be denied on the grounds of ‘public policy, public security or public health’. Additional grounds for refusal of entry or renewal, such as if the marital relationship ends or if it is found to be a marriage of convenience, are outlined in art. 16. While early assessments of the Directive betrayed some dismay at the plethora of permitted restrictions,26 it must be emphasized that the Directive has resulted in an important liberal development as well. With communitarization came the competence of the CJEU, which has ruled in two important cases concerning the Directive; Parliament v. Council27 and Chakroun.28 In the former, the Court afffijirmed that the Directive contains a subjective right to family reunifijication, and that the conditions therein must be read narrowly. Neither of these things were arguably given in advance, despite the title of the Directive indicating a ‘right to family reunifijication’.29 In Chakroun it also found that countries could not set higher income requirements for family formation than for reunifijication, like the Netherlands had done, or use income requirements as an absolute cut-offf without further scrutiny of the family’s individual circumstances. The European Commission launched a Green Paper in November 2011 inviting views on the future of the Family Reunifijication Directive. The Netherlands actively lobbied for more restrictions,30 but it was concluded in 2012 that the Directive would not be renegotiated. 2.3

EU Free Movement rules: a “mobile” EU citizen with TCN family members

The third scenario concerns reunifijication under EU free movement rules; which, as it has long been observed, contain a right to family reunifijication absent from international law and most national immigration legislations.31 Although it should 26

Ryszard Cholewinski, “Family Reunification and Conditions Placed on Family Members: Dismantling a Fundamental Human Right,” European Journal of Migration and Law 4 (2002): 271–290.

27

Case C-540/03, European Parliament v Council of the European Union, ECR I-05769 (2006).

28

Case C-578/08, Rhimou Chakroun v Minister Van Buitenlandse Zaken, ECR I-01839 (2010).

29

Philippe de Bruycker and Yves Pascouau, Le Regroupement Familial à La Croisée Des Droits Européen Et Belge (Brussels: King Baudoin Foundation, January 2011) p. 24.

30

Huddleston, Right to Family Reunion-the Dynamics between EU Law and National Policy Change.

31

Jacqueline Bhabha and Sue Shutter, Women’s Movement : Women Under Immigration, Nationality and Refugee Law (Stoke-on-Trent: Trentham Books, 1994), 207; Kees Groenendijk,

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be clear from this and other contributions to this volume that the free movement of persons has remained contested (see in particular the chapters by Johns and van Riemsdijk), free movement rights for European workers—with attendant family reunifijication rights—were fully realized in European law by 1968.32 2.3.1

Which sponsors and which family members are eligible?

Free movement rights originally applied to persons exercising their right to work in another European country, who could be accompanied or joined by the following family members irrespective of their nationality: (a) (b)

his [sic] spouse and their descendants who are under the age of 21 years or are dependants; dependent relatives in the ascending line of the worker and his spouse.” 33

The 1990 Residence Directives extended the right to free movement to some noneconomically active categories of persons.34 In the 2004 Citizens’ Directive,35 EU citizens (an invention of the 1992 Maastricht Treaty), and not workers, were made the holders of free movement rights, and by extension of the right to family reunifijication. The category of ‘spouse’ now also covers registered partners, and the provisions are, of course, gender-neutral, no longer reflecting an assumption of a male primary migrant. 2.3.2

Conditions?

Although family reunifijication provisions under EU free movement rules are almost remarkably liberal, some restrictions exist. Sponsors must be exercising their free movement rights by working or studying in another Member State, or must

“Family Reunification as a Right Under Community Law,” European Journal of Migration and Law 8 (2006): 215–230. 32

Willem Maas, Creating European Citizens (Lanham Md.: Rowman & Littlefield, 2007).

33

Regulation (EEC) No 1612/68 of the Council of 15 October 1968 on Freedom of Movement for Workers Within the Community, 1968, art. 10.

34

Alina Tryfonidou, “Reverse Discrimination in Purely Internal Situations: An Incongruity in a Citizens’ Europe,” Legal Issues of Economic Integration 35, no. 1 (2008): 43–67.

35

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 Reside Freely Within the Territory of the Member States, OJ L158, 30.4.2004, p. 77–123.

Reverse Discrimination in European Family Reunification Policies have sufffijicient resources for themselves and their family members not to become a burden on the social assistance system of the host Member State during their period of residence and have comprehensive sickness insurance cover in the host Member State.36

It is thus important to note that the right to family reunifijication derived from free movement rights has retained an economic component, although it has been watered down and the position of the EU citizen qua citizen has been strengthened. 2.3.3

Can it be denied?

As with family reunifijication for TCNs under the Family Reunifijication Directive, reunifijication for free movers can be denied on grounds of public policy, public security or public health,37 although these restrictions must be interpreted narrowly and cannot include economic reasons. The grounds for refusal are thus narrower than under the Family Reunifijication Directive. In the surprising 2003 Akrich38 ruling, the European Court held that prior legal residence in the EU could be required for TCN family members, under the logic that EU law does not produce a right of fijirst entry into the Union (to preserve national competence in immigration law). This reasoning was explicitly overturned in Metock,39 and the Court has as a rule enforced the right to family reunifijication for free movers (see further discussion below as to why this is). Other than the reasons for refusal above, the Court has confijirmed that family reunifijication under free movement rules can be denied if it involves a marriage of convenience. 40 In line with this, many states have turned their attention on uncovering abuse of this route to reunifijication. 41 It should be emphasized, however, that the fact of exercising free movement rights as a means of sponsoring one’s legitimate family members—thus circumventing national immigration legislation—is not in itself fraudulent, rather it is an exercise of a long-standing individual right.

36

Ibid., 7(1)(b).

37

Ibid., chap. VI.

38

Case C-109/01, Secretary of State for the Home Department v Hacene Akrich, ECR I-9607 (2003).

39

Case C-127/08, Blaise Baheten Metock and Others V. Minister for Justice, Equality and Law Reform, ECR I-6241 (2008).

40 41

Metock, para. 75. For the Netherlands see Saskia Bonjour and Betty De Hart, “A Proper Wife, a Proper Marriage. Constructions of ‘us’ and ‘them’ in Dutch Family Migration Policy,” European Journal of Women’s Studies forthcoming (2012).

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2.4

Recent CJEU jurisprudence: Ruiz Zambrano and the right of residence for EU citizens

A fourth type of family reunifijication has arisen from the recent CJEU case law in the three 2011 cases Ruiz Zambrano, McCarthy and Dereci. It can only be sketched, as the precise implications of these cases for family reunifijication rights are still unclear. 2.4.1

Which sponsors and which family members?

The landmark Ruiz Zambrano case created a new basis for family reunifijication under EU law, derived from EU citizenship status under TFEU art. 2042 and independent of any cross-border movement (i.e. in what has previously been characterized as a ‘purely internal situation’, where EU law would not apply.) The case concerned two Belgian citizen children and their parents and older sibling who were failed asylum seekers from Colombia. Although denied work permits in Belgium, the parents were protected from deportation through a non-refoulement clause because of the ongoing Colombian conflict. The children had obtained Belgian citizenship because of a domestic legal provision seeking to prevent statelessness. 43 While the children could not rely on free movement rules in their own country of citizenship, the Court held that they nonetheless had a right of residence in the Union deriving from their EU citizenship. They considered that article 20 TFEU precludes national measures which have the efffect of depriving citizens of the Union of the genuine enjoyment of the substance of the rights conferred by virtue of their status as citizens of the Union

and that

42

The fact that the right is derived from EU citizenship status under the Treaty on the Functioning of the European Union means it applies throughout EU27, but not in EEA countries.

43

They did not have Colombian nationality as their parents had not registered them with the Colombian authorities.They were not obligated to do this and could hardly be expected to given their protection against refoulement to Colombia, see Michael A. Olivas and Dimitry Kochenov, “Case C- 34/09 Ruiz Zambrano: A Respectful Rejoinder,” University of Houston Public Law and Legal Theory Series Paper 2012-W-1 (January 22, 2012) The provision of Belgian law which gave them citizenship has since been amended.

Reverse Discrimination in European Family Reunification Policies a refusal to grant a right of residence to a third country national with dependent minor children in the Member State where those children are nationals and reside, and also a refusal to grant such a person a work permit, has such an efffect. 44

Thus, for these citizen children to genuinely enjoy the rights inherent in their EU citizenship, in particular the right of residence, Belgium must issue work permits to their parents. It is interesting to note that the right to family life is not mentioned in the ruling. Although the right of citizens to live in their country of citizenship and be protected from expulsion is an undisputed and fundamental norm of international law, this outcome is nonetheless somewhat unexpected. In fact, citizen children may often face so-called ‘constructive deportation’ if their non-status parents are deported, 45 as children are generally unable to act as sponsors in family reunifijication cases (they cannot, for example, meet income requirements). Regardless of their citizenship, children are often expected to follow their parents, much like women were expected to follow their husbands to their country of citizenship in a previous era. 46 While the broader consequences and the precise scope of Ruiz Zambrano remain unclear, it appears that it has potential for strengthening the rights of children in immigration cases. 47 2.4.2

Conditions?

It is unclear whether any conditions could be imposed in cases based on Ruiz Zambrano precedent, but it seems evident that no income or housing requirements could be used as the sponsor is, in fact, dependent on the non-European family member. 2.4.3

Can it be denied?

The full consequences of this ruling are unclear, and currently under debate. 48 The ‘genuine enjoyment test’ established in Ruiz Zambrano and reiterated in Dereci re44 45

Ruiz Zambrano, para. 42–43. Jacqueline Bhabha, “The Citizenship Deficit: On Being a Citizen Child,” Development 46, no. 3 (2003): 53–59.

46

See Bhabha and Shutter, Women’s Movement.

47

See Gareth T. Davies, “The Family Rights of European Children: Expulsion of Non-European Parents,” EUI Working Papers, no. 2012/4 (February 10, 2012).

48

Anja Lansbergen, “Court of Justice of the European Union European Citizenship Rights in Internal Situations: An Ambiguous Revolution? Decision of 8 March 2011, Case C-34/09 Ger-

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quires national courts to determine if “the Union citizen has, in fact, to leave not only the territory of the Member State of which he is a national but also the territory of the Union as a whole.” 49 This is an odd test given that, as noted above, citizens cannot be forced to leave their own country—a fact that was highlighted in McCarthy but not in Ruiz Zambrano or Dereci. It is difffijicult to see how such a situation of constructive deportation could arise in cases other than those very similar to Ruiz Zambrano, or at least other than in cases with two non-citizen parents. McCarthy certainly suggests that the new right only applies to children—Ms. McCarthy was unable to obtain residence for her Jamaican husband, as she did not depend on it for her residence in her home country. As few European states practice American-style birthright citizenship, this again narrows the scope of this right.50 2.5

Comparison

There are diffferences between these four scenarios both in terms of personal scope of the right, scope of the ‘family’, conditions and grounds for denial. The following table outlines these diffferences in brief. As is clear, the rights of those using their EU free movement rights are quite extensive in comparison to the other categories.51

ardo Ruiz Zambrano v Office National De L’emploi (ONEM),” European Constitutional Law Review 7, no. 2 (June 1, 2011): 287–307; Elsuwege and Kochenov, “On The Limits of Judicial Intervention”; Olivas and Kochenov, “Case C- 34/09 Ruiz Zambrano”; Iyiola Solanke, “Using the Citizen to Bring the Refugee In: Gerardo Ruiz Zambrano v Office National De L’emploi (ONEM),” The Modern Law Review 75, no. 1 (January 1, 2012): 101–111. 49

Dereci, para. 66.

50

The two countries that have faced such legal challenges, Ireland in the Chen case (Case C-200/02, Kunqian Catherine Zhu and Man Lavette Chen v Secretary of State for the Home Department, ECR I-9925 (2004)) and Belgium in Ruiz Zambrano, have both amended their citizenship legislation to prevent further instances of this kind.

51

Note that this comparison and table is not fully exhaustive, as there are special rules for Turkish citizens under the Ankara agreement and for family members of highly skilled migrants in accordance with the Blue Card Directive (2009/50/EC). Further, Convention Refugees are generally exempted from some requirements that apply to other TCNs, such as income requirements.

Family Reunifijication Directive

EU minus Denmark, UK, Ireland

EU27 + Norway, Switzerland, Liechtenstein, Iceland

EU27

Resident TCN

Mobile European

Static EU citizen

Treaty of the European Union (TFEU) art. 20

Free Movement Directive

National immigration legislations and ECHR art. 8

Geographic scope Legal basis

Static citizen and EU broadly TCNs in countries speaking not bound by Directive

Category

Dependent ascending relatives.

Some countries allow elderly dependent parents and dependent children 18-21.

Other family members? Some countries allow elderly dependent parents and dependent children 18-21.

No, but must usually be economically active or selfsufffijicient.

Yes, usually income and housing requirement. Some countries have minimum age limits and integration conditions

Usually income and housing requirement. Some countries have minimum age limit and integration conditions.

Conditions?

If alternative Parents likely, viz, No. is that the EU Ruiz Zambrano. citizen must leave EU. Unlikely.

Yes, dependent under 21.

Yes, sometimes with additional conditions for teenage children arriving independently.

Yes. Some countries allow unmarried and same sex.

Yes, including registered partner.

Yes. Sometimes restrictions for those aged 15-18.

Children?

Yes. Sometimes unmarried and same-sex. Sometimes minimum age limit (21/24)

Spouse?

EU citizen—even If alternative is in home country that EU citizen must leave EU. Relatively unlikely, viz. McCarthy.

Person using EU free movement right

Resident TCN, sometimes after up to 2 years of residence. Sometimes age limit (21)

Citizen, sometimes with minimum age limit (21/24)

Sponsor?

Often possible to deny if it is possible for the family to live together elsewhere. Wide margin of appreciation for states. If conditions, narrowly read, are nor complied with, or on account of public policy, public security, public health. Fraud. Narrower margin of appreciation. Public policy (but not economic reasons), public security, public health. Fraud. Narrow margin of appreciation. If free movement or residence in EU does not depend on the TCN family member

Denial?

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3

Towards an explanation of the fragmentation of family reunification rights

This section proposes a broad explanation for the fragmentation of family reunifijication rights, drawing on insights from historical institutionalism and policy transfer studies. I suggest that there are two family reunifijication ‘paths’—a national path towards restrictionism and a CJEU path of non-restriction. The Family Reunifijication Directive, I suggest, represents a crossing of these two paths. Over time, the divergence and intersections of these paths are leading to further fragmentation of family reunifijication rights—the diffferent sets of rules for family reunifijication are becoming more diffferent over time. The background condition for this development is, fijirst of all, that there is no common human rights baseline, and secondly, that there is a stark division of competences between nation-states and the EU. 3.1

Background condition: the lack of a common human rights baseline, and a division of competences

Human rights activists often argue that restricting or denying family reunifijication violates human rights obligations.52 Family reunifijication, at its most basic, is a means of realizing the right to family life,53 but while the right to family life is found in all central human rights instruments,54 it is not equivalent to a right to family reunifijication. This is clearly demonstrated in the ECtHR’s ‘elsewhere approach’, outlined above. Furthermore, the Netherlands and Denmark have explicitly set out to ‘test the limits’ of their ECHR obligations.55 The only two international conventions that assert a right to family reunifijication are the Convention on the Rights of the Child (CRC) and the Convention on the Rights of Migrant Workers and their 52

For an example, see Catherine Teule, “L’Union Européenne s’aura-t-elle Passer d’une Politique d’Immigration Familiale Restrictive à la Reconnaissance d’un Droit Véritable à Vivre en Famille?” (presented at the 5th conference of the National Contact Point Luxembourg in the European Migration Network: Migration Policies and Family Lives in Transit, Cercle Cité, Luxembourg, 2012).

53 54

Anderfuhren-Wayne, “Family Unity in Immigration and Refugee Matters.” The Universal Declaration of Human Rights art. 16 (1) on the right to marry and 16 (3) on the right to protection for families (not binding); parallel provisions in arts. 17 and 23 of The International Covenant on Civil and Political Rights (ICCPR) contains parallel provisions (arts. 17 and 23); art. 10 of the International Covenant on Economic, Social and Cultural Rights; art. 8 of the European Convention on Human Rights.

55

See Bonjour, “Between Integration Provision and Selection Mechanism. Party Politics, Judicial Constraints, and the Making of French and Dutch Policies of Civic Integration Abroad.”

Reverse Discrimination in European Family Reunification Policies

Families (ICRMW). The latter convention is not ratifijied by any European country, and a number of countries restrict the application of the former in immigration matters. Secondly, the above typology demonstrates the division of competences in this area. While family reunifijication claims of ‘static’ citizens are solely within the competence of nation-states, family reunifijication claims of those who are able to trigger EU rights (by movement or by virtue of their EU citizenship) are purely within the competence of the Union—in the last instance, the European Court. Finally, the family reunifijication claims of TCNs have, since the entry into force of the Directive, moved from Member State competence to EU competence in most states. Fragmentation and divergence is possible, then, because of the lack of a clear baseline of obligations, and because of a division of competences. 3.2

The path of the European Court

In this section, I draw on recent work by Susanne K. Schmidt 56 and suggest that the family reunifijication rights extended by the European Court have come as a result of path-dependent development of jurisprudence. This goes against some authors who have identifijied a ‘liberal’ turn at the Court,57 and better explains the outcomes of some recent cases, in particular McCarthy. 3.2.1

Path Dependence

Path dependence, popularized in historical institutionalist analyses in political science,58 refers to situations where “a decision limits the range of available options at subsequent points and, in so doing, encourages continuity in the form of retention of the original choice.”59 The beginning of a particular path is historically contingent, but over time, it becomes increasingly difffijicult to turn back because of one of 56

Susanne K. Schmidt, “Who Cares About Nationality? The Path-dependent Case Law of the ECJ from Goods to Citizens,” Journal of European Public Policy 19, no. 1: 8–24.

57

Alina Tryfonidou, “Family Reunification Rights of (migrant) Union Citizens: Towards a More Liberal Approach,” European Law Journal 15, no. 5 (2009): 634–653.

58

See Paul Pierson, “Not Just What, but When: Timing and Sequence in Political Processes,” Studies in American Political Development 14, no. 01 (2000): 72–92; Paul Pierson, Politics in Time: History, Institutions, and Social Analysis (Princeton University Press, 2004); James Mahoney, “Path Dependence in Historical Sociology,” Theory and Society 29, no. 4 (2000): 507– 548.

59

Randall Hansen, “Globalization, Embedded Realism, and Path Dependence The Other Immigrants to Europe,” Comparative Political Studies 35, no. 3 (April 1, 2002): 270.

71

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two mechanisms: ‘lock-in’, which makes it impossible to veer offf path, and ‘disincentive efffects’ (such as positive feedback) which make it unlikely or undesirable.60 It may seem redundant to argue that path dependence is important in the development of case law when jurisprudence relies on precedent. As Schmidt notes, however, “precedent does not prohibit courts from pursuing alternative lines of reasoning.”61 She emphasizes a second mechanism, namely positive feedback through litigation. Litigants are encouraged to look to other cases—even those addressing other forms of free movement - for potentially successful litigation strategies, and thus reinforce the reliance of certain lines of argument, across diffferent domains of the Court. Thus, precedent creates a path, but the positive feedback of litigants provides disincentives to veer offf the given ‘path’, encouraging path-dependence of judicial decisions across diffferent free movement domains. 3.2.2

Path Dependence, Free Movement and Family Reunification

The fijirst free movement cases litigated at the Court concerned the movement of goods. Schmidt argues that these early cases were seen through a non-discrimination lens, but that the Court then adopted a non-restriction approach in Dassonville62 and Cassis de Dijon,63 whereby any Member State regulation which restricted the free movement of goods could be found in violation of EU law.64 When the Court took on cases concerning the free movement of persons, it initially subscribed to a non-discrimination approach. There were good reasons for this: the original treaty provisions emphasized non-discrimination, persons are arguably diffferent from goods and from corporate actors, and secondary legislation also emphasizes nondiscrimination. In spite of these good reasons to retain the non-discrimination approach, however, the Court came to apply its non-restriction logic to the free movement of persons as well. Schmidt identifijies the shift as occurring in the 1995 Bosman case, where a rule that did not discriminate based on nationality was nonetheless declared an obstacle to free movement (of football players, as it were).65 Schmidt does not deal extensively with family reunifijication-related free movement cases, but if we look at the well-known 1992 Surinder Singh66 case we can al60

Ibid., 271.

61

Schmidt, “Who Cares About Nationality?,” 10.

62

Case 8/74, Procureur Du Roi v Dassonville, ECR I-837 (1974).

63

Case 120/78 Rewe-Zentral v Bundesmonopolverwaltung für Branntwein [1979] ECR 649.

64

Schmidt, “Who Cares About Nationality?,” 10.

65

Case C-415/93, Union Royale Belge Des Sociétés De Football Association ASBL v Jean-Marc Bosman, ECR I-4921 (1995).

66

Case C-370/90, The Queen v Immigration Appeal Tribunal Et Surinder Singh, ECR I-4265 (1992).

Reverse Discrimination in European Family Reunification Policies

ready detect something similar to a non-restriction argument. There, the Court upheld Mr. Singh’s right to family reunifijication with his British wife in the UK upon return after she had worked in Germany, relying on the argument that failing to ensure such a right might ‘deter’ people from moving in the fijirst place. A deterring factor in this context is arguably a potential restriction on free movement and not a form of discrimination, especially considering that there was no general right to family reunifijication for British citizens who had not moved anywhere (indeed, the decision led to a form of reverse discrimination). This type of reasoning, where there must be no deterrence from using free movement rights, was pursued67 until it was surprisingly reversed in the 2003 Akrich ruling, where the Court held that prior lawful residence in the EU could be required of TCN family members. The Court soon experienced the costs of this reversal, however. Litigants were confused as to how this could be reconciled with the previous case law suggesting a diffferent conclusion, and academic observers were nearly uniformly critical; with some going so far as to suggest that “the Akrich judgment probably qualifijies as the worst judgment in the long history of the Court of Justice”.68 Five years later, in the Metock case, the Court admitted its mistake, noting explicitly that Akrich could not stand. In Metock, then, it did not matter that the TCN spouses were failed asylum seekers without prior lawful residence, because denying family reunifijication would restrict free movement and residence of their mobile EU citizen spouses who had moved to Ireland and met their spouses there. The Court concluded that “if Union citizens were not allowed to lead a normal family life in the host Member State, the exercise of the freedoms they are guaranteed by the Treaty would be seriously obstructed”.69 Schmidt identifijies the evolution from Akrich to Metock, but fails to acknowledge that Metock was in fact a return to the pre-Akrich status quo, with extensive family reunifijication rights in the name of non-deterrence. Analyzing the case law on family reunifijication through this non-restriction lens brings helpful insights. Firstly, it helps us understand reverse discrimination better. In the context of restrictive immigration policy at the national level (further explored in section 3.3), a non-restriction logic where any restriction on movement (including the movement of family members) is potentially unlawful, reverse discrimination is practically an expected outcome. Secondly, it provides a useful corrective to interpretations of family reunifijication jurisprudence whereby the Court

67

Case C-459/99, MRAX, ECR I-6591 (2002); see also the related services case Case C-60/00,

68

Steve Peers, “Free Movement, Immigration Control and Constitutional Conflict,” European

Mary Carpenter v Secretary of State for the Home Department, I-6279 (2002). Constitutional Law Review 5, no. 02 (2009): 178. 69

Metock, para. 62.

73

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is seen as giving free movers or their TCN family members ‘bonus rights’.70 Some authors have suggested that the developments evident in cases such as Metock are a result of a liberalization of the Court.71 If the Court was indeed on a liberalizing mission, seeking to extend rights to third-country national family members, one could hardly account for the outcome in the recent McCarthy case, which indeed elicited some puzzlement.72 The fact that Ms. McCarthy could not obtain reunifijication with her spouse, whereas the Ruiz Zambrano children could reunite with their parents, can be explained by the fact that there was no restriction on movement or residence in her case. The ruling in fact emphasizes that Ms. McCarthy would not be restricted from using her free movement rights by the denial of her spouse’s residence permit; nor does she depend on him for residence in the Union. This is fully in line with the non-restriction logic—if the only right that should not be restricted is the right to free movement and residence in the Union. In fact, one might add, the ruling could encourage her to use her free movement rights—because if she moved to another EU country she would be able to rely on that very right to obtain family reunifijication. In brief, if we examine the Court’s jurisprudence in light of a path-dependent process whereby the argument of non-restriction of movement and residence has become the central (and, in light of McCarthy, seemingly exclusive) concern of the Court, we can more easily account for recent case law than by suggesting that the Court has become more ‘liberal’. It is not the right to family reunifijication per se which is important. Rather, the right to family reunifijication is only enforced when its absence would represent a restriction on the right to free movement and residence. 3.3

The national path

In this section I outline the current trend of restrictionism in national-level family reunifijication policy. I make no claim that this process is path-dependent, which would mean that it was almost inevitable that restrictions in one European country 70

Alina Tryfonidou, “Mary Carpenter v. Secretary of State for the Home Department: The Beginning of a New Era in the European Union,” King’s College Law Journal 14 (2003): 84.

71

Tryfonidou, “Family Reunification Rights of (migrant) Union Citizens”; Sergio Carrera and Anja Wiesbrock, Whose Citizenship to Empower in the Area of Freedom, Security and Justice? The Act of Mobility and Litigation in the Enactment of European Citizenship (Brussels: Centre for European Policy Studies, 2010).

72

Helena Wray, “Family Life and EU Citizenship: A Commentary on McCarthy C-434/09 5 May 2011,” News, EUDO Citizenship, May 19, 2011, http://eudo-citizenship.eu/citizenship-news/479family-life-and-eu-citizenship-a-commentary-on-mccarthy-c-43409-5-may-2011, accessed 16 July 2012.

Reverse Discrimination in European Family Reunification Policies

would lead to restrictions in another. I do call it a path, however, as I consider that there is a clear trend towards further restrictions—especially in Northern Europe— likely caused by mechanisms of policy transfer and Europeanization. This suggests that these policy changes are interdependent, if not path-dependent. When speaking of this national trend, I also include the negotiations leading up to the Family Reunifijication Directive. It is reasonable to assume that, in order to ensure national policy coherence, rules for citizens and TCNs were considered jointly by the states concerned and that states would prefer rules for citizens and TCNs to be similar, or at least not more liberal for TCNs than citizens. Family migration became the single most important source of permanent migration to Western Europe when most European countries ended their labor immigration programs in the mid-1970s. In the two decades following the ‘immigration stop’, many believed that once guest workers had been joined by their spouses and children, family migration would largely cease. It became increasingly clear, however, that this would not happen. Firstly, in a globalized world more people would meet spouses abroad. And secondly, the children of guest workers began to ‘import’ spouses from their ancestral country. These two developments changed the character of family migration flows, shifting from reunifijication of pre-existing families toward family formation, and have influenced the direction of the national ‘path’. To control immigration, it became clear that states would have to assert control over family migration flows. 3.3.1

Key concepts: policy transfer and horizontal Europeanization

Since the 1990s, public policy scholars have been interested in the related concepts of lesson-drawing, policy transfer and policy difffusion, and recently, these literatures have been linked up with studies of Europeanization.73 The core concern of all these diffferent schools is the efffect of policy changes in other countries (or at the supranational level) on policy change at home, and they usually emphasize the same mechanisms—the most notable ones being learning, emulation, competition, harmonization and coercion. Competition has been recognized as a dynamic force leading to stricter asylum policies.74 Coercion and harmonization can also be at work with regard to binding European legal standards, but as noted, the Family Reunifijication Directive has so far led to relatively limited harmonization. Still, there is no doubt that certain types of family reunifijication policies have spread, and the 73

Tanja A. Börzel and Thomas Risse, “From Europeanisation to Diffusion: Introduction,” West European Politics 35, no. 1 (2011): 1–19.

74

Ségolène Barbou des Places, “Taking Legal Rules into Consideration: EU Asylum Policy and Regulatory Competition,” Journal of Public Policy 24, no. 1 (2004): 75–98.

75

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cause of this can likely be identifijied as a form of policy transfer or so-called horizontal Europeanization. Policy transfer refers to a process by which “knowledge about policies, administrative arrangements, institutions and ideas in one political setting (past or present) is used in development of policies, administrative arrangements, institutions and ideas in another political setting”.75 Europeanization, or the study of the “EU’s impact on the domestic policies, institutions, and political processes of the member states”,76 has traditionally been seen as a vertical process of ‘uploading’ and ‘downloading’ of policies, but it has also increasingly been recognized as a horizontal process that does not involve binding measures being imposed on Member States, but rather sees the EU as an arena.. Essentially, one might argue that horizontal Europeanization is a specifijic form of policy transfer facilitated by EU forums and cooperation. I suggest here that some ‘pioneering’ countries introduced new ways of regulating family migration in the 1990s and early 2000s, and that other countries followed through processes of policy transfer and horizontal Europeanization, learning from and/or emulating their peers.77 3.3.2

Pioneers

A shift in the approach to family migration can be observed in some European countries from the early 1990s, most notably in Denmark and the Netherlands. Denmark, whose 1983 Immigration Act was the world’s ‘most liberal’78, ended its unqualifijied right to family reunifijication when it implemented an income requirement in 1992.79 Around the same time, restrictive shift occurred in Dutch family migration policy, with the imposition of income requirements on refugees, citizens and settled immigrants.80 In 2000, Denmark introduced a requirement that Danish spouses post collateral, to be claimed by the state if family members used public funds.81 The 75

David P. Dolowitz and David Marsh, “Learning from Abroad: The Role of Policy Transfer in Contemporary Policy-making,” Governance 13, no. 1 (2000): 5.

76 77

Börzel and Risse, “From Europeanisation to Diffusion,” 1. It is difficult without close qualitative study to distinguish learning from emulation, and this chapter will not seek to distinguish the two. They are both processes based on communication between countries and observation of other countries’ practices.

78

Garbi Schmidt, “Law and Identity: Transnational Arranged Marriages and the Boundaries of Danishness,” Journal of Ethnic and Migration Studies 37, no. 2 (2010): 257–275.

79

Moeslund and Strasser, Family Migration Policies in Denmark, 5. The subjective right to family reunification was then removed from the Immigration Act in 2002.

80

Saskia Bonjour, Grens en gezin beleidsvorming en gezinsemigratie in Nederland, 1955-2005 (Amsterdam: Aksant, 2009).

81

Moeslund and Strasser, Family Migration Policies in Denmark.

Reverse Discrimination in European Family Reunification Policies

same year, they introduced the fijirst iteration of the so-called attachment requirement, whereby couples seeking to reunite in Denmark were required to demonstrate that their collective attachment to Denmark (measured in years of residence and so forth) was equal to their attachment to an alternate country of residence.82 Two years later, the requirement was tightened—the attachment to Denmark had to be stronger than to an alternate country of residence—and a minimum age limit for both spouses was set at 24. The Netherlands has repeatedly raised income requirements and application fees, and adopted a Danish-style minimum age limit set at 21 (the highest currently permitted under the Family Reunifijication Directive). Finally, the Netherlands implemented an integration condition in 2004, whereby applicants must demonstrate some Dutch profijiciency before entry.83 3.3.3

Followers

It has been documented that restrictive policies have gained traction in Europe, both for citizens and in particular embodied in the Family Reunifijication Directive. 84 Six countries currently have a minimum age limit for spouses set above the age of majority—arguably a controversial measure.85 It was considered or tested in still more countries: Norway abandoned its proposed age limit and attachment requirement, after a controversial public consultation in 2006-7. The United Kingdom recently lowered its age limit back down from 21 to 18 after a Supreme Court ruling invalidated it, but then proposed an attachment requirement instead, as per the Danish blueprint,86 although it was not implemented along with other changes to British family immigration rules in 2012. The integration tests pioneered by the Netherlands 82

Marie Louise Schultz-Nielsen and Torben Tranæs, Ægteskabsmønstret for Unge Med indvandrerbaggrund:Konsekvenser Af Ændringer i Udlændingeloven i 2000 Og 2002, Arbejdspapir (Rockwool Fondens Forskningsenhed, 2009).

83

See Bonjour, “Between Integration Provision and Selection Mechanism. Party Politics, Judicial Constraints, and the Making of French and Dutch Policies of Civic Integration Abroad”; Sara Wallace Goodman, “Controlling Immigration Through Language and Country Knowledge Requirements,” West European Politics 34, no. 2 (2011): 235–255.

84 85

See in particular Pascouau and Labayle 2011. Thomas Huddleston, “European Commission Asks: When Is an Adult Not an Adult?,” Blog, Migrant Integration Policy Index MIPEX Blog, November 27, 2011, http://www.mipex.eu/blog/ european-commission-asks-when-is-an-adult-not-an-adult, accessed 9 December 2011. A further large number of countries have an age limit of 18, but as this corresponds to the age of majority it has been much less controversial.

86

Quila v Secretary of State for the Home Department (United Kingdom Supreme Court 2011); Home Office, “Family Migration: A Consultation” (UK Border Agency, July 2011).

77

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have also taken hold in a number of other countries. Germany, Denmark and the UK have adopted similar integration tests requiring would-be family migrants to demonstrate some knowledge of the language.87 France has also implemented a less restrictive form of integration test.88 As mentioned, all European countries now use income requirements for family reunifijication. There are no grounds to claim that the increasing restriction of family migration results from a path dependent process. Nonetheless, the trend is quite clear, especially in Western Europe, and it points in the direction of further restrictions and, in particular, an increasing number of conditions for family members to comply with. These may result from parallel right-wing pressures in diffferent European countries, but the fact that such similar policies have been adopted across the continent in quick succession suggests an important role for policy transfer and difffusion, or the parallel processes of horizontal Europeanization—these debates travel.89 Some authors have naturally focused on horizontal Europeanization, and it is clear that the Directive negotiations provided an arena for the transfer of ideas. French policymakers also explicitly looked to the Netherlands when they implemented their own integration conditions for family migrants.90 The widespread use of an income requirement, coupled with a call in the European Pact on Immigration and Asylum to “regulate family migration more efffectively”,91 has perhaps encouraged the few countries that did not have such a provision to implement one. It is important, however, to emphasize that these processes are not simply a result of European harmonization of immigration policy. Denmark is formally outside EU cooperation on Justice and Home Afffairs, and Norway is not an EU Member State. Norway has, it seems, paid much more attention to Danish policy changes than to EU developments in family migration.92 In fact both Norwegian and British policymakers have explicitly looked to Denmark in recent years, with Norwegian policymakers going on study trips to Copenhagen to learn about Danish family migration

87

) It should be noted that the countries differ with regard to what extent they facilitate the completion of such tests for applicants.

88

Bonjour, “Between Integration Provision and Selection Mechanism. Party Politics, Judicial Constraints, and the Making of French and Dutch Policies of Civic Integration Abroad.”

89

Albert Kraler, “Family Migration Policies in Europe: Reflections on the Role of Family Migration Policies and Their Impacts on Those Affected by Them” (presented at the UDIs vårkonferanse 2012, Plaza Hotel, Oslo, 2012).

90

Bonjour, “Between Integration Provision and Selection Mechanism. Party Politics, Judicial Constraints, and the Making of French and Dutch Policies of Civic Integration Abroad.”

91

European Council, “European Pact on Immigration and Asylum”, 2008.

92

Interviews with several Norwegian politicians and civil servants, March-June 2012.

Reverse Discrimination in European Family Reunification Policies

policies in 2006,93 and the British Home Offfijice recently inviting views on whether to implement a Danish-style attachment requirement in the UK.94 Norwegian policymakers note that Denmark and the Netherlands ‘stood out’, because they had taken bold steps towards addressing serious issues that were increasingly being understood in the context of family-related migration (notably forced marriages, through the age limit); making them natural examples to follow.95 An added incentive for adopting immigration restrictions already tested in other European countries may be that they are essentially pre-screened against violations of EU law or ECHR standards, thus making them more likely to pass scrutiny in domestic Courts. In addition to the interest in innovative restrictive policies on the receiving end, it appears that the Netherlands and Denmark have also to some extent ‘promoted’ their policies. As has been reported, the Netherlands, along with Germany and Austria, were central in pushing the Family Reunifijication Directive in a restrictive direction from the Commission’s liberal starting point, and in preserving national control over conditions for reunifijication.96 Additionally, Denmark, despite not being bound by the Directive, was active in the negotiations. Adler-Nissen notes that Bertel Haarder, [Danish] Minister of Refugees, Immigration and Integration Afffairs, and his team of offfijicials promoted the hard-line Danish policy and a stricter directive raising the age limit of the sponsor and his/her spouse from 18 to 21 years against the more liberal France, Sweden and Belgium;

taking such an active part in the negotiations that “the Greek delegation forgot that Denmark had an opt-out”.97 Thus, the Directive negotiations became a platform for these two countries to encourage other countries to adopt stringent family reunifijication rules nationally, in addition to pushing for a stricter Directive.

93

Marianne Johansen and Lizette Kabre, “På Kurs i Hard Innvandringspolitikk,” VG, April 19, 2006.

94

Home Office, “Family Migration: A Consultation.”

95

Interviews with several current and former Norwegian politicians March-June, 2012.

96

Georg Menz, “Stopping, Shaping and Moulding Europe: Two-Level Games, Non-state Actors and the Europeanization of Migration Policies,” JCMS: Journal of Common Market Studies 49, no. 2 (2011): 437–462.

97

Rebecca Adler-Nissen, “Behind the Scenes of Differentiated Integration: Circumventing National Opt-outs in Justice and Home Affairs,” Journal of European Public Policy 16, no. 1 (2008): 74.

79

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3.3.4

Why have Denmark and the Netherlands led, and some, but not others, followed?

This chapter seeks to document and explain fragmentation and divergence of family reunifijication rights, not to explain cross-national variation. It is evident, however, that such variation persists and that not all countries are equally restrictive even though this is the general trend. As I have documented, Denmark and the Netherlands led the charge towards stricter policies, and a number of countries have followed suit (France, Norway, the United Kingdom, Germany, Austria, Belgium etc.). Some, however, have not followed this restrictive approach: Sweden has maintained relatively open access to family reunifijication for both citizens and TCNs, and some countries have aligned their rules for citizens with EU free movement legislation. Southern European countries such as Portugal and Spain have also maintained more liberal family reunifijication rules. Why this variation? Some elements of an explanation can be proposed here, which should be further pursued and tested in an alternate forum. Firstly, as noted, family life is constitutionally protected in France and Germany, but not the Netherlands or Denmark, which should theoretically limit restrictions. This ‘old institutionalist’ explanation does not yield a sufffijicient explanation, however, as both France and Germany have adopted more restrictive policies in recent years. In a related approach, Westfall assessed the linkage between an overall culture of humanitarianism and individual rights on the one hand and open family reunifijication policies on the other hand (seeing family migration as ‘humanitarian’ in the same vein as asylum policy), but found mixed evidence for such a relationship.98 The role of far-right parties in promoting restrictive migration policies, including with regard to family migration, should not be ignored either. While far right parties with clear anti-immigrant stances have been influential in Denmark (the Danish People’s Party) and the Netherlands (Pim Fortuyn List), they have not held much sway in Sweden until very recently, providing a potential explanation for variance. There appears to be a more robust relationship between stricter family immigration policies and influence of the right more broadly construed (after all, the far right has not been in government in many countries).99 However, this is not simply a case of the left being liberal and the right being restrictive with regard to family migration: new restrictive policies were introduced by Norway’s center-left govern98

Aubrey Westfall, “Ties That Bind? Political Economy, Humanitarian Norms, and Immigration” (presented at the American Political Association Conference, Toronto, 2009).

99

Aubrey Westfall, “Real and Imaginary Migrants: The Politics of Family Migration Policies Before and After Entry” (presented at the IMISCOE Conference, Amsterdam, 2012).

Reverse Discrimination in European Family Reunification Policies

ment and the British labour government, however. It could, however, be argued that as parties on the left have found themselves in competition with the far right they may have adapted their message accordingly in order to win or retain voters.100 I consider that the two preceding proposed explanations have some clear limitations. The fijirst one, relying on human rights, arguably overstates the human rights aspect of family migration in an era with increased family formation migration; often considered less weighty in human rights terms.101 With regard to the political left-right explanation, it must be emphasized the issues animating family migration policies in many countries in recent years have transcended traditional left-right divides. An important motivation and argument to restrict family immigration has arguably been the association of family migration with serious problems such as forced marriages, which have united politicians across the political spectrum. These deviant practices, although unclear in scope, have been highly politicized. They have also been interpreted as being motivated by the desire to obtain immigration permits, hence making immigration restrictions a solution to the problem. Such an interpretation appears to have been shared to some extent by left-of-center governments in Norway and the UK, but not in Sweden, thus making restrictions on family migration an inappropriate solution to these problems for Swedish politicians. I believe these difffering problem defijinitions and levels of politicization of issues related to family migration likely best explain the variation in restrictiveness at the national level, but further investigation is needed to verify this, and it cannot be settled within the scope of this chapter. Thus, while the trend is not entirely uniform, I would argue that there is enough evidence to assert that national level family reunifijication rules are generally moving in a more restrictive direction.102 3.4

Intersecting Paths: the Directive

In this section I argue that the Family Reunifijication Directive represents a crossing of the restrictive national path and non-restriction path of the European Court. Mahoney has argued that when paths intersect there may be no consequences, but 100

Tim Bale et al., “If You Can’t Beat Them, Join Them? Explaining Social Democratic Responses to the Challenge from the Populist Radical Right in Western Europe,” Political Studies 58, no. 3 (2010): 410–426.

101

See for the example the discussion on international obligations in the Commission Report proposing the Norwegian Immigration Act, NOU 2004:20, Ny Utlendingslov (Arbeidsdepartementet, 2004).

102

On this point, see also Steven Legomsky.”Rationing Family Values in Europe and America: An Immigration Tug of War Between States and Their Supra-National Associations”. Georgetown Immigration Law Journal 25(4) (2011) p. 807-859.

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the crossing may sometimes have enduring consequences, with a new path forming from the meeting of the two.103 Arguably, when the nationally directed path staked out during negotiations on the Family Reunifijication Directive intersected with the Court’s non-restriction path, it was taken out of the hands of Member States and offf into an unanticipated direction.104 The negotiations leading up to the Family Reunifijication Directive mirror the national developments outlined above. It is reasonable to assume that, in order to ensure national policy coherence, rules for citizens and TCNs were considered jointly. As noted, the Netherlands, along with Germany and Austria, pushed the Directive in a highly restrictive direction, making it rather unrecognizable from the Commission’s initial proposal, which was more closely aligned with family reunifijication rules under EU free movement legislation.105 As described in the fijirst part of this chapter, the Directive allows for a wide range of conditions to be placed upon family members, and the circle of family members with which one may reunite is narrower than for mobile citizens. The Directive, then, is largely representative of the restrictive path promoted by countries such as the Netherlands and Denmark, although many of the restrictive measures are optional. The regulation of family reunifijication for third country nationals took an unexpected turn, however, when the European Court weighed in on the Directive. As noted, the Court has decided two cases concerning the Directive, Parliament v. Council and Chakroun. These rulings have brought the legal situation for TCNs seeking family reunifijication closer to free movers in some respects. First, in 2006, the European Parliament challenged the legality of the Directive with regard to fundamental rights protection, claiming that the various permitted derogations from a right to family reunifijication violated human rights standards. The Court did not agree—but only because it interpreted the Directive and the derogations therein narrowly. While the Court did not see the Directive as creating rights to family reunifijication as extensive as those of mobile EU citizens,106 it did consider that the

103

Mahoney, “Path Dependence in Historical Sociology,” 529.

104

For another take on this, see Saskia Bonjour and Maarten Vink, “When Europeanization Backfires: The Normalization of European Migration Politics” (presented at the Europeanization : Do we still miss the big picture?, Université Libre de Bruxelles, 2012).

105

See also Cholewinski, “Family Reunification and Conditions Placed on Family Members”;

106

Anja Wiesbrock, “Court of Justice of the European Union: The Right to Family Reunification

Menz, “Stopping, Shaping and Moulding Europe.” of Third-Country Nationals Under EU Law; Decision of 4 March 2010, Case C-578/08, Rhimou Chakroun V. Minister Van Buitenlandse Zaken,” European Constitutional Law Review 6, no. 3 ( 2010): 462–480.

Reverse Discrimination in European Family Reunification Policies

Directive went above and beyond international legal instruments such as the ECHR, afffijirming that it imposes precise positive obligations, with corresponding clearly defijined individual rights, on the Member States, since it requires them, in the cases determined by the Directive, to authorise family reunifijication of certain members of the sponsor’s family, without being left a margin of appreciation. (my emphasis).107

In the second case, Chakroun, the Court went further. It examined Dutch income requirements, and determined that ‘recourse to social assistance’ must be interpreted by analogy to the Court’s existing jurisprudence on the free movement of persons, referring to the Eind 108 case for guidance in order to determine the meaning of ‘social assistance’. Secondly, by analogy to Metock, the Court also ruled that the Directive does not permit distinctions between family formation and reunifijication cases. Thus, through these arguments by analogy to free movement jurisprudence (arguably another instance of path-dependent jurisprudence) the Court invalidated the Dutch income requirement, which was higher in cases where the relationship began after the sponsor immigrated to the Netherlands,109 and which could lead to rejection due to the sponsor having received exceptional and temporary social assistance. Luedtke has argued that the Directive has entered the EU’s legal portfolio and has thus triggered a process of path dependence whereby future versions can be negotiated (and interpreted by the CJEU) under institutional circumstances that are more favourable to EU control (and, by extension, to immigrant rights).110

I suggest that the Court has introduced elements of its jurisprudence on the free movement of persons into its reading of the Directive, afffijirming subjective right and dictating the interpretation of concepts such as ‘social assistance’.111 The result 107

Parliament v Council, para. 60.

108

Case C-291/05, Minister Voor Vreemdelingenzaken En Integratie v Eind, ECR I-10719 (2004).

109

Mr. and Mrs. Chakroun had been married since 1972, but he had entered the Netherlands in 1970 and it was therefore classified as family formation.

110

Adam Luedtke, “Uncovering European Union Immigration Legislation: Policy Dynamics and Outcomes,” International Migration 49, no. 2 (2011): 10–11.

111

Regarding this reasoning by analogy, see also Anja Wiesbrock, “Granting Citizenship-related Rights to Third Country Nationals: An Alternative to the Full Extension of European Union Citizenship?”, European Journal of Migration and Law, vol. 14 no. 1 (2012): 63-94.

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is a situation in-between the national path and free movement rules, with many conditions but still a subjective right once they are fulfijilled. Thus, this development, while arguably resulting from an efffort coherence at the Court,112 has resulted in further disparity between diffferent sets of family reunifijication rules, because it has brought the situation of TCNs closer to that of persons using their free movement rights, while static citizens have not benefijited from this extension of rights from the Court, and have simultaneously been afffected by the diffferent countries’ moves to restrict family immigration rules. 4

Free movement and access to family reunification

4.1

Free movement and the fragmentation of family reunification rights

The free of movement of persons, as formulated at the beginning of the process of European integration, has included provisions for workers to bring their family members since they were fully achieved in 1968. This contrasts, as noted, with many national immigration legislations, where such a right has been absent or has become increasingly narrow in scope or subject to new conditions. This chapter has argued that the European Court has come to interpret the family reunifijication provisions for free movers within a logic of non-restriction, whereby limitations on family reunifijication are unlawful because they restrict free movement. This will, almost inevitably, lead to a situation of reverse discrimination between mobile Europeans and other categories of sponsors whose family members are subject to national immigration control, which will almost always be stricter. Moreover, I have argued that this path-dependent development of jurisprudence in a non-restriction direction has led to an increasing fragmentation of family reunifijication rights. As the non-restriction path ‘met’ the nationally negotiated restrictions in the Directive, it caused further divergence between the legal regimes by asserting a subjective right to reunifijication and by transferring over its interpretations of income and resources from its free movement case law; thereby creating yet a new regime with its own set of rights and requirements. Further, recent case law has also emphasized non-restriction on residence in the Union, not just on movement, as a fundamental right of EU citizenship, which has then created a new avenue to family reunifijication in certain circumstances. One result of these developments is confusion on behalf of those seeking family reunifijication with TCN family members. Many are learning that exercising the right 112

Julien Hardy, “The Objective of Directive 2003/86 Is to Promote the Family Reunification of Third Country Nationals”, European Journal of Migration and Law, vol 14 no 4 (2012), p. 442.

Reverse Discrimination in European Family Reunification Policies

to free movement in order to go and work in another European country may be the most secure means of obtaining family reunifijication with their spouse. This strategy has many names, depending on one’s national perspective. In the Netherlands this is called the ‘Belgian Route’113, whereas Danes talk of ‘love refugees’114 in Southern Sweden. A growing group of Norwegian mixed families now lives across the Swedish border in Strömstad, after awareness-raising about this possibility by the interest group ‘Grenseløs Kjærlighet’ (‘Love without borders’).115 They have assembled extensive information about how to make use of this opportunity on their website.116 This use of ‘free movement’ is arguably by no means free. In fact, one might go so far as to call it a type of forced movement—there is no other alternative if the couple wishes to live together in Europe. It should also be noted that while few restrictions are imposed through law, a certain amount of ‘capital’ is required of families to make this ‘choice’. As Leerkes and Kulu-Glasgow contend, This is a case of ‘legal capital’, perhaps a variant of social capital, since the privilege arises from formalized group membership, i.e. citizenship. Additionally, it seems to require human capital in terms of legal knowledge, economic capital in terms of funds for legal advice, and social capital to arrange housing and work in the other EU state.117

We may add to this list the possibility of language barriers getting in the way of exercising free movement for work. It may not be coincidental that the ‘Belgian Route’ is best-known between countries that share languages. What seems odd is that the states that force couples to make this move to a neighboring country do so in full knowledge that once the couple has made the move, they will have obtained the right to move together back home under the same legislation, in accordance with Surinder Singh. Nuala Mole commented, ironically,

113

A. Leerkes and I. Kulu-Glasgow, “Playing Hard (er) to Get: The State, International Couples, and the Income Requirement,” European Journal of Migration and Law 13, no. 1 (2011): 95– 121.

114

Lindsey Rubin, “Love’s Refugees: The Effects of Stringent Danish Immigration Policies on Danes and Their Non-Danish Spouses,” Connecticut Journal of International Law 20 (2005 2004): 319.

115

As Norway is not an EU member, there may have been particularly low awareness about EU-related rights.

116

Grenseløs Kjærlighet, “EØS-løsningen,” Grenseløs Kjærlighet, n.d., http://grenseloskjaerlighet.com/eos-losningen/, accessed 26 June 2012.

117

Leerkes and Kulu-Glasgow, “Playing Hard (er) to Get,” 110.

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that perhaps European states are “are fostering the free movement of persons”.118 Some states have decided to align their family reunifijication legislation for citizens with EU free movement rules to avoid reverse discrimination and the inherent absurdities in the situation.119 But this means giving up much of their current border control arsenal with regard family migration - the single most important migration flow into many European countries. In the contested Metock case, ten countries (including Denmark and the Netherlands120) intervened on Ireland’s behalf asking the Court to let Member States retain ultimate control over fijirst entry in the Union— which the Court refused as this would potentially restrict free movement for those with TCN spouses, thus making free movement rights variable.121 The concern that family reunifijication rights would be variable instead is identifijied, but outside of the Court’s competence. The only means of control which the Court will let states retain are those based on public security, public health and public policy, as well as in cases of fraud and marriages of convenience. 4.2

Fraud and abuse: New intersections?

In the past few years it appears that immigration fraud, especially in the form of marriages of convenience (i.e. marriages entered into solely for the purpose of gaining entry into a country) has risen on the agenda of a number of European countries.122 Some of this attention has also focused on fraud among mobile Europeans; for example, it has been claimed in Ireland that 30% of family reunifijication cases involving EU citizens are fraudulent, and new measures have been implemented since Metock to detect such fraud.123 It is, arguably, troubling that some states are 118

Nuala Mole, “Family Reunification in EU Law and Under the ECHR” (presented at the UDIs Vårkonferanse, Plaza Hotel, Oslo, 2012).

119

For example Hungary, see Ágnes Töttós, “How Free Are the Member States to Devide on Their National Laws Concerning Family Reunification?” (presented at the 5th Conference of the National Contact Point Luxembourg within the European Migration Network: Migration Policies and Family Lives in Transit, Cercle Cité, Luxembourg, 2012).

120

These ten countries were Czech Republic, Denmark, Germany, Greece, Cyprus, Malta, the Netherlands, Austria, Finland and the United Kingdom.

121

Metock, para. 67 .

122

This is not to say that concerns over such marriages are new. For a look at their long history in the UK, see Helena Wray, “An Ideal Husband? Marriages of Convenience, Moral Gatekeeping and Immigration to the UK,” European Journal of Migration and Law 8 (2006): 303.

123

Máiréad Enright, “Immigration and ‘Marriages of Convenience’,” Academic blog, Human Rights in Ireland, January 30, 2010, http://www.humanrights.ie/index.php/2010/01/30/immigration-and-marriages-of-convenience/, accessed 26 June 2012.

Reverse Discrimination in European Family Reunification Policies

drawing lines of equivalence between the exercise of the long-standing individual right to free movement and immigration fraud. The Court has been clear that as long as the marriage and the exercise of Treaty rights are both real, no additional hurdles can be imposed. The European Commission also published guidelines in 2009, following Metock, emphasizing the fact that use of free movement is not in itself abuse, regardless of individual motives for doing so.124 The Metock ruling was, however, discussed in the EU’s Justice and Home Afffairs Council in September 2008 in the context of concern over illegal immigration,125 and shortly after the United Kingdom raised concerns over fraud in the Council, proposing that the Council conclude that, among other things, “only those exercising their rights in the spirit of the Treaty should benefijit from freedom of movement”,126 with the clear implication that those who ‘engineer’ a free movement situation to get around domestic immigration control for family members are not doing so. The Irish authorities have raised such concerns at more recent Justice and Home Afffairs meetings.127 In their submission to the European Commission’s Green Paper on the Family Reunifijication Directive, the UK also addressed this separate issue, arguing that an increasing number of third-country nationals enter into relationships of convenience with European nationals to gain access to free movement rights. [..] The fraudulent acquisition and abuse of rights undermines their integrity as well as the credibility of the European Union (EU) immigration controls. [..] A more coordinated and strategic response to tackling fraud and abuse of migration routes, both at the external border and after entry to the EU, is vital.128

124

European Commission, Communication from the Commission to the European Parliament and the Councilon guidance for better transposition and application of Directive 2004/38/EC on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States, COM (2009) 313 final.

125

“Press Release, 2890th Council Meeting, Justice and Home Affairs” (Council of the European

126

United Kingdom delegation, “Council Doc. 15903/08” (Council of the European Union, No-

Union, September 25, 2008). vember 18, 2008). 127

Irish Naturalisation and Immigration Service, ”Sham Marriages leading to abuses of EU freedom of movement rights”, Press Release, 9 June 2011, available at http://www.inis.gov.ie/ en/INIS/Pages/PR11000007, accessed 23 January 2012.

128

Home Office, “UK Response to the Commission Green Paper on Family Reunification”, March 2012, 1, available at http://ec.europa.eu/dgs/home-affairs/what-is-new/public-consultation/2012/pdf/0023/famreun/memberstatesnationalgovernments/united_kingdom_ en.pdf, accessed 7 September 2012.

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The document goes on to list a number of anecdotal cases of such abuse, but the scope of fraud in family migration cases is currently unknown. Some recent effforts to map it have been made. A study commissioned by Norwegian immigration authorities, published in 2010,compared effforts against marriages of convenience in fijive countries,129 and the most recent study published by the European Migration Network concerns marriage fraud and false declarations of parenthood (the latter may become more important if Ruiz Zambrano indeed strengthens the rights of TCN parents).130 There are some indications, then, that at the level of implementation of family reunifijication for mobile Europeans, some states are considering or implementing new obstacles to family life by sometimes drastically increasing scrutiny in order to determine if these relationships are ‘real’. It remains to be seen whether this potential new intersection of paths—a second combination of the control logic and the logic of non-restriction—will lead to further fragmentation and diffferentiation, or whether it will make access to family reunifijication for free movers less secure than it currently is. 5

Conclusions

This chapter has surveyed the complex terrain of access to family reunifijication in Europe and examined the interplay between the free movement of persons and access to family reunifijication. As the typology presented in the fijirst half of this chapter shows, those persons who can rely on rights from EU legislation can reunite with a wider circle of family members and are subjected to fewer conditions. While some authors have suggested that the Court has taken a liberal turn and is seeking to extend the rights of free movers and their family members, I have argued that they have rather followed a path-dependent logic of non-restriction on free movement, developed in its earlier case law on the free movement of goods. This interpretation better explain why the Court has not generally emphasized the right to family life as such, and has not upheld a right to family reunifijication in all its recent case law (cf. McCarthy). As this logic has been extended not just to the freedom of movement, but also to residence in the Union, the Court has created yet another family reunifijication scenario. And the non-restriction logic has been used, by analogy, in litigation

129

Econ Pöyry, Proformaekteskap: en sammenlignende studie. Regler og praksis i Norge, Sverige, Tyskland, Danmark og Nederland, Commissioned Report (Oslo: Norwegian Directorate of Immigration, 2010).

130

European Migration Network, Misuse of the Right to Family Reunification: Marriages of Convenience and False Declarations of Parenthood (Brussels: European Migration Network, 2012).

Reverse Discrimination in European Family Reunification Policies

on the Family Reunifijication Directive, the Directive has been taken away from its restrictive national roots and closer to the free movement regulations. The exercise of free movement, however, stands out as the safest means to obtain family reunifijication in the context of strict national legislation. As a result, many couples are in fact ‘forced to move freely’ in order to live together. These developments should be followed closely. The diffferential treatment documented in this chapter should also be examined, not just by lawyers but by others concerned about the equal treatment and about the possibility of migrants—and by those who do not move, but who happen to have foreign spouses—to have their family lives respected.

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4.

Under-Appreciated, Under-Employed and Potentially Unwelcome: The Long-Term Future of Polish Migrants in Ireland and Britain1 Michael Johns

In 2013, due to the economic meltdown in Greece, the economic and political instability in Italy and the ongoing coverage of the decline of the Eurozone it would be easy to dismiss the European Union (EU) as a failure. While it is true that both the short-term and long-term future of the Eurozone and maybe the EU as a whole are threatened more now than at any other point it would be foolhardy to write the entire European project offf as a failure. It is somewhat ironic that currently only the EU’s warts are discussed when in the past it could be argued that too much attention was placed on its successes and not enough on its underlying issues. There appears to be little middle ground when discussing the EU. Its supporters discuss the peace and stability the union provided Europe in the post-war years and how until recently it made the member countries rich while Euroskeptics focus on the threats to national identity and the bureaucracy in Brussels that has helped cause the current economic fijiasco. As with almost all things, the truth lies somewhere in the middle when discussing the European Union. While the EU has helped bring peace and stability to a continent that knew nothing but war and conflict and it created the largest economy in the world, it also led to bureaucratic red tape, fijiscal limitations and a change to the member states’ understanding of the concept of sovereignty. What the EU has also done is change our perception of what is possible in terms of integration and international organizations. The EU has been a grand experiment in what is possible in political, social and economic cooperation between states. It has changed our understanding of many ideas and concepts and it has led to new 1

The author would like to thank Laurentian University for their funding support for this project through the Laurentian University Research Fund and the School of European Languages, Translation and Politics at Cardiff University for providing me the research space necessary as a Visiting Research Fellow to complete this work.

Willem Maas (ed.), Democratic Citizenship and the Free Movement of People Copyright 2013 Koninklijke Brill NV. ISBN 978-90-04-24327-9 pp. 91-113

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ways of addressing issues and problems. One area in which the EU has changed our understanding is the concept of migration. The EU, through the development of the freedom of movement has fundamentally changed the memberstate’s ability to control immigration and has created new challenges regarding questions of social cohesion. The migrants who have moved throughout the EU as European citizens have rights not shared by other migrants.2 With the expansion of the European Union into Central and Eastern Europe in 2004 we have now seen the movement of large numbers of these intra-EU migrants particularly into Ireland and Great Britain. The largest single group to have moved into these two states have been Poles. The Poles moved west after they gained EU membership with the hopes of fijinancial rewards that were simply not possible in Poland. Many came for the adventure of living in a new place and to enjoy the freedom of movement not possible just over a decade previously when Poland was part of the Soviet bloc. Their excitement was not reciprocated by some in the west who feared that they would overwhelm the local economy and drive wages down while raising local unemployment. Many hoped that the movement west would be temporary and as the Eastern economies grew there would be a return of the migrants to their homelands. While some migrants have indeed returned, thousands have stayed. They have formed communities and have created a life in their adopted lands. Yet they continue to face issues of discrimination, abuse, isolation and mistrust. This chapter provides an initial examination of the issues facing the Polish migrants who have moved to Ireland, England, and Wales. Much of the attention focuses on the Poles in Britain but the Irish case is also relevant to this discussion and is examined where appropriate. The Polish community was chosen because it is the largest group numerically (even though other groups, such as Latvians migrated in larger numbers per capita) to move. In both Britain and Ireland Poles were the faces of intra-EU migration from the East and therefore were the target of more attention and at times scorn compared to other groups. The chapter argues that it is necessary to accept the permanence of these communities in Ireland and Britain which reinforces why these issues need to be resolved quickly. Simply put, the problem is not going to go away. The chapter is less concerned with rooting an argument within a larger academic literature as it is in putting the Polish migrant reality into context. It is clear that the Polish community in Britain and Ireland represent a departure from the traditional fijield of migration studies. As mentioned above, these migrants are unlike migrants from elsewhere around the world as they have rights granted them by an international organization. The fact that they share a common European citi-

2

Willem Maas, Creating European Citizens (Lanham MD: Rowman & Littlefield, 2007).

The Long-Term Future of Polish Migrants in Ireland and Britain

zenship makes them diffferent from traditional international migrants who do not share rights of residence and employment with their host communities.3 In many ways the intra-EU migrants who settle are more like national minorities, in particular national minorities such as the Russians in Latvia and Estonia who are not in fact native to a particular region but are generally accepted as national minorities none the less. They appear to lack the recognition as such in both the academic and political communities and as a result the literature surrounding national minorities is also not completely appropriate in which to imbed this work. As such these migrants occupy a new middle ground and they have not occupied it long enough for a full literature base to be established. This chapter adds to the initial process of understanding the reality on the ground so that future analytical work can be accomplished. The chapter ends by asking the question: who should be responsible for ensuring that the rights of the intra-EU migrants are protected and that the social cohesion of the community is maintained now that these states have a new semi-permanent minority within their borders? The freedom of movement within the European Union has been a critical yet ever changing concept. This freedom was one of the ‘fundamental freedoms’ on which the precursor to the EU, the European Economic Community (EEC) was founded. The Treaty of Rome in 1957 outlined the four freedoms of movement being: people, goods, capital and services to help facilitate the creation of the common market. Indeed, Maas has shown that the “rights that today form the core of EU citizenship date from the free movement provisions of the European Coal and Steel Community” and that the Treaty of Rome simply reproduced the free movement provisions of the 1951 Treaty of Paris that established the ECSC. 4 However, at this early stage the defijinition of who qualifijied for this free movement was severely limited, despite the High Authority (the precursor of the European Commission) heralding in 1955 that free movement for coal and steel workers would be “a fijirst step towards the creation of a ‘common market’ for labour”5 The free movement of people was only to be given to workers. These workers would be able to move from one state to another, better utilizing their particular skills and furthering the economic union. As outlined in the English version of the Treaty of Rome (Title III, Chapter 1, Article 48) the restrictive nature of this right is clear:

3

See the introductory chapter by Willem Maas.

4

Willem Maas, “The Genesis of European Rights,” Journal of Common Market Studies 43:5 (2007), 1011.

5

Cited in Maas, “The Genesis of European Rights,” 1016.

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Chapter 4 – Michael Johns 1. 2.

3.

4.

Freedom of movement for workers shall be secured within the Community by the end of the transitional period at the latest. Such freedom of movement shall entail the abolition of any discrimination based on nationality between workers of the Member States as regards employment, remuneration and other conditions of work and employment. It shall entail the right, subject to limitations justifijied on grounds of public policy, public security or public health: (a) to accept offfers of employment actually made; (b) to move freely within the territory of Member States for this purpose; (c) to stay in a Member State for the purpose of employment in accordance with the provisions governing the employment of nationals of that State laid down by law, regulation or administrative action; (d) to remain in the territory of a Member State after having been employed in that State, subject to conditions which shall be embodied in implementing regulations to be drawn up by the Commission. The provisions of this Article shall not apply to employment in the public service.

Even with this somewhat limited interpretation of freedom of movement, the efffect was substantial. As Geddes notes to ensure this freedom: “required the establishment of supranational legal and political competencies” and as a result “member states could no longer control migration by nationals of other member states moving primarily for the purposes of work (who could enforce these right through the court)”.6 What this meant was that these workers could move across state borders without going through the traditional immigration process and their rights were to be protected by a supranational body. Maas shows that, as early as 1960, free movement was described as “fundamental right” and in 1961 the European Commission presented it as “the fijirst aspect of a European citizenship.”7 After the freedom of movement was fijirst outlined in Treaties of Paris and Rome, further integration and rulings began to change the understanding of this right very quickly. The fijirst important change came in 1968 with the passing of EEC Regulation 1612. 1612/68 clarifijied the EEC’s anti-discrimination policies and expanded the rights of workers, in particular to bring their families with them to the new state. Moreover, once in the new state, the spouse, children and other dependants, and parents of the worker were also able to gain residence and employment permits.8 Regulation 1612, when tied to another EEC piece of legislation from 1968, 6

Andrew Geddes, Immigration and European Integration, 2nd Edition (Manchester: Manchester University Press, 2008), 43.

7

Willem Maas, Creating European Citizens, 21.

8

Regulation EEC 1612/68.

The Long-Term Future of Polish Migrants in Ireland and Britain

Directive 360 created the conditions for permanent movement of workers and their families from one member country to another with very little control by the incoming state. Directive 360/68 set out the right for workers and their families to establish residency in the new state for up to fijive years (renewable) and gave them the right to come and go as they pleased without an exit visa. Most importantly, the directive allowed workers to stay in the new state even if they lost their job. Becoming unemployed was no longer grounds to revoke either their work or residency permit. If 1612/68 created the conditions for workers and their families to come to a new member state and start a new life, 360/68 gave them the opportunity to stay. After the 1968 expansion of rights, the EEC then EC and eventually EU continued to refijine and expand the right of free movement. The result of all these changes was the ability for European citizens to use their evolving citizenship in a larger Europe to look for the best opportunities for employment and the best life for their families. They were able to move throughout the region and establish themselves in new states. Their children were able to go to school and after a short residency the entire family was able to access social services. Moreover, while the state was required to provide these services and ensure that the workers did not face discrimination, it could only monitor those workers entering and leaving the country. There was little the state could do in preventing their arrival or encouraging them to leave. This provided workers with an opportunity not found anywhere else in the world. It may be somewhat surprising then that by and large most EC citizens chose not to use this ability to move. By the 1970’s only approximately one million workers and their families had moved to a new state. In the 1980’s that number increased to two million, however this was only about 0.1 percent of the total population of the European Community.9 The vast majority of those who chose to move to another member state in search of employment were from Italy and later Greece, Spain and Portugal. The reasons for this lack of movement are simple: most of the member states’ economies and unemployment rates were similar (Italy being the exception) and many of those who could potentially benefijit from moving lacked the language skills necessary to gain employment and integrate into society. While there was little movement throughout the EC/EU in its early days, there was great concern that this would radically change after the EU member states decided to fundamentally alter the nature of the organization by expanding eastward after the fall of communism in the late 1980’s and early 1990’s. Once the EU had settled on expansion into (originally) 10 Central and East European states there was an immediate concern in many member states that they would soon be over-run by economic migrants looking for a better life, and more importantly willing to work 9

Linda Hantrais, Social Policy in the European Union, 3rd Edition (New York: Palgrave Macmillan, 2007).

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for less than what the local population would. Even with the dropping of Romania and Bulgaria (replaced by Malta and Cyprus) concerns remained about the eight continuing candidates, known as the A8. As McDowell elaborates: One of the most difffijicult issues raised during the accession negotiations was how to tackle fears of the existing member-states that these new, less-privileged citizens would immediately migrate westwards on accession. Once in the West it was assumed that they would either swell the unemployment fijigures or take jobs of poorly qualifijied natives, as well as constitute a politically-awkward enclave population.10

In France this concern was known as the “Polish Plumber Problem” and in the lead up to the 2004 accession date there were some scholarly predictions that appeared to validate those concerns. A 2004 survey found that up to one quarter of pharmacists in Lithuania were considering moving west once they were able to freely migrate within the EU. This was not surprising as “the average salary of a pharmacist in Ireland was 53,000 Euros, in the United Kingdom 65,000, and in Germany more than 81,000 Euros, while in Lithuanian it was below 10,000 Euros”.11 Kupiszewski predicted that over the long-term over one million Poles would immigrate to other EU countries and that the EU should expect “a short-lived relatively high wave of emigration as soon as the legal and administrative restrictions on the freedom of the movement of labour are lifted”.12 The most in-depth (and the most alarming for those concerned) study was published in 1999 by Bauer and Zimmerman. They argue that while the period of migration would be short and that it would be mostly temporary; they predicted that long term between two and three per cent of the entire population of the A8 countries would migrate west. They also argued that the migrants would choose not to move very far away from home, preferring to move to the closest, richest states they could fijind. They predicted that Austria and Germany would see the largest influx in migrants and that many could choose to move to Britain due to the migrants’ ability to speak English.13 These dire predictions led the EU to allow each state to determine the rules in which the A8 citizens 10

Linda McDowell, “Old and New Economic Migrants: Whiteness and Managed Migration Policies,” Journal of Ethnic and Migration Studies, 35:1 (2009), 20.

11

Kastytis Šmigelskas, Liudvika Starkiene and Zilvinas Padaiga, “Do Lithuanian Pharmacists Intend to Migrate?,” Journal of Ethnic and Migration Studies, 22: 3 (2007), 507.

12

Marek Kupiszewski, “How trustworthy are forecasts of international migration between Poland and the European Union?,” Journal of Ethnic and Migration Studies, 28:4 (2002), 642.

13

Thomas Bauer and Klaus F. Zimmerman, “Assessment of Possible Migration Pressure and its Labour Market Impact Following EU Enlargement to Central and Eastern Europe,” IZA Research Report #2, (July 1999).

The Long-Term Future of Polish Migrants in Ireland and Britain

could move for employment. These restrictions could be for a maximum of seven years (expiring in May 2011) and could be reviewed throughout the restriction period. Each state determined how much of a potential threat to their labour force the A8 migrants could be and then chose how restrictive their policies would be. The most restrictive countries were not surprisingly mainly those closest to the A8 geographically. Germany, Finland, Belgium, Luxembourg, France, Greece and Spain all maintained the pre-existing rules that prevented a migrant from gaining a work visa unless it could be proven that there was not a national capable of carrying out the work. Portugal, Italy, Austria and the Netherlands were slightly less restrictive as they implemented a quota system. Denmark, Ireland and Britain opened up their borders based on work permits with wage and working condition stipulations. Only Sweden followed the principles of free movement and allowed open movement. The Swedish government did so however not based on the belief in equality or freedom of movement, but rather the parliament could not agree on the nature of the restrictions and they missed the deadline to implement a policy.14 It should be noted that these restrictions were unique not only in terms of previous expansions of the EC/EU; they were unique to the A8 countries in the 2004 expansion. These restrictions did not apply to either Cyprus or Malta. This continued a trend throughout the accession process where the A8 states were held to standards no other state ever needed to meet.15 This double standard did not go unnoticed. As Currie notes, 2006 was the EU’s “Year of Workers’ Mobility” and that it “is perhaps somewhat ironic that such positively-framed mobility projects have been put in place during a period within which a signifijicant proportion of EU nationals experience free movement restrictions”.16 Alicja Borkowska, a journalist for the London-based, Polish language newspaper Polish Express was even blunter in her assessment, calling the seven year period of restrictions a “quarantine” for Central and East European EU citizens.17 Due to a variety of factors, including the lower level of restrictions and the ability of many potential migrants to speak English, there was a signifijicant movement of people into both Ireland and Britain. While they came from all of the A8 states, the largest migration in both countries was by Poles and they subsequently became the face of EU migration in both countries. While they did not come in the doomsday numbers as predicted by some, the Poles established themselves in both Ireland and 14

Tito Boeri and Herbert Brucker, “Why are Europeans so tough on migrants?,” Economic Policy (October 2005), 638.

15

Michael Johns, “Do As I Say, Not As I Do: The European Union, Eastern Europe and Minority

16

Samantha Currie, Migration, Work and Citizenship in the Enlarged European Union (Surrey:

Rights,” East European Politics and Societies, 17:4 (2003), 682-699. Ashgate Publishing, 2008), 2. 17

Interview with Alicja Borkowska, Jounalist- Polish Express, 18 October, 2011, London.

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Britain and there was no indication that as a group they would be leaving anytime soon. The Poles in Britain and Ireland One fundamental diffference between the Irish and British case is the existence of a pre-accession Polish community in Britain. While there is a Polish diaspora in most industrial countries around the world with Ireland being no exception, the size of the Polish community in Britain prior to 2004 was by comparison quite large, having arrived in three waves. The Polish community as a sizeable group in Britain dates back to the Second World War. As allies in the war many Polish soldiers lived and fought in Britain. Most notably, Polish airmen played a large role in the Battle of Britain. After the war, with Poland falling under the influence of the Soviet Union, many of those soldiers decided to stay. During the Cold War period, many other Poles who were able to leave the country did so and headed for Britain and in particular London, increasing the size of the community during this second wave. In the period between the fall of communism and Poland’s accession a third wave of migrants came to Britain, both as traditional immigrants and as illegal migrants willing to work outside of the traditional economy. Ireland did not see such waves of migration from Poland. As a neutral in the war it lacked that common link to Poles and during much of the cold war period Ireland’s GDP was quite low and the country was experiencing its own migrants leaving, as a result it was not an attractive destination for migrants, Poles or otherwise. After 2004 both Ireland and Britain saw an enormous influx of Poles. The exact number of migrants who arrived is difffijicult if not impossible to measure accurately. There are several reasons that this is so difffijicult. The fijigures are based on estimates based on migrants registering with the government (in Britain it was known as the Workers Registration Scheme, WRS) upon their arrival. While this provides a record of who arrived and acknowledged they were in the country to work, it does not account for students who after their studies decide to stay and start working. It is also not possible to account for those who were in the country illegally prior to 2004 who then decided to stay under the new rules. Both the Irish and British governments have no efffective way to track how many migrants are leaving the country either as the WRS remarkably was not tasked with monitoring this. Therefore they must rely on surveys which ask how long migrants are planning to stay and make predictions based on the results. While many have taken migrants at their word that they planned to only remain in Ireland or Britain for two or three years and then return to Poland, the Polish government has not seen the large number of returnees that these predictions would suggest. White provides a compelling argument as to why this is the case. She argues that most migrants, no matter under what conditions and

The Long-Term Future of Polish Migrants in Ireland and Britain

during what time period when asked would say that they plan on returning home one day, whether that is realistic or not. She refers to this phenomenon as the “myth of return”.18 While many Polish migrants may have planned on returning to Poland after making some money, life often changes plans and as a result the predictions sufffer. Finally, predictions on the size of the Polish community are difffijicult because the registration schemes only track those migrants who were coming to work. For many migrant couples who have children and both work it is necessary to bring over their parents to look after the children. This group of migrants is basically invisible to the government (both in Poland and Ireland or Britain). As Justyna Bielak of the Polish Consulate in London notes, authorities often only become aware of this group if they become sick and require access to medical system, or if they break the law and require assistance.19 With so many variables the estimates to the group’s size at any one time varies. At its height the estimates in Ireland were around 200 000 people, most of whom were concentrated in and around Dublin. By 2006 it was estimated that 120 000 people had applied for worker’s registration cards and that number was increasing by 10 000 people a month.20 With the economic downturn in Ireland starting in 2008 it was expected that potentially half that number had stayed, but again it is difffijicult to be sure. Either way, with the migration of Poles into Ireland they became the second largest migrant group in the country after British nationals.21 In Britain the numbers are equally murky. The Home Offfijice, who track those involved in the Worker’s Registration Scheme place the number at around 540 000, but there are other estimates that place the number at double that. Again, with the economic slowdown in Britain in 2010 it was expected that many of the Poles would either return home, or move elsewhere, but the Polish consulate did not believe that number was as high as many would think and the circumstantial evidence backs that up. For example, the consulate in London employed eight consulars to handle the workload and the offfijice processed over 60 000 passports in 2010.22 While the Poles in Ireland were more geographically localized around the capital of Dublin, the Poles in Britain are more spread out. While the majority lived in and around London, there were very large pockets of Poles in other larger cities, such as Birmingham, Slough and Manchester as well as in smaller communities in the Highlands of Scotland and in 18

Anne White, Polish Families and Migration Since EU Migration (Bristol: The Policy Press, 2011), 200.

19

Interview with Justyna Bielak, Criminal Law Consular- Polish Consulate, 25 October, 2011, London.

20

Katarzyna Kropiwiec, Polish Migrant Workers in Ireland, National Consultative Committee on Racism and Interculturalism (NCCRI), Community Profiles Series (September 2006), 24.

21

Email correspondence with Elizabeth Sliwinska, Journalist-Dublin Polska Gazeta, July 2009.

22

Interview, Bielak, 2011.

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Southwest Wales, most notably in and around the town of Llanelli which will be discussed in much greater detail below. It is in this large urban/small urban and rural divide that there was an important diffference in the Polish migrants. As with all groups it is impossible to generalize specifijic demographic characteristics, however it is fair to say that the majority of Poles who lived in the urban centres fijit Fihel and Kaczmarczyk’s profijile of: young, university graduates with at least a general working understanding of English.23 Many of the Poles who came to the smaller and rural communities are very diffferent. While still young, this group was overwhelmingly male and often far less educated (most amounting to what would be considered in North America as High School) with very limited profijiciency in English.24 These Poles were often recruited through agencies to work in specifijic locations. They often were involved in employment that did not require language skills or higher education. For example in the Welsh town of Llanelli, almost all the Poles who arrived via the recruiting agency worked in a local meat packing facility. Both types of migrants, the well-educated urban dwellers and the less-educated migrants brought to smaller locations appear to be permanent fijixtures in Irish and British societies. As mentioned, the expectations of their return to Poland during times of economic slowdown did not materialize. While the doomsday scenarios of mass Polish migration to the west did not occur, those who did arrive planned to stay or would be quickly replaced by someone else. These migrants faced challenges, frustrations and potentially danger in their new countries and it appears that no one had the answers as to how to best address these concerns. Issues Facing Intra-EU Polish Migrants It is important to note from the outset that not all Polish migrants faced all of the issues outlined below. Obviously each individual’s narrative is diffferent based on their unique circumstance. That said, it is important to examine the issues that have been identifijied as areas of concern as only then can policies be properly implemented to address them. For A8 migrants as a whole, and Poles specifijically they face four general problems: 1) Deskilling 2) Discrimination and Social Issues 3) Exploitation and 4) a Chilly Political Climate concerning their presence in Ireland and Britain.

23

Agnieszka Fihel and Pawel Kaczmarczyk, “Migration: A Threat or a Chance?,” in Polish Migration to the UK in the ‘New’ European Union, ed. Kathy Burrell (Surrey: Ashgate Publishing, 2009).

24

Andrew Thompson, Paul Chambers and Lukasz Doleczek, (2010) “Welcome to Llaneski: Polish Migration in South West Wales,” Contemporary Wales, 23:4 (2010), 1-16.

The Long-Term Future of Polish Migrants in Ireland and Britain

1. .

Deskilling

Many of the higher-educated Poles who came to Ireland or Britain experienced deskilling. This occurs when migrants must choose employment that is below what they are qualifijied to do. For Poles, obtaining higher education, while intellectually challenging, is easier to obtain than elsewhere due to the Polish educational system’s lack of tuition. As a result the labour market in Poland became oversaturated with highly qualifijied candidates, who then chose to come to Britain or Ireland to fijind work in their fijield. When they arrived they found that they could not fijind work in their desired fijield and had to chose to take a lesser job in order to stay. As a result, many young, highly-educated Poles ended up working in the service industry in restaurants or hotels. There are a variety of reasons for this. For some when they arrived they discovered that their profijiciency in English was not at a standard that would allow them to work in jobs in their chosen fijield. Others simply lacked the confijidence in their language skills to apply in the fijirst place.25 While for many migrants the money they were able to earn in the lower skilled job exceeded what they could earn in their chosen fijield in Poland it was still demoralizing to be trained to do a job that they were then prevented from doing. For those who were capable English-speakers the issue of deskilling was particularly frustrating. They faced bureaucratic red tape when they tried to get their educational or professional qualifijications recognized and many were told that despite being trained in Poland, in order to be certifijied a particular fijield, for example social work, they had to be retrained in Ireland or Britain. This forced the individual to sit through classes where they were already familiar with the material and while in school they were unable to work to pay their expenses. This was a hardship that forced many to either choose a lower skilled job that did not require certifijications or to abandon their plan to work in the country entirely.26 Even if the migrant was able to fijind work in their chosen fijield their salary was “sometimes surprisingly low, suggesting that some migrants may experience a ‘wage penalty’ in that their qualifijications and experience are not sufffijiciently taken into account”.27 While it is clear how deskilling adversely afffected the migrant, it is important to remember the negative impact it had on Irish and British society. It is true that if the Polish migrants were able to fijind higher skilled employment they would be in competition with local employment seekers and in times of tough 25

Interview with Barbara Zagrodniczek, Federation of Poles in Great Britain, 19 October, 2011, London.

26

Interview with Anna Zawislak, Mentor, Polish Psychologist Association, 21 October, 2011, London.

27

James Wickham and Torben Krings, “Polish Migration to Ireland: New Mobilities in an Enlarged EU,” MCA Newsletter, 4 (April 2010), 1.

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economic times this put even more stress on those looking for work and could lead to conflict. However, in many fijields there was a shortage of qualifijied workers where these migrants could have been of benefijit to society. While it may appear that this type of migration benefijited the worker (who was earning more than they would in Poland regardless of the position) and the state (they were able to fijill lower skilled positions that are difffijicult for employers to get locals to fijill), the reality was less optimistic. The migrant was forced to choose between becoming recertifijied, sacrifijicing time and money- to relearn what they already knew, or take employment that was less profijitable and less challenging. Poland was faced with a ‘brain drain’ where their young, highly-qualifijied workers were not in the country which afffected the overall health of the Polish economy. Britain and Ireland did not benefijit from a potential ‘brain gain’ where eager qualifijied workers were ready to come and fijill a void in the market. As Currie notes, the “acceptance of the usefulness of the CEE migrants for fijiling shortages, particularly in lower-skilled sectors, contradicts somewhat the established objectives of encouraging knowledge circulation throughout the EU”.28 Dating back to the original concept found in the Treaty of Rome, the idea behind the freedom of movement for workers was for workers to move to use their skills where they could be best employed. For Poles in Britain and Ireland this was not occurring and no one was fully benefijiting as a result. 2.

Discrimination and Social Issues

Beyond the bureaucratic difffijiculties faced by many A8 migrants they also faced other societal issues. Most notably, many Poles complained about varying levels of discrimination and stereotyping against them. In the most extreme cases this involved damage to property or physical attacks. In schools that saw an increase in the number of Polish children attending there were issues of bullying and taunting. It also involved anti-Polish grafffijiti, such as an outbreak in Llanelli or anti-migrant letters to the editor or comments in news sources. One particularly alarming case of discrimination occurred in 2011 in the town of Antrim in Northern Ireland. A series of crimes aimed at the Polish community left the community shaken. In March 2011 a Polish family decided to move away after having their car burnt out. In May 2011 three men were charged with breaking into a Polish house and attacking the occupants. Police charged the men with racial hate crimes for the attack. Finally, in October 2011, a Polish family awoke to fijind a pipe bomb on their windowsill. There were other reports of windows being broken and anti-Polish grafffijiti found

28

Currie, Migration, 74.

The Long-Term Future of Polish Migrants in Ireland and Britain

on walls.29 While Antrim may have been the most dangerous place for intra-EU migrants in 2011, other frightening incidents occurred throughout Britain. For example in Edinburgh police noted in 2007 and 2008 that they: were receiving an average of three reports of hate crime attacks daily, with continuing attacks on Polish and other Eastern European workers representing a high proportion of the attacks. Police said they had dealt with 1,022 racist incidents in the Lothian and Borders regions, which includes Edinburgh, in the 12 months up to April 1, 2008, which was twice the rate of incidents recorded three years before. More than a third of the 900 race hate crimes in Edinburgh took place in the city center, and most of those involved Eastern European victims.30

While not directly targeting the Polish community another troubling case in Cookstown, County Tyrone Northern Ireland in 2008 occurred when four Lithuanian migrants, including an eight month pregnant woman were forced to move away after their residence was fijirebombed and their car set on fijire. To make matters worse, this was the third time in ninety days that the migrants had been targeted. While cases such as this and the Antrim case grab headlines, the exact number of attacks on Poles and other East Europeans is not known as many of these attacks were not reported by the victim out of fear or when they were reported they were e judged by the police to be ethnically motivated and were not reported as such. Beyond the threats, intimidation and outright violence against the Polish community (and other A8 migrants) there were other complaints of discrimination. There were many reports that the Polish workers were not paid the same wage as their Irish or British counterparts for doing the same job. As one migrant in Ireland reported to an interviewer “when we became more familiar with the Irish reality, we found out that we were paid half of what we should have been paid”. 31 Beyond pay equity there were issues surrounding promotion and the scheduling of work. As many Polish migrants were either unaware of their labour rights in Britain and Ireland or unwilling to jeopardize their job, they often did not publically complain about these inequities or alert authorities that they were being discriminated against.

29

Belfast Telegraph, “Migrants living in fear after racist bomb attack on Poles”, 13 October, 2011 accessed on 16 November, 2011, http://www.belfasttelegraph.co.uk/news/local-national/ northern-ireland/migrants-living-in-fear-after-racist-bomb-attack-on-poles-16063212. html.

30

Human Rights First, Violence Based on Racism and Xenophobia: 2008 Hate Crime Survey (2008): 13.

31

Kropiwiec, Polish Migrant, 38.

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Other Poles complained that they felt that they did not receive the same level of service once people heard their accent. They referred to incidents when they heard people speak about them under their breath, or when they were mistreated or verbally abused they were told that it was a miscommunication because they did not fully understand the language. Many Poles also felt in some cases that because of their accent they had to prove themselves to an employer in ways that other migrants from Western Europe or elsewhere did not. According to Dawney, this lowlevel discrimination was particularly common in rural areas of Britain. In her study she found that every A8 migrant she interviewed in the rural area of Herefordshire had experienced incidents ranging from verbal abuse in the street or pub to being refused service in shops to deliberate rudeness and unhelpfulness. She concludes that: there clearly is a major problem with small, low-level, but often repeated acts of racism and discrimination. These incidents are unlikely to be reported to the police. Their prevalence is perhaps of most concern here– this ‘low-level’ private sphere racist language and interaction is possibly the most insidious form of racism, and the hardest to combat.32

A common thread among many Poles was their contention that they were unfairly treated by coverage in some newspapers. The Daily Mail was the newspaper most often referenced as anti-Polish. Polish respondents contended that Poles and other A8 migrants were unfairly characterized in the newspaper. They believed that the tabloid over-reports incidents of Polish migrant crime and public drunkenness and publish articles that contend that the Poles placed too much stress on social services and education. The situation reached a boiling point on 5 August 2008 when the Federation for Poles in Great Britain attempted to bring the Daily Mail to the Press Complaints Commission. On the same day, Witkor Moszczynski, a Press Spokesman for the Federation of Poles in Great Britain wrote to the Daily Mail to explain the organization’s position. The Daily Mail published the letter as well as an argument of why it was incorrect. The Federation argued: Poles have felt humiliated by the coverage and are vulnerable to numerous acts of overt hostility and even violence which they have experienced from a vociferous minority of UK citizens. There have been hundreds of cases of hate crime against Poles in this country recorded in the last 2 years, some leading to death or permanent injury, and we

32

Leila Dawney, “Racialisation of central and east European migrants in Herefordshire,” Sussex Centre for Migration Research Working Paper no.53 (December 2008), 8.

The Long-Term Future of Polish Migrants in Ireland and Britain would not want these incidents to be encouraged by potentially inflammatory newspaper stories or headlines.33

The Chairman of the Federation went further to argue “Poles seem to be unable to please the Daily Mail, whatever they do. On one day you get a headline Poles Flood into England, implying the country is drowning in immigrants, and the next day you get Poles Desert England, as if we are abandoning them.”34 The Daily Mail countered that they merely report the information that was important to their readers and they do not target any particular group. They went further to argue that the information that they presented was factual and part of the national discussion. While the newspaper argued they simply report the news, often the bias could be seen in how the information is presented. One common strategy was the use of aggressive or sensationalized headlines which shaped the reader’s opinion even before they read the article. An example of the use of such a headline can be seen from the Daily Mail on 26 May 2011. While reporting on the issue of an increasing number of Poles living in Great Britain, the Daily Mail chose to use the headline: “Polish Population in the UK soars from 75 000 to more than HALF A MILLION in eight years”.35 The emphasis is in the original. While the Daily Mail may be the tabloid that incurred the majority of the Poles wrath, as Fomina and Frelak argue, it was not alone in its sensationalized coverage of Poles.36 One needs look no further than an article written by David Wooding on 3 August 2007 and published in another tabloid, The Sun. Once again the headline was meant to paint the Polish community in a negative light, here screaming “Migrants out of Control”. It then leads with an opening of “number of migrants since Poland and seven other East European countries joined the EU two years ago has hit 662,000—20 TIMES offfijicial predictions. And the problems are set to get WORSE with 140,000 expected to come here when Romania and Bulgaria join the EU next year.”37 Again the emphasis is in the original. The article goes on to use phrases such as “[t]he NHS will be stretched still further as more migrants block beds because they are ineligible for care and benefijits once 33

Polish Express, accessed on 20 May, 2012, http://polishexpress.polacy.co.uk/art,daily_mail_ antipolish_articles,2147.html.

34

Ibid.

35

The Daily Mail, accessed on 15 May, 2012, http://www.dailymail.co.uk/news/article-1391151/ Polish-population-UK-soars-75-000-HALF-A-MILLION-8-years.html.

36

Joanna Fomina and Justyna Frelak, Next Stopski London: public perceptions of labour migration within the EU: the case of Polish labour migrants in the British press (Warsaw: Institute of Public Affairs, 2008), 46.

37

The Sun, accessed on 12 May, 2012, http://www.thesun.co.uk/sol/homepage/news/57776/ Migrants-out-of-control.html.

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they leave” and “even more pressure will be piled on housing stocks”.38 Most troubling is the inclusion of the statement “[a]ggressive begging is likely to be increased by those migrants who cannot fijind jobs—while those poorly paid workers who can, pull down wage levels”.39 These unnecessarily inflammatory newspaper reports in addition to the low-level discrimination in the workforce and elsewhere created an unwelcoming environment for Polish migrants. Violence such as what occurred in Northern Ireland moved these feelings into a new and frightening place. What is most troubling is that this negative media reporting is only going to get worse when the restrictions on Romanians and Bulgarians end in 2014. The Daily Mail was already running articles predicting a social calamity in January, 2013 claiming in a headline that thousands “of Bulgarians and Romanians ‘plan to flood UK in 2014’ as employment restrictions relax”40 while the Sun went further to predict 350 000 Romanians and Bulgarians were preparing to move en mass at the end of the restrictions. 41 This sort of rhetoric permeates aspects of the British media which then becomes gospel for these outlets readership. This occurs despite expert evidence to the contrary such as the 2013 National Institute of Economic and Social Research study that found that these predictions of mass movement is not based on evidence and the impact of these future migrants would be minimal as they are much more likely to pick other EU countries to migrate to. 42 While much of the attention in the British press has now shifted to Romanians and Bulgarians, the Poles continue to face the ire of some in the media as well as members of the British public. No example better exemplifijies this than a January 2013 heated exchange between a prominent British Historian and an audience member from the English town of Boston on the BBC program Question Time. During the program the historian, Mary Beard argued that the European migrant problem in Boston was overblown leading the audience member to argue that she felt that the town felt “like a foreign country” to much applause. 43 Based on the audience reaction and that of some of the media, the Poles and other 38

Ibid.

39

Ibid.

40

The Daily Mail accessed 15 April, 2013, http://www.dailymail.co.uk/news/article-2268952/ Thousands-Bulgarians-Romanians-plan-flood-UK-2014-employment-restrictions-relax. html.

41

The Sun, accessed on 16 April, 2013, http://www.thesun.co.uk/sol/homepage/news/ politics/4748536/350000-Romanians-and-Bulgarians-heading-to-UK-as-EU-lift-restrictions. html.

42 43

http://www.niesr.ac.uk/sites/default/files/EU2%20NIESR%20press%20release.pdf. The Daily Mail, accessed on 20 February, 2013, http://www.dailymail.co.uk/news/article-2264799/Our-towns-like-foreign-country-Locals-cope-immigrants-says-mother-TVclash-academic.html.

The Long-Term Future of Polish Migrants in Ireland and Britain

intra-EU migrants must continue to be concerned about how welcome they are in many parts of Britain. 3.

Exploitation

While many Polish migrants faced discrimination and the potential for violence or intimidation, few faced the conditions of those who were recruited to come to Britain to work through employment agencies. The migrants faced difffijicult working conditions and issues surrounding housing and social services. They were forced to rely on local agencies, unions and the Catholic Church to advocate on their behalf to ensure that their rights were protected and labour laws were respected. Those who worked to protect the rights of these migrants cite a litany of complaints concerning the workers’ treatment. The town of Llanelli is an example of a community struggling to protect the Polish community from exploitation from a recruiting agency. The vast majority of the two to eight thousand Poles who moved to Llanelli (again proper estimates are difffijicult if not impossible) worked in the local meat packing plant and were recruited by the CSA employment agency. CSA was responsible for arranging the travel of the prospective migrant, as well as arranging their contract, providing accommodation and handling up-front costs. However, CSA was accused by the workers and local Polish support agencies, most notably the grass-roots PolishWelsh Mutual Association, of numerous gross violations of their rights. Thompson et al. found when speaking to the workers that: the fijirst thing that they were required to do on arrival was to sign a new contract with the agency even though they had signed an initial contract in Poland. Contract details were invariably diffferent, particularly in terms of promised contracted hours, overtime payments and ‘hidden costs’ for workers registration, accommodation and travel to work. 44

The accommodations that CSA provided was also questionable and Carl Lucas, leader of the Llanelli Town Council and local labour organizer accused the agency of ‘hot bedding’ the workers where they sleep in shifts in the same room while paying for private accommodations. 45 The Polish-Welsh Mutual Association (PWMA) was forced to aid Polish workers who were on ‘zero-hour contracts’ that did not guarantee minimum hours of employment. Even if they were not working they still owed CSA for their accommodations and other expenses. With no money and constant bills many workers were found to not have eaten in days and some were found in 44

Thompson et al., Llaneski, 23.

45

Interview with Carl Lucas, Leader of Llanelli Town Council, 7 November, 2011, Llanelli.

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the streets of Llanelli destitute and despondent. 46 The PWMA fijinally forced CSA to stop selling the Polish migrants their food and has tried to raise awareness of the conditions they were living under. Both the local council and PWMA expressed frustration that there appeared to be little incentive for authorities to crack down on CSA and with a seemingly never-ending source of labour, little motivation for CSA to change its practices. As these migrants had little to no language skills and had limited employment opportunities in Llanelli outside of the packaging plant there was little opportunity to change jobs and remain in the region. If migrants decided to leave CSA’s accommodations they often saw the number of hours they were called to work decreased. As they were dependent on CSA for their livelihood in Wales, the migrants often chose not to complain or raise awareness of their conditions in order to avoid retribution. 47 Only rarely did conditions get to a point where a migrant was desperate enough to speak to the church or the PWMA. Their best hope was that they stay quiet, work hard and were eventually hired by the plant directly so they could have stable hours and be freed from the clutches of CSA. Due to the work of local labour organizations and the PWMA in many ways Llanelli is a model as to how to monitor and alter the behaviour of an agency that use foreign workers. It is clear that there were many other cases throughout Britain that also require attention. The British Equality and Human Rights Commission in 2010 published its fijindings on abuses of employees hired by recruiting agencies. It noted that the workers “reported physical and verbal abuse and a lack of proper health and safety protection, with the treatment of pregnant workers a particular concern. Many workers had little knowledge of their rights and feared raising concerns would lead to dismissal”. 48 The report provided disturbing specifijics such that included sexual harassment, workers being denied breaks to use the toilet, taunts and other forms of abuse. Beyond the shocking fijindings, the most telling aspect of the report was the fact that over 30% of the entire British workforce in the meat and poultry industry was employed through these agencies, of which 70% were migrants, the majority of whom were Poles. 49  

46

Interview with Jeff Hopkins, Chairman of the Polish-Welsh Mutual Association and Halina

47

Interview with Sister Marcella Logue, Our Lady Queen of Peace Parish, 7 November 2011,

Ashley, Secretary of the PWMA, 7 November 2011, Llanelli. Llanelli. 48

Mistreatment of migrants, accessed on 17 November, 2011, http://www.equalityhumanrights.com/news/2010/march/inquiry-uncovers-mistreatment-and-exploitation-of-migrant-and-agency-workers/.

49

The Guardian, accessed on 16 November, 2011, http://www.guardian.co.uk/society/2010/ mar/13/life-meat-industry-report-ehrc.

The Long-Term Future of Polish Migrants in Ireland and Britain

4.

Chilly Climate

Tied to all the issues outlined above there appeared to be a growing sense in Britain and Ireland that the Poles (as well as other migrants, both EU and non-EU) were simply not welcome. In Britain the loudest voice against their presence were far right wing political movements such as the extremist National Front and the British National Party (BNP). The BNP used the influx of Poles into Britain as a rallying cry against both immigration and the European Union as a whole. They often cited both Llanelli and London as examples of places where Poles came to take away British jobs. The reality that it has always proven difffijicult if not impossible to convince British citizens to take the difffijicult, tiring, messy jobs that the Poles were more than willing to take did not seem to either occur to them or neuter their zeal in arguing the point. While the BNP has not, as of 2012, gained a foothold electorally in Britain at the national level, including being soundly defeated in all areas with large Polish populations including Llanelli, their arguments concerning immigration seemed to be starting to take hold with the public. A study in 2011 found that 7 out of 10 people surveyed favoured cuts to immigration and in the European Parliament election of 2009 the BNP was able to secure two seats. While the majority of those people preferred that the government focus on illegal migration and asylum seekers, a third wanted cuts in all forms of legal migration. There was also considerable support for reducing immigration of lower skilled employees and extended family members, both of which are mostly comprised of A8 citizens that the government currently has no control over.50 When pressed further the rhetoric of the BNP starts to shine through. For example, a 2011 report by the Migration Observatory found that of those who oppose migration in Britain believed strongly that migrants increase levels of crime and take away local jobs.51 While the government could not prevent Poles from entering Britain to look for work, it could further the chilly climate by using them as an example to justify restrictions on other migrants. While the restrictions across the EU for A8 nationals expired early in 2011, there remained restrictions of the A2 nationals from Bulgaria and Romania. While Britain and Ireland were two of the least restrictive countries in regard to the A8 migrants, both were very restrictive of A2 migrants compared to other EU states.52 In justifying these restrictions they often cited the 50

The Migration Observatory, “Thinking Behind the Numbers: Understanding Public Opinion on Immigration in Britain,” accessed on 19 November, 2011, http://www.migrationobservatory.ox.ac.uk/understanding-uk-public-opinion/executive-summary.

51

Ibid.

52

Many EU member states have restrictions on Romanians but not Bulgarians. The concern in these states is the potential of a mass movement of Roma.

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influx of Central and East Europeans in 2004 and the need to protect British jobs. In November of 2011, the Migration Advisory Committee (MAC) an independent panel that provides recommendations to the government on issues surround migration released a report on the potential of dropping restrictions on A2 migrants. The report argued strongly for keeping the restrictions in place with much of the argument based on Britain’s experience with the A8. For example, the MAC report states that the “A8 experience suggests that the impact of lifting labour market restrictions on A2 nationals might be disproportionately concentrated at the bottom end of the skill (and therefore wage) distribution. Its impact may also be concentrated in particular occupations and sectors”.53 With the British government’s stated goal in 2012 of a net decrease in population through restrictions on migration, there is little doubt that the MAC’s recommendations will be accepted. It would have been difffijicult for the Polish community not to feel more than somewhat unappreciated when those who advised the government used their presence as reason for restricting the rights of others. If the Poles had hoped for a better relationship with the opposition Labour Party, those hopes were dashed in 2012 when it announced that it would campaign in the next British election on a platform that would make it difffijicult for companies to hire non-British EU citizens and would prevent British citizens from being ‘locked out’ of employment sectors currently occupied mostly by Poles and other East Europeans.54 It appears in 2013 that the political chilly climate facing the Poles and other intra-EU migrants crosses all segments of the political spectrum and will be one of the few items of agreement between the main political parties during the next election campaign. Concluding Thoughts—Why the Poles Matter This chapter has provided an initial examination of the issues surrounding the Polish community in the United Kingdom and to a lesser degree Ireland. It has illustrated that the Poles, as the face of all A8 migration, represent the largest movement of economic migrants around Europe in recent memory. This movement was possible due to the EU’s evolving understanding of mobility rights and the expansion of the idea of European citizenship. While many Poles have benefijitted from the ability to move westward, the road has been rocky and continues to present challenges. From the very beginning the Poles and other A8 nationals were held to a diffferent standard than citizens from other EU states, they were limited in where they could 53

Migration Advisory Committee, Review of the Transitional Restrictions on Access of Bulgarian

54

The Gaurdian, accessed on 30 May, 2012, http://www.guardian.co.uk/uk/2012/jun/21/

and Romanian Nationals to the UK Labour Market. (November 2011), 74. change-rules-migrant-workers-miliband

The Long-Term Future of Polish Migrants in Ireland and Britain

go and what they could do once they got there. While mobility in the EU was thought to ensure that the best skilled workers could fijind the right jobs, many Poles have had to accept lesser jobs in exchange for an opportunity to earn more money then what they could earn in Poland. While there was an economic benefijit this deskilling prevented them from using their full capabilities to further their careers. Less-skilled Poles became targets for exploitation from recruitment agencies that saw them as a cheap, disposal labour force that could provide the agency profijit while denying the workers’ rights. They became the scapegoat of a population that was growing more insular, more protectionist and more concerned for their economic well-being. This led to discrimination and in some places violence. Based on all of these factors and added to weakening economies it is easy to conclude, at this writing, that the great experiment of Polish migration to Britain and Ireland will come to an end and the Poles will go home. The reality is that Poles are not going home. A large number of Poles have no intention of leaving Ireland or Britain and therefore they matter both in the immediate and long term and the issues surrounding them must be addressed by the local, national and potentially EU level of government. There are many Poles, most with young families, who plan on remaining in Britain or Ireland. Despite brash predictions by the Daily Mail, the Sun and other media sources that the Poles fled Britain and Ireland after 2008 the reality is that for many their lives were no longer in Poland. They were able to access Polish media sources, fly back to Poland to visit relatives and use Skype to communicate so there was little reason to return. Once children are enrolled in school the likelihood of a return to Poland dropped signifijicantly. For others there was little pull to return to Poland as they found the lifestyle and culture of Britain or Ireland more appealing than the conservative, bureaucratic style of their homeland. Even if some choose to return to Poland the networks between Poland and Britain/Ireland are so sophisticated now that they will soon be replaced by someone else. While the specifijic migrants may change, the community will remain. As the population is permanent and there are no restrictions on their movement it is important for their issues to be addressed. In some ways the Polish community represents one of the most important issues for the British government in particular. As mentioned above, the number of non-EU immigrants that were allowed to come to Britain in 2012 was slashed. Now the only people who qualifijied for entry were basically highly-educated native English speakers who already had employment secured. There was very little risk that these immigrants would fail and require social assistance and special programs to ensure their long term success. This is not the case for EU migrants.55 They can come, unannounced, unprepared, and ill-equipped and therefore potentially 55

Interview with Vanna Aldin, Head of Economics, Migration Advisory Committee Secretariat, 25 October 2011, London.

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fail and then require the aid of the state. It would therefore behoove the state to ensure that the migrants with the highest chance of failure have the tools available to them to succeed. Neither Ireland nor Britain make any distinction in their integration programs for the A8 nationals, instead leaving the job to local NGO’s, churches, communities or Polish language media outlets. This raises a fijinal question that falls outside of the scope of this chapter but will need to be addressed nevertheless: what responsibility does the EU have in protecting the intra-EU migrants? It was the EU bureaucracy, along with leaders from the member states, that expanded the nature of free movement. It is European citizenship in which many migrants view as the guarantor of their rights. There is EU law that should fijilter down into national law to prevent many of the problems that have been outlined above. If the EU helped create the conditions that allowed for this migration, an argument could be made that it as an administrative level bears some responsibility in assuring that the migrants are protected.56 While much legislation exists, there is no enforcement or oversight. In fact the EU could go farther and create laws that speak specifijically to the enforcement of EU citizenship rights including legislation better addressing grievances and laws providing mechanisms that can quickly enact penalties on those who violate these rights. Unfortunately the EU faces the same obstacles in this area as it has in other areas of social cohesion, such as national minority rights. While speaking on minority protection, Toggenburg could just as easily have been discussing intra-EU protection when he reminds us that: The lack of legislative competence at the EU level is not an eternal disease per se but just the legal result of a political lacuna—namely the lack of political consensus to transfer such competence to the EU level. Neither offfers the subsidiarity principle (often invoked in this context) a legal argument against EU involvement in diversity matters as it just regulates the execution of competencies and therefore leaves the location of such competencies to the perspective treaty provisions.57

How the EU could become engaged in matters long thought of as the domain of the state is a discussion for elsewhere but it is clear that more must be done at all levels of government on these issues. The EU may face challenges in protecting these mi56

Michael Johns, “A Problem by Their Own Hands: Intra-EU Migration and its Implications for Europe,” in The EU and Federalism ed. Finn Laursen (Surrey: Ashgate Publishing, 2011), 245261.

57

Gabriel N. Toggenburg, (2004) “Minority Protection in a Supranational Context: Limits and Opportunities,” in Minority Protection and the Enlarged European Union: The Way Forward ed. Gabriel N. Toggenburg (Budapest: Open Society Institute, 2004), 10.

The Long-Term Future of Polish Migrants in Ireland and Britain

grants, but they are EU citizens and therefore must have their rights ensured somehow. In 2013 the Polish community in Britain and Ireland found itself at crossroads as it faced both threats and opportunities. The same can be said for the European Union and its member states. As the EU continues to struggle economically and uncertainty prevails throughout society it is possible that the threats against the Poles and the other A8 and eventually A2 migrants will increase. They could be targeted for intimidation and the exploitation of lower skilled workers could increase as jobs become increasingly scarce while demand for work increases. The Polish community has shown however that it is comprised of hard working people who are willing to do what is necessary to build a better life for themselves and their families. They appear to be determined to continue to establish a large, semi-permanent presence in their adopted countries. It is time for all concerned to accept that the Polish community is not going to disappear anytime soon so it will be necessary to address the issues outlined above, sooner rather than later.

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5.

Politics of Free Movement in the European Union: Recognition and Transfer of Professional Qualifications Micheline van Riemsdijk

Recognition of foreign qualifijications remains an important tool to insure high standards and quality in healthcare delivery, but also serves sometimes to control inflows of foreign-trained workers.1

Introduction The international mobility of skilled workers has increased since the mid-1990s in response to international labor market needs.2 The demand for skilled workers is expected to increase in high-income states due to falling fertility rates and declining working-age populations, which is especially pressing in Europe. Eurostat, the statistical offfijice of the European Union, predicts that the population of the EU-27 will age considerably between 2010 and 2060 due to low fertility rates and increases in longevity. Eurostat projects that the old age dependency ratio, which measures the number of people 65 years and older divided by the working-age population aged 15 to 64, will increase from 26% in 2010 to 53% in 2060.3 These demographic changes have far-reaching implications for the need for health professionals and the organization of healthcare systems. 4 1

OECD. International Migration Outlook. (Paris: OECD, 2007), 6.

2

In this chapter, skilled workers are defined as workers who have completed at least “a tertiary education or the equivalent in experience.” J. Salt, “Highly-Skilled International Migrants, Careers and Internal Labour Markets,” Geoforum 19.4 (1988), 87.

3

Eurostat. Population Projections 2010-2060. EU27 Population is Expected to Peak by around 2040. (Luxembourg: Eurostat, 2011).

4

C.-A. Dubois, M. McKee and E. Nolte, eds. Human Resources for Health in Europe, European Observatory on Health Systems and Policies Series (Berkshire, England: Open University Press), 2006.

Willem Maas (ed.), Democratic Citizenship and the Free Movement of People Copyright 2013 Koninklijke Brill NV. ISBN 978-90-04-24327-9 pp. 115-141

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High-income states are increasingly concerned about shortages of health professionals, and the recruitment and retention of these workers is currently high on policy agendas in EU member states.5 The EU is expecting a shortfall of one million health professionals by 2020 due to aging populations, rising expectations about quality and standards for care, and new healthcare technologies.6,7 The projected shortage will increase demand for foreign-trained nurses, but the recruitment of these workers from predominantly low- and middle-income to high-income states raises important ethical questions.8 First, these nurses often come from sending states with a low nurse-to-patient ratio, and the out-migration of healthcare workers may contribute to “brain drain.” 9 Second, foreign-born nurses are more likely to experience exploitation and abuse in the workplace.10 Third, foreign-born nurses are often placed in positions below their skill level, which may contribute to deskilling.11,12 These issues have raised discussions how to best “manage” inter5

A. Büscher, B. Sivertsen and J. White, Nurses and Midwives: A Force for Health (Copenhagen:

6

M. Wismar, C.B. Maier, I.A. Glinos, G. Dussault and J. Figueras, “Health Professional Mobility

World Health Organization, 2009). and Health Systems: Evidence from 17 European Countries” (Copenhagen: World Health Organization, 2011). 7 8

OECD. International Migration Outlook. (Paris: OECD, 2007). International Council of Nurses, Position Statement: Ethical Nurse Recruitment, (Geneva: International Council of Nurses, 2001), http://www.icn.ch/images/stories/documents/publications/position_statements/C03_Ethical_Nurse_Recruitment.pdf; J. Buchan, “Migration of Health Workers in Europe: Policy Problem or Policy Solution?,” Health Policy and European Union Enlargement, eds. M. McKee, L. MacLehose and E. Nolte (Berkshire: Open University Press: 2006); H. Allan, “The Rhetoric of Caring and the Recruitment of Overseas Nurses: The Social Production of a Care Gap,” Journal of Clinical Nursing 16.12 (2007); P. Raghuram, “Caring About ‘Brain Drain’ Migration in a Postcolonial World,” Geoforum 40 (2009); World Health Organization. The WHO Global Code of Practice on the International Recruitment of Health Personnel. (Geneva: Switzerland, 2010).

9

For a critical discussion of the ‘brain drain’ literature, see P. Raghuram. “Caring About ‘Brain Drain’ Migration in a Postcolonial World.” Geoforum 40 (2009): 25-33.

10

J.A. Larsen. “Embodiment of Discrimination and Overseas Nurses’ Career Progression,” Journal of Clinical Nursing (2007): 2187–95; P. Smith, and M. Mackintosh. “Profession, Market and Class: Nurse Migration and the Remaking of Division and Disadvantage.” Journal of Clinical Nursing 16, no. 12 (2007): 2213–20.

11

T. O’Brien. “Overseas Nurses in the National Health Service: A Process of Deskilling.” Journal of Clinical Nursing 16, no. 12 (2007): 2229-36.

12

M. van Riemsdijk. “Everyday geopolitics and the valuation of labour: international migration and socio-political hierarchies of skill.” Journal of Ethnic and Migration Studies 39 (3) (2013): 373-390.

Politics of Free Movement in the EU: Recognition and Transfer of Professional Qualifications

national nurse migration.13 Several organizations have developed ethical codes of conduct for the recruitment of nurses. The National Health Service in the UK was the fijirst organization that developed guidelines in 1999, followed by, among others, a Code of Ethics for Nurses by the International Council of Nurses in 2001 (revised in 2007), and the adoption of the World Health Organization Global Code of Practice on International Recruitment of Health Personnel in 2010. The free movement of workers is a key right of EU citizenship. The Treaty of Rome conferred free movement rights to all European Community citizens, which included the right to move freely within Community territory and to work in other member states.14 Since the creation of the Treaty of Rome, several EU treaties have promoted the free movement of workers as a civil right that applies to all EU citizens.15 The European Commission created policies and regulations to facilitate the free movement of persons, goods, services and capital, but obstacles to the free movement of professionals still remain. These barriers are created by national diffferences in education, training, and qualifijications of health professionals that make it diffijicult to compare qualifijications across member states. For instance, nursing education varies in terms of requirements, curriculum structures, and program length, and educational systems range from baccalaureate level and secondary school level to master and Ph.D. degrees.16 In an efffort to compare these educational systems and qualifijications, the European Commission has developed common educational standards for EU member states. These initiatives seek to promote the free movement of health professionals without discrimination on the grounds of nationality, ensuring equal treatment for all EU citizens. However, as I show in this chapter, the recognition and transfer of nursing qualifijications remains problematic in the EU. This chapter investigates the politics of the recognition and transfer of professional qualifijications among EU member states. In particular, the chapter analyzes the influence of various stakeholders in the regulations for the recognition of nursing qualifijications in the EU when ten new member states joined in 2004. The authorities of the accession states had to negotiate the conditions for entry into the EU, including the harmonization of their educational systems and professional training programs with EU standards. This chapter studies the political strategies of the European Commission, the national health authorities, an international nursing organization, and national nursing unions to better understand stakeholder in13

J. Buchan, M. Kingma, and F.M. Lorenzo. International Migration of Nurses: Trends and Policy

14

W. Maas. Creating European Citizens (Lanham, Maryland: Rowman & Littlefield, 2007).

Implications. (The Global Nursing Review Initiative, 2005). 15

Wismar, Maier, Glinos, Dussault and Figueras (2011).

16

M.R. Faller and M. Hua, International Nurse Market: Supply Trends and Market Influences (San Diego: AMN Healthcare, 2007).

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volvement in the policymaking process. Such an analysis provides insights into the (unequal) power relations between stakeholders, their political strategies, and the “messiness” of migration policymaking.17 To better understand the interactions and strategies of stakeholders, this chapter studies migration policymaking at various scales: There can be tensions between bodies concerned only with trade liberalization for economic benefijit and professional organizations that are focused also on standards and safety. The ways in which these tensions are played out through political processes at the supranational level is underresearched.18

This chapter investigates these tensions at the supranational, national and regional scale to gain a deeper understanding of the recognition process for general care nurses in the EU. I fijirst investigate key historical developments in the recognition of professional qualifijications, analyzing factors that gave rise to these initiatives, and the obstacles that still remain.19 This section is followed by a case study of the qualifijications and training of nurses in Poland and the singling out of Polish nurses in the 2005 regulations for mutual recognition. When the Polish authorities were negotiating the terms for the Accession Treaty, the European Commission ruled that most Polish nurses and midwives did not meet the minimum training requirements.20 The Main Chamber of Nurses and Midwives in Poland appealed this decision, ar17

C. Boswell and A. Geddes, “Migration and Mobility in the European Union,” (London: Pal-

18

J. Allsop, I.L. Bourgeault, J. Evetts, T. Le Bianic, K. Jones and S. Wrede, “Encountering Globali-

19

The recognition of qualifications of third-country nationals (i.e. migrants who are not EU

grave Macmillan, 2011), 43-44. zation: Professional Groups in an International Context,” Current Sociology 57.4 (2009), 501. citizens) differs from EU citizens and is outside the scope of this study. For third-country nationals, a designated authorization agency in the host society evaluates the competencies of each applicant on a case-by-case basis. The authorization body can require compensation measures such as a practice period under supervision or the passing of an aptitude test before an applicant is allowed to practice. 20

The European Commission also ruled that the training of Polish midwives did not meet the minimum requirements. This chapter focuses only on the qualifications of Polish nurses for three reasons. First, the nursing workforce in Europe is considerably larger than the number of midwives. Second, the qualifications of nurses and midwives are regulated under different directives. The singular focus on nurses allows me to explain in-depth the changes in regulations for the mutual recognition of their professional qualifications. Third, media accounts and politicians addressed only the migration of Polish nurses, who were considered a threat to labor markets in western Europe.

Politics of Free Movement in the EU: Recognition and Transfer of Professional Qualifications

guing that the terms discriminated on the basis of nationality and obstructed the free movement of Polish nurses. I discuss the events that informed the European Commission’s decision on Polish nursing qualifijications, the actors that were involved in the decision-making process, and attempts of Polish nursing organizations to contest this decision. The case study is placed in the larger context of the politics of EU enlargement and the Commission’s attempts to create a single European market. The common European market was fijirst established in article 3c in the 1957 Treaty of Rome that intended to promote political and economic integration in Europe. The treaty aimed to establish a common European market that promoted free movement and settlement, aided by the recognition of professional experience and automatic recognition of professional qualifijications.21 One of the founding principles was the right of citizens to reside and work freely in other member states.22 I argue that the negotiations over the valuation of nursing degrees are indicative of a democratic defijicit that omitted key stakeholders from the negotiation process. In addition, the singling out of Polish nurses may be informed by a fear of social dumping by the Standing Committee of Nurses of the EU and the “old” EU member states, as I discuss in more depth later. The case study data were gathered from interviews with leaders in the Main Chamber of Nurses and Midwives in Warsaw and Katowice, Poland in 2006, and representatives in the European Commission in Brussels in 2009. These qualitative data were supplemented with archival searches of Polish nursing magazines in the National Library in Warsaw and legal documents pertaining to appeals to the European Commission, the European Parliament, and the European Ombudsman. These empirical data provide insights into the involvement and exclusion of key stakeholders in the valuation of professional qualifijications. The following segment discusses the increasing influence of the European Commission in the governance of healthcare services and the regulation of health professions, which has far-reaching consequences for general nurses in the EU. Thereafter I discuss key historical developments in the mutual recognition of professional qualifijications of nurses in EU member states, followed by a discussion of the singling out of Polish nurses in Directive 2005/36/EC that currently defijines the recognition of qualifijications of nurses. I discuss the legal and informal protests against the new directives by Polish nursing unions, and the involvement of stakeholders in the valuation of nursing qualifijications in the EU. The concluding section discusses 21

B. Blitz, “Professional Mobility and the Mutual Recognition of Qualifications in the European Union: Two Institutional Approaches,” Comparative Education Review 43 (1999), 311-331.

22

C. Shah and M. Long, Global Labour Mobility and Mutual Recognition of Skills and Qualifications: European Union and Australia/ New Zealand Perspectives. (Victoria, New Zealand: Centre for the economics of education and training, 2004).

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recent developments in the recognition of professional qualifijications, including plans for a European Professional Card. European Commission Involvement in Healthcare Services The European Commission has increasingly become involved in healthcare provision in the EU member states. This involvement is part of a larger Europeanization of the delivery of public services.23 The European Commission has also increased its regulatory powers in the valuation of professional qualifijications and has “scaled up” the regulation of professional services to the supranational scale. The European Commission increasingly governs healthcare services in Europe despite stipulations in the EC Treaty that explicitly state that member states are in charge of the organization and fijinancing of healthcare.24 Article 152 of the EC Treaty establishes that health is an area of member state competence, implicitly referring to the principle of subsidiarity that ensures that policies are implemented at the lowest level of competent authority.25 According to this principle, the EU should only act if it can be more efffective than individual member states to achieve a particular objective.26 However, the goals of the principle of subsidiarity and the single European market often collide, and EU law increasingly governs the fijinancing and provision of healthcare.27 This scaling up of healthcare governance to the EU is driven by the globalization of trade and services.28 The European Commission also regulates the valuation of professional qualifijications. Since the 1960s the Commission has implemented rules on the mutual 23 24

Boswell and Geddes (2011). Treaty of Amsterdam Amending Treaty of the European Union, article 129 paragraph 5. ”Community action in the field of public health shall fully respect the responsibilities of the Member States for the organisation and delivery of health services and medical care.” http://eur-lex.europa.eu/en/treaties/dat/11997D/htm/11997D.html#0001010001

25

E. Mossialos, G. Permanand, B. Rita and T. Hervey, “Health Systems Governance in Europe. The Role of European Union Law and Policy,” Health Systems Governance in Europe. The Role of European Union Law and Policy, eds. E. Mossialos, G. Permanand, B. Rita and T. Hervey (Cambridge: Cambridge University Press, 2010).

26

R. Baeten and Y. Jorens, “The Impact of EU Law and Policy,” Health Policy and European Union Enlargement, eds. M. McKee, L. MacLehose and E. Nolte (Berkshire, England: Open University Press, 2006).

27 28

Mossialos, Permanand, Rita and Hervey (2010). C.-A. Dubois, M. McKee and E. Nolte, “Analysing Trends, Opportunities and Challenges,” Human Resources for Health in Europe, eds. C.-A. Dubois, M. McKee and E. Nolte (Berkshire, England: Open University Press, 2006).

Politics of Free Movement in the EU: Recognition and Transfer of Professional Qualifications

recognition of diplomas and professional qualifijications to facilitate the free movement of professionals. Mutuality is “the process by which decisions reached in one Member State are honoured in another, unless there are clear grounds for doubt.”29 The mutual recognition of professional qualifijications ensures that qualifijications acquired in one EU member state are recognized in another. These regulations enable EU citizens to carry their professional qualifijications across national borders. However, mutual recognition became more complex when ten new member states (EU-10) with difffering education systems were slated to join the EU in 2004. The accession of the EU-10 rearranged the power dynamics in the EU. The new member states added 74 million people, increasing the population of the EU by approximately one-fijifth from 382 million to 456 million.30 Poland added the largest population (38.2 million) and land area (312,685 square kilometers) of the new member states.31 At the time of accession, Poland had high levels of unemployment and much lower wages than the EU-15. It was also in close geographic proximity to western Europe. These factors contributed to a high propensity for out-migration to western Europe, and most of the states in the EU-15 were concerned that Polish nurses would “steal” jobs and undercut wages in their territories.32,33 The accession increased the number of general care nurses in the EU from 3 million to 4 million, and approximately 250,000 of these nurses were Polish citizens.34 All EU-15 states except the UK, Ireland and Sweden implemented transitional regulations to protect their labor markets from social dumping. They were most concerned about Poland, which had the largest population of the new accession states. The eight accession states in central and eastern Europe (EU-8), namely the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Poland, Slovakia and Slovenia, had to make far-reaching legal adjustments and reforms in their public sector to comply with European Community legislation. This transition was codifijied in an 29

T. Keighley. European Union Standards for Nursing and Midwifery: Information for Accession Countries (Copenhagen, Denmark: World Health Organization, 2009), 3.

30

Eurostat. Eurostat News Release. (Luxemburg: Eurostat Press Office, 2004). http://epp.eurostat.ec.europa.eu/cache/ITY_PUBLIC/3-31082004-BP/EN/3-31082004-BP-EN.PDF. Accessed 11/14/2011.

31

K. Kuszewski and C. Gericke. Health Systems in Transition. Poland. (Copenhagen: World

32

R. Pijpers, “‘Help! The Poles Are Coming!’ Narrating a Contemporary Moral Panic,” Geograf-

Health Organization, European Observatory on Health Systems and Policies, 2005). iska Annaler 88.1 (2006). 33

M. van Riemsdijk, “Variegated Privileges of Whiteness: Lived Experiences of Polish Nurses in Norway,” Social and Cultural Geography 11.2 (2010).

34

T. Keighley, “Political Leadership in Europe - an Assessment of the Impact of the 2004 EU Accession Round on Nursing in Europe,” Journal of Nursing Management 12 (2004).

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Accession Treaty for each prospective member state. These states had to introduce the entire acquis communautaire upon accession, and European law would take precedence over national laws.35,36 The alignment with EU laws and regulations also concerned medical and nursing training, which was of low quality in states that inherited the communist healthcare model.37 Upon accession, the European Commission would regulate the qualifijications and training of health professionals in these states. I argue that the negotiations over Poland’s Accession Treaty omitted key stakeholders and that the rushed decision-making negatively afffected Polish nurses. In particular, the section on the free movement of persons was negotiated quickly, and once signed, the majority of Polish nurses were not allowed to practice as general nurses in EU member states. I discuss the factors that contributed to the singling out of Polish nurses in the mutual recognition of professional qualifijications in the EU, analyzing the stakeholders that were involved and those that were omitted from the negotiations over the terms of Poland’s accession treaty. Mutual Recognition of Foreign Professional Qualifications in EU Member States Globalization and internationalization of education have made it necessary to establish common educational standards for nurses, and to harmonize nursing education across EU borders.38 In order to achieve these goals, the European Commission has implemented education, registration and licensing requirements for health professionals, including nurses. These legislative initiatives progressively increased the authority of the Commission over healthcare delivery, including the international migration of health professionals. The Commission aims to establish directives that facilitate the free movement of nurses within the EU while protecting patient safety and providing a high quality of healthcare services.39 Despite these effforts, foreign-trained nurses still face legal and political obstacles. In this section I discuss key historical developments in the mutual recognition of professional qualifijications of general care nurses, investigating the circumstances that have given rise to the directives and the constraints of these initiatives. I trace the development 35

L. MacLehose and M. McKee, “Looking Forward, Looking Back,” Eurohealth 8.4 (2002).

36

The acquis communautaire is the cumulative body of European community laws, including all treaties, regulations and directives passed by European institutions.

37

M. McKee, L. MacLehose and E. Nolte, “Human Resources for Health in Europe,” Health Policy and European Union Enlargement (Berkshire, England: Open University Press., 2004).

38

R. Davies, “The Bologna Process: The Quiet Revolution in Nursing Higher Education,” Nurse Education Today 28 (2008).

39

OECD (2007).

Politics of Free Movement in the EU: Recognition and Transfer of Professional Qualifications

from transitional to sectoral and general directives, followed by a consolidation into Directive 2005/36/EC on the recognition of professional qualifijications. This historical overview illustrates the increasing involvement of the European Commission in the valuation of professional qualifijications. Each change awarded the European Commission more decision-making power in the standards for mutual recognition, thereby lessening the influence of member states to assess the qualifijications of applicants. These reforms in the recognition system clearly indicate that the goals of the single European market trumps the principle of subsidiarity, and member states are concerned about their loss of competence in the valuation of foreign-acquired diplomas and professional experience. This concern was also evident in negotiations over the free movement of professionals in Accession Treaties, which I discuss in the next section. The recognition of professional qualifijications was fijirst codifijied in the 1957 Treaty of Rome that established the right of citizens in the European Economic Community (EEC) to live and work in other member states. However, the treaty did not require member states to recognize foreign qualifijications and they often failed to do so. The limited portability of professional qualifijications across international borders formed a major obstacle to the free movement of professionals. 40 In the 1960s, the EEC initiated a process to harmonize the structure and content of professional education and training across member states, but the negotiations were time-consuming and complex. 41 In the 1970s and 1980s, the EEC created directives for each regulated profession to harmonize standards of training and professional qualifijications. For each sector, an advisory committee met in Brussels to negotiate the terms of the directives, including the minimum standards for education and training that were required for mutual recognition. 42 The negotiations resulted in 35 transitional directives concerning the recognition of professional experience, which provided the basis for sectoral directives. 43 The recognition of professional qualifijications developed from directives for individual professional sectors to a general systems directive that applied to diplomas in all sectors. These systems were unifijied in Directive 2005/36/EC that includes provisions for the valuation of professional qualifijications of registered nurses. Each of these developments was sparked by a desire to simplify the recognition of profes40

T. Keighley, European Union Standards for Nursing and Midwifery: Information for Accession Countries (Copenhagen, Denmark: World Health Organization, 2009).

41

F. Plimmer. “Mutual Recognition of Professional Qualifications: The European Union System.” 3rd FIG Regional Conference. (Jakarta, Indonesia, October 3-7, 2004). http://www.fig. net/pub/jakarta/papers/ps_05/ps_05_2_plimmer.pdf.

42

Keighley (2009).

43

Baeten and Jorens (2006).

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sional qualifijications. The following section describes and analyzes the historical developments in regulations regarding the recognition of professional qualifijications in the EU. Sectoral directives provide for automatic recognition of diplomas if individuals meet minimum training requirements. Sectoral directives establish minimum educational and training periods for each sector, and they include a list of diplomas that meet the minimum requirements. A diploma that is listed in a sectoral directive is automatically recognized in another EU member state. 44 Member states are required to recognize the diplomas on the list and they do not have authority to decline an applicant. 45 In 1975, the fijirst two sectoral directives were created for doctors, which became a model for other professions. 46 Sectoral directives for nurses in general care were implemented in 1977, consisting of Council Directives 77/442/EEC and 77/453/EEC. Council Directive 77/452/EEC concerns “the mutual recognition of diplomas, certifijicates and other evidence of the formal qualifijications of nurses, including measures to facilitate the efffective exercise of this right of establishment and freedom to provide services.” Council Directive 77/453/EEC concerns the coordination of the activities of nurses who are responsible for general care. Eventually, the European Commission developed sectoral directives that govern medical doctors, general care nurses, dentists, midwives, pharmacists, veterinary surgeons, and architects. 47 The European Commission updates the sectoral directives with each enlargement. 48 Despite its intentions to promote cross-border mobility of professionals in the EU, the sectoral directives posed considerable obstacles to the free movement of nurses. First, the system was cumbersome to use and the recognition process could take a long time. Applicants had to contact the competent authority in the host member state, which had three months to review an application. 49 Second, the process of creating and maintaining sectoral directives through harmonization was slow, cumbersome, and expensive.50 Healthcare practices change rapidly due to new advancements in technology and science, and the sectoral directives failed to adjust quickly to these developments. Third, some member states were concerned because 44

Baeten and Jorens (2006).

45

M. Peeters, M. McKee and S. Merkur, “EU Law and Health Professionals,” Health Systems Governance in Europe. The Role of European Union Law and Policy, eds. E. Mossialos, G. Permanand, B. Rita and T. Hervey (Cambridge: Cambridge University Press, 2010).

46

Wismar, Maier, Glinos, Dussault and Figueras (2011).

47

Shah and Long (2004).

48

Peeters, McKee and Merkur (2010).

49

Baeten and Jorens (2006).

50

Keighley (2009).

Politics of Free Movement in the EU: Recognition and Transfer of Professional Qualifications

the recognition of qualifijications was granted without assessment of a migrant’s knowledge and skills. The sectoral directives set minimum requirements for the length of training (in years or hours), but they did not assess the content and scope of training programs. They also failed to check if a person regularly updated his or her professional skills. Fourth, the sectoral directives did not cover new medical professions such as specialized nurses.51 The problems in these directives sparked the creation of a general systems directive for the recognition of higher education diplomas. Professions that were not covered under the sectoral directives fell under the general systems directive, such as paramedical professions that have diffferent titles, length of training, and content across EU member states,52 and nurses with specialized training. The basic principle of the general directives was that “a person who is fully qualifijied to carry out a profession in one Member State is assumed to possess the necessary qualifijications to carry out the profession in another Member State.”53 The general systems directives required member states to automatically recognize the professional qualifijications of EU citizens that satisfijied minimum training requirements.54 This meant that an EU citizen with the required qualifijications could automatically practice his or her profession in another member state after having applied for a certifijicate in the country of origin that ensured equivalency to EU educational standards. 55,56 This certifijicate enabled authorities in the host state to rapidly assess the professional qualifijications that were acquired abroad. If an applicant did not meet the minimum training requirements, the designated authority in the host state could require compensation measures such as a period of supervised practice or the passing of an aptitude exam.57 In 2002, the European Commission proposed to simplify the rules for recognition through the creation of a new system of automatic recognition.58 In particular, the Commission aimed to create a faster, cheaper, and more efffijicient system for the recognition of professional qualifijications within the EU. To attain these goals, 51

Baeten and Jorens (2006).

52

Baeten and Jorens (2006).

53

Commission of the European Communities. Report from the Commission to the Council and the European Parliament on the Application of Directive 92/51/EEC in Accordance with Article 18 of Directive 92/51/EEC, 2000), 5.

54

Baeten and Jorens (2006).

55

Keighley (2004).

56

Faller and Hua (2007).

57

Peeters, McKee and Merkur (2010).

58

EUROPA. Recognition of professional qualifications: Commission proposes to simplify EU rules. http://europa.eu/rapid/pressReleasesAction.do?reference=IP/02/393&format=HTML &aged=1&language=EN&guiLanguage=en.

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the Commission created a single directive that combined the sectoral and general system into one text, Directive 2005/36/EC on the Recognition of Professional Qualifijications. This directive replaced all previous 15 sectoral directives59 and provides the legal basis for all forms of mobility of health professionals.60 The modernization of the recognition directives coincided with the upcoming EU-10 accession. The enlargement added ten new education regimes to the EU, further complicating an already complex administrative system for the recognition of diplomas and professional qualifijications. The new directive was intended to simplify administrative procedures, including the recognition of professional qualifijications from the new EU member states. The fijirst paragraph in Directive 2005/36/EC explicitly links the freedom of movement of professionals with the mutual recognition of professional qualifijications and training: Pursuant to Article 3(1)(c) of the Treaty, the abolition, as between Member States, of obstacles to the free movement of persons and services is one of the objectives of the Community. For nationals of the Member States, this includes, in particular, the right to pursue a profession, in a self-employed or employed capacity, in a Member State other than the one in which they have obtained their professional qualifijications. In addition, Article 47(1) of the Treaty lays down that directives shall be issued for the mutual recognition of diplomas, certifijicates and other evidence of formal qualifijications.61

This paragraph indicates that the freedom of movement within the EU was a major driver for the implementation of Directive 2005/36/EC. This goal closely aligned with the Lisbon Agenda that aimed to make Europe the most dynamic and competitive knowledge-based economy by 2010 through deregulation and liberalization of services.62 This focus on increasing the economic competitiveness of EU member states included a push for liberalization of migration policies for EU citizens.63 The directive contains three articles that specifijically pertain to the training and professional qualifijications of nurses, including an article that singles out the training of Polish nurses. Article 31 in Directive 2005/36/EC establishes the require59

Keighley (2004).

60

Wismar, Maier, Glinos, Dussault and Figueras (2011).

61

European Parliament and Council of the European Union, “Directive 2005/36/EC of the European Parliament and of the Council of 7 September 2005 on the Recognition of Professional Qualifications,” Official Journal of the European Union 255.48 (2005).

62

Peeters, McKee and Merkur (2010).

63

A. Favell and R. Hansen, “Markets against Politics: Migration, EU Enlargement and the Idea of Europe,” Journal of Ethnic and Migration Studies 28.4 (2002).

Politics of Free Movement in the EU: Recognition and Transfer of Professional Qualifications

ments for the training of nurses who are responsible for general care. They must have fijinished a general education of 10 years before they can be admitted to a nursing training program, and they should receive at least 3 years (totaling 4600 hours) of theoretical and clinical training. The training program should comprise at least one third theoretical training, and at least one half should consist of clinical training. Article 32 describes the activities of nurses in general care. Article 33 specifijically singles out the training of Polish general nurses whose training started before May 1, 2004 and who do not satisfy the minimum requirements for recognition of professional qualifijications. They have to submit a certifijicate issued by a competent authority in the country of origin that certifijies that the applicant has efffectively and lawfully engaged in the responsibilities of a nurse. Despite the goals of the European Commission to make the recognition process easier, several problems remain. First, few professionals have applied for recognition under Directive 2005/36/EC due to its complexity.64 Second, the directive does not require continued education, which is crucial to keep up with rapid changes in technology and science.65 This is a particularly sensitive issue of trust, since EU member states do not necessarily trust the skills of professionals from other member states. Third, it fails to harmonize training standards in the EU. In order to harmonize training standards, 29 European governments committed to establishing a European Higher Education Area in 1999.66 This initiative aimed to make standards for academic degrees and quality assurance more comparable and compatible across EU member states.67 Currently, 46 states including all EU member states participate in the Bologna Process to create a common system of accreditation. It has not yet reached its goals to modernize higher education, partly because some states had to drastically cut funding for their education system under the global fijinancial crisis.68

64

Baeten and Jorens (2006).

65

Baeten and Jorens (2006).

66

R. Keeling. “The Bologna Process and the Lisbon Research Agenda: The European Commission’s Expanding Role in Higher Education Discourse.” European Journal of Education 41, no. 2 (2006): 203-23; European Commission, The Bologna Process - Towards the European Higher Education Area, 2011, http://ec.europa.eu/education/higher-education/doc1290_en.htm. Accessed 11/11/2011.

67

For an in-depth overview of the goals of the Bologna Process, see Shah and Long (2004).

68

Eurydice. Focus on Higher Education in Europe 2010: The Impact of the Bologna Process. (Brussels: Education, Audiovisual and Culture Executive Agency, 2010). http://eacea.ec.europa. eu/education/eurydice/documents/thematic_reports/122EN.pdf. Accessed 6/8/12.

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The next section investigates the mutual recognition of qualifijications of Polish nurses, specifijically the singling out of Polish nurses in Article 33 of Directive 2005/36/EC. Recognition of Qualifications of Polish Nurses in General Care The nursing profession in Poland is underpaid and undervalued as a legacy of Poland’s communist healthcare model.69 Polish nurses are paid far less than other professionals with a comparable level of education, and wage increases are not high enough to bring their wages in line with other skilled workers.70 In 2005, a nurse in Poland with 25 years of experience earned US $307 per month while the average monthly salary in Poland was US $559.71 The low wages result in poor motivation and morale.72 In addition, Polish nurses receive little respect from patients.73 These push factors contribute to the out-migration of Polish nurses to western Europe. In addition, the Polish state feared a loss of nurses who were desperately needed in their country of origin. Poland had a low nurse to patient ratio of 4.9 nurses per 1000 population in 2002, compared to an average nurse to patient ratio of 8.2 in the EU-15.74 The loss of Polish nurses to western Europe after Poland’s accession would further weaken the Polish healthcare system. In 2001, the European Commission sent a team of experts to Poland to evaluate the training programs for nurses and to investigate the compliance of Polish curricula with EU Directives. The team was assembled by the Technical Assistance and Information Exchange Unit of DG Enlargement (TAIEX), and included national specialists and representatives for the Center for Medical Postgraduate Training.75 The expert team administered a questionnaire for government offfijicials, followed by a three-day visit to Poland for discussions with government offfijicials and representa-

69

Dubois, McKee and Nolte (2006).

70

H.-M. Hasselhorn, B.H. Muller and P. Tackenberg, “NEXT, Nurses’ Early Exit Study Scientific Report “ (Wuppertal: University of Wuppertal, 2005).

71

D.K. Belcher and B. Hart, “Perspectives on Nursing Education in Poland,” International Jour-

72

M. Strózik, “Poland,” The Healthcare Workforce in Europe. Learning from Experience, eds. B. Re-

nal of Nursing Education Scholarship 2.1 (2005). chel, C.-A. Dubois and M. McKee (Copenhagen: European Observatory on Health Systems and Policies, 2005). 73

Hasselhorn, Muller and Tackenberg (2005).

74

Strózik (2005).

75

M. Zajac, “EU Accession. Implications for Poland’s Healthcare Personnel,” Eurohealth 8.4 (2002).

Politics of Free Movement in the EU: Recognition and Transfer of Professional Qualifications

tives for regulatory and professional bodies.76 The experts deemed the qualifijications of most Polish general care nurses below EU minimum training standards, in particular nurses who completed training programs that were combined with higher secondary education, which may not be considered post secondary education.77 Thus, these nurses did not qualify for automatic recognition under acquired rights. The expert team created a Peer Review Report and the European Commission subsequently incorporated the team’s recommendations into the Accession Treaty for Poland. In December 2001, Polish authorities announced the closure of the negotiations with the EU for the chapter on “free movement of persons.” When this chapter was signed, all stipulations therein became legally binding, including the mutual recognition of professional qualifijications.78 The valuation of Polish nursing training was likely omitted from the treaty negotiations for three reasons. First, the recognition of nursing qualifijications was one of many free movement issues to be included in the Accession Treaty, and the qualifijications of nurses was a minor issue for the parties involved. Second, it was in the government’s interest to curb the out-migration of nurses who were in high demand in Poland. Nurses who experienced difffijiculties with the transfer of their qualifijications might be more likely to remain in Poland, and the devaluation of their qualifijications thus benefijited the Polish healthcare system. Third, nursing organizations were unable to advocate for Polish nurses because they were excluded from the treaty negotiations. The Accession Treaty established adjustments in Polish laws to comply with EU legislation and World Health Organization (WHO) recommendations for nursing education.79 To meet the demands in the acquis, Polish authorities had to implement major reforms in its training system for general care nurses. Polish institutions offered only 3900 hours of nursing training while the acquis stipulated a minimum 3-year training program of 4600 hours of higher education for nurses (a bachelor

76

M. Brzezinska, Alleged Discrimination of Polish Nurses and Midwives in the Proposal for a Directive of the European Parliament and of the Council on the Recognition of Professional Qualifications (Brussels: European Parliament, 2004).

77

European Parliament. Committee on the Internal Market and Consumer Protection, “Petition by Mrs Maria Brzezinska on Discrimination against Polish Nurses and Midwives and Creation of Unfair Obstacles to Free Movement of Polish Nurses and Midwives in the Proposed Directive 2002/0061,” CM\558281EN.doc (2005).

78

Strózik (2005).

79

Zajac (2002).

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degree) with possible extension to fijive years (a master degree).80,81 Poland has implemented the required changes, and Polish institutions of higher education now only offfer bachelor and master degrees in nursing.82 Recruitment to vocational schools and post-secondary medical schools ended in academic year 2003/04 and these schools are now closed.83 The changes in nursing training were implemented to facilitate the mutual recognition of diplomas of Polish nurses within the EU. However, the majority of Polish nurses did not meet the minimum requirements and were unable to transfer their qualifijications to other EU member states. The European Commission proposed a three-tiered system for the recognition of qualifijications of Polish nurses that was included in the chapter on free movement in the Accession Treaty for Poland. These regulations were later incorporated in draft Article 2002/006 (COD) and fijinalized in Article 33 of Directive 2005/36/EC on the recognition of professional qualifijications. According to these regulations, Polish general care nurses fall under one of the following three legal regimes: 1. Automatic recognition. The Accession Treaty of April 2003 ensured that qualifijications of nurses and midwives with university education would automatically be recognized within the EU after Poland’s accession.84 Only Polish nurses with a master degree in nursing qualify under this regime. 2. Acquired rights. The Accession Treaty permits certain acquired rights, as established in Annex II, 2.C. Citizens in the accession states whose training started before May 1, 2004 and who do not meet the minimum training requirements can use their professional experience for recognition purposes. An applicant has to request a certifijicate of conformity from a regional council of nurses and midwives in Poland that states that the applicant has been engaged efffectively and lawfully in relevant nursing activities. Nurses with a bachelor degree must have practiced nursing for at least three consecutive years during the fijive years prior to the date of issue of the certifijicate. Nurses who received post-secondary training from a medical vocational

80

Zajac (2002).

81

For an in-depth overview of changes in nursing education in Poland, see Belcher and Hart

82

G. Nowak-Starz, K. Zdziebło, M. Szpringer and S. Głuszek, “Nursing Education in Poland and

(2005) and Kuszweski and Gericke (2005). European Standards,” Studia Medyczne 9 (2008). 83

M. Zajac “Free Movement of Health Professionals: The Polish Experience,” In Health Policy and European Union Enlargement, eds. M. McKee, L. MacLehose & E. Nolte (Berkshire, England: Open University Press, 2004), 109-129.

84

Strózik (2005).

Politics of Free Movement in the EU: Recognition and Transfer of Professional Qualifications

school must have practiced nursing for at least fijive years in the preceding seven years to the date of issue of the certifijicate.85 3. Recognition under Directive 92/51/EEC. Professionals who do not meet the requirements listed under regime 1 or 2 can seek recognition under the Second General System Directive (92/51/EEC) as health assistants.86 This system of recognition severely obstructed the transfer of qualifijications of the majority of Polish nurses in EU member states. Only Polish nurses with a master degree in nursing qualifijied for automatic recognition, applying to only 2% of all Polish nurses.87 Only about 28% of Polish nurses fulfijilled the requirements for acquired rights,88 which means that approximately 70% of Polish nurses were allowed to work only as health assistants in EU member states after Poland’s accession in 2004. These nurses could take two-year bridging courses that have been offfered since 2003 to meet the minimum requirements for recognition.89 However, these courses cost approximately two months of a nursing salary and took two years to complete, which was out of reach for many nurses. Polish nurses who did not qualify for automatic recognition or required rights and who did not take a bridging course could opt to work as health assistants or as private caregivers in EU member states. These nurses were likely to provide domestic elder care in Germany or Italy, or they cared for people with disabilities. 90,91 There is also a large number of Polish nurses in the UK

85

European Commission, Recognition of Diplomas of Polish Nurses/Midwives, 2005. http:// ec.europa.eu/internal_market/qualifications/docs/nurses/polish_nurses_en.pdf, Accessed 10/18/2008.

86

European Commission (2005).

87

Strózik (2005).

88

K. Krajewski-Siuda and P. Romaniuk, “Wanted: Nurses,” European Journal of Public Health 16.4 (2006).

89

Strózik (2005).

90

T. Elrick and E. Lewandowska, “Matching and Making Labour Demand and Supply: Agents in Polish Migrant Networks of Domestic Elder Care in Germany and Italy,” Journal of Ethnic and Migration Studies 34.5 (2008).

91

M. Kautsch and K. Czabanowska, “When the Grass Gets Greener at Home: Poland’s Changing Incentives for Health Professional Mobility,” Health Professional Mobility and Health Systems: Evidence from 17 European Countries, eds. M. Wismar, C.B. Maier, I.A. Glinos, G. Dussault and J. Figueras (Copenhagen: World Health Organization, 2011).

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and Ireland, and many of these accepted positions below their skill level in nursing homes and as domestic caregivers.92 Protest Against the New Directives by the Polish Nursing Unions The nursing unions in Poland objected to the conditions in the Accession Treaty, arguing that the European Commission discriminated against Polish nurses and that its regulations violated the right of free movement of Polish nurses in the EU. The Main Chamber of Nurses and Midwives (Naczelna Izba Pielęgniarek i Położnych) was not notifijied about the visit by the team of medical experts in 2001, and its leaders were not invited to participate in negotiations over the acquis. The Chamber noted that the TAIEX team of experts only spent three days to assess Polish nursing training programs and the quality of professional qualifijications of Polish nurses.93 The Chamber argued that the team unjustly singled out nursing training in Poland, stressing that other accession states such as Lithuania did not meet the minimum training requirements either. Nurses in the other accession states were allowed to transfer their qualifijications in other EU member states, while a large number of Polish nurses did not qualify for mutual recognition. The Chamber particularly disagreed with the conditions in the special acquired rights for Polish nurses in Directive 2002/0061 (COD). This was the draft for Directive 2005/36/EC that singled out Polish nurses, and the Chamber tried to avert the incorporation of the special conditions for Polish nurses into the new directive. The special conditions in Directive 2002/0061 (COD) stated that Polish nurses with a Diploma degree must have practiced nursing at least 5 years in the last 7 years. Acquired rights for the other accession states required only 3 years practice in the last 5 years, which is a signifijicantly shorter practice period. In addition, Directive 2002/0061 (COD) required a post secondary education for Polish general nurses to qualify for automatic recognition. This requirement did not apply to general nurses in other accession states, thus singling out the training of Polish nurses. The special conditions for Polish nursing qualifijications were implemented by the European Commission following the recommendations by the TAIEX team of experts, which I explained in more detail in the section on the recognition of qualifijications of Polish nurses in general care. Maria Brzezinska, President of the Katowice chapter of the Main Chamber of Nurses and Midwives, fijiled a complaint with the Committee on 92

S. Spencer, S. Martin, I.L. Bourgeault and E. O’Shea, The Role of Migrant Care Workers in Ageing Societies: Report on Research Findings in the United Kingdom, Ireland, Canada and the United States. (Geneva: International Organization for Migration, 2010).

93

Interview with representatives for the Main Chamber of Polish Nurses and Midwives, April 2006.

Politics of Free Movement in the EU: Recognition and Transfer of Professional Qualifications

Petitions in the European Parliament in 2005 to protest the special conditions for Polish nurses (776/2004).94 Brzezinska argued in the petition that the accession negotiations singled out Polish nurses unfairly and created serious obstacles to the free movement of persons. She noted that the limitation on acquired rights for Polish nurses and midwives were not applied to nationals of other member states. In an appendix, Brzezinska argued that the peer review reports by the TAIEX team of experts did not offfer any explanation why Polish nurses were singled out for special treatment. The peer review reports for Poland mentioned that the team did not have time to study previous training programs and it did not have sufffijicient information to collect accurate and complete data. Thus, the team only evaluated existing training programs, failing to take into account the older programs that the majority of Polish nurses graduated from. Brzezinska concluded that the European Commission violated legal rights in the EU Treaty and the EU by singling out the training of Polish nurses as defijicient. Brzezinska also disagreed with a stipulation in Directive 2002/0061 (COD) that the quality and content of bridging courses for Polish nurses had to be determined and approved by the European Commission.95 The authorities in the other accession states were allowed to determine the need for and content of bridging courses. These separate conditions for Polish bridging courses were “a clear case of discrimination based on nationality” according to Brzezinska. She demanded that Poland be treated on an equal basis to all other accession states and the existing EU15 states. The Committee on Petitions closed Brzezinska’s case on February 11, 2005, arguing that Polish nurses were not discriminated against. The special provisions for Polish nurses were based on the peer-reviews and meetings with the Polish authorities that determined that Poland’s “post-secondary training falls substantially below the minimum requirements of the relevant Directives.”96 The European Parliament noted that the same requirement of 5 years’ professional experience during the past 7 years also applied to veterinary surgeons in Estonia. Therefore, there was no discrimination against Polish nurses and midwives. The decision continued: “The Accession Treaty, which has been accepted by Poland and ratifijied by referendum, does not foresee any automatic recognition of diplomas of secondary level educa94

Brzezinska filed the petition as a private citizen “so that I can express my views openly and without the constraints of official status” (European Parliament 2005). However, the opinions in the petition largely reflected the position of the Chamber and the Polish Nursing Association.

95

Document 2002/0061 (COD) is a proposal for a directive of the European Parliament and the Council on the recognition of professional qualifications. This draft formed the basis for the 2005/36/EC directive.

96

European Parliament (2005).

133

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Chapter 5 – Micheline van Riemsdijk

tion. The reason for this is that the peer-reviews and technical meetings showed that the training in question (secondary education) falls far below the minimum requirements of the relevant Directives and would correspond rather to ‘health assistants.’” 97 The European Parliament argued that the special provisions for Polish nurses were included in the Accession Treaty that had been approved by the Polish authorities and citizens by referendum, and could not be overturned. Brzezinska fijiled a complaint with the European Ombudsman Nikoforos Diamandouros against the European Commission on January 3, 2006. She complained that “the peer reviewed [TAIEX] reports are not public but have been provided for the governments of the accession countries.”98 In addition, she asserted that unofffijicial draft versions of the report contained inaccurate information, and were used by offfijicials to make their decision on the qualifijications of Polish nurses. Finally, Brzezinska accused the expert committee of leaking information to the European Federation of Nurses Association. The European Ombudsman investigated the information leak and concluded that this did not take place within the European Commission. He did not fijind proof of Brzezinka’s allegations and closed the case. The response from the European Ombudsman indicates that the European Commission followed established procedures in the valuation of professional qualifijications. The TAIEX team of experts evaluated the training programs for Polish nurses, and the European Commission used the peer review report to establish minimum requirements for the transfer of professional qualifijications. However, the decisions of the European Commission and the Ombudsperson do not address the democratic defijicit in the treaty negotiations. The omission of the nursing associations from the negotiations and the rapid signing of the Accession Treaty made it impossible for the nursing unions to request a more in-depth evaluation of the training of Polish nurses. Once the Accession Treaty was signed, the provisions became legally binding and could not be changed. Brzezinska was determined to continue her plight, and she established the non-profijit organization Justice for Polish Nurses in 2006 to draw attention to the unequal treatment of Polish nurses in the EU. Brzezinska and other volunteers created the web site http://www.justiceforpolishnurses.eu to explain its cause.99 The web site contained legal documents related to the free movement of professionals, 97

European Parliament (2005).

98

European Ombudsman, Decision of the European Ombudsman on Complaint 191/2006/MHZ against the European Commission, 2007. http://www.ombudsman.europa.eu/decision/ en/060191.htm. Accessed 6/21/12.

99

The web site is no longer available on the Internet. The author last accessed the web site on April 11, 2008.

Politics of Free Movement in the EU: Recognition and Transfer of Professional Qualifications

EU legislation regarding the recognition of qualifijications in the EU, and nursing training in EU member states. The web site also included letters exchanged between the Chamber and the European Parliament. The web site presented the case of the Polish nurses as follows: 100 Welcome to the website of the Katowice District Chamber of Nurses and Midwives. For the last four years we, and our colleagues representing thousands of nurses and midwives in other regions of Poland, have tried to convince the institutions of the European Union that the Accession Treaty contained clauses which discriminate against Polish nurses and midwives in comparison to those from other accession countries and created obstacles to our rights of free movement; both of which are in contravention of the terms of the European Treaty and the EU Charter of Fundamental Rights. Our effforts have, in general, been met at various times by indiffference, contempt, threats of legal action, lies and bureaucratic buck-passing or cover-up. Only rarely have our rights as EU citizens been respected and for those few cases of genuine implementation of civil rights we offfer our gratitude.101

This statement indicates that Brzezinska and the volunteers in the Katowice District felt ignored by the European Commission and the European Parliament. They used legal channels to make their case, but the European Commission and the European Parliament informed them that it was too late to make any changes to EU regulations regarding the recognition of Polish qualifijications. Eventually, Brzezinska and her followers resorted to informal opposition strategies. On October 11, 2006, Brzezinska and twenty-nine Polish nurses and midwives arrived in Brussels by bus to protest at the European Parliament. They provided free health screenings to policymakers and presented petitions that demanded equal rights as EU citizens and the annulment of discriminatory clauses in the accession treaty and Directive 2005/36/EC. Again, the nurses were informed that the conditions in the acquis were legally binding and could not be overturned. Eventually, the Polish nurses won a small victory when the European Commission agreed to fijinance bridging courses for Polish nurses. The Polish Ministry of Health organized bridging courses for 36,000 Polish nurses in October 2009, co-fijinanced by European Social Funds.102 These bridging courses aimed to provide Polish nurses better career opportunities and working conditions in Poland, 100

The web site was available in Polish and English. The English version is used in this article.

101

Justice for Polish Nurses, Introduction, 2006. http://www.justiceforpolishnurses.eu. Accessed 4/11/2008.

102

European Federation of Nurses Association. Activity Report (Brussels: European Federation of Nurses Association, 2009).

135

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and the opportunity to practice in other EU member states. The bridging courses enabled Polish nurses with Bachelor or post secondary diplomas to enhance their competencies and to transfer their qualifijications across EU borders. Discussion The case of the recognition of qualifijications of Polish nurses is a clear example of a democratic defijicit in the EU. Crombez (2003) characterizes a democratic defijicit as a lack of transparency, an excess of delegation in the legislation process, and/ or a lack of information.103 The valuation process of Polish nursing degrees clearly indicates a lack of transparency and information for key stakeholders. The Polish nursing unions were not informed about the visit of the TAIEX team of experts who assessed Polish nursing training and professional qualifijications in 2001, and they were excluded from the negotiations over the chapter on the free movement of persons in the Accession Treaty. Thus, salient stakeholders were excluded from the Treaty negotiations that had far-reaching implications for Polish nurses and their reputation in western European member states. Leaders of the Chamber of Polish Nurses and Midwives argued that several stakeholders benefijited from the devaluation of Polish nursing degrees in Directive 2002/0061 (COD), possibly contributing to the special requirements for Polish nurses.104 The Polish Ministry of Health was concerned about an exodus of nurses after Poland’s accession, and the obstacles to the recognition of their qualifijications in the EU-15 were likely to keep more nurses in Poland. The barriers to Polish nursing migration also benefijited the EU-15 states that tried to protect their national labor markets. They feared that Polish nurses would drive down wages and “steal” jobs from their citizens. A pan-European nursing association shared this concern. In February 2004, the Standing Committee of Nurses of the EU (PCN), which represents 31 national nurse associations in Europe, sent a letter to Directorate General (DG) Internal Market Commissioner Bolkestein, DG Enlargement Commissioner Verheugen, and DG Health and Consumers Commissioner Byrne. In this letter, the association expressed concerns about the directives regarding the recognition of professional qualifijications in the EU.105 In particular, the PCN was concerned about what they called the “Polish situation.” They noted that “the expert peer review of the European Commission reported that in the case of Poland, which has the larg103

C. Crombez, “The Democratic Deficit in the European Union: Much Ado About Nothing?,” European Union Politics 4.1 (2003).

104

Interviews with leaders in the Chamber of Polish Nurses and Midwives in April and May 2006.

105

The PCN is now called the European Federation of Nurses Associations (EFN).

Politics of Free Movement in the EU: Recognition and Transfer of Professional Qualifications

est nursing workforce of the candidate countries, there were serious defijiciencies in relation to training and education in comparison with EU standards.”106 The PCN recommended the implementation of bridging courses to bring Polish qualifijications in line with EU minimum standards. Interestingly, the PCN mentioned the size of the nursing workforce in Poland, which the PCN likely regarded a threat. The PCN’s warning of a “Polish problem” occurred at the same time as the threat of the Polish plumber emerged in France. The Polish plumber became the stereotypical image of the Polish threat to national labor markets in the EU. In addition, fears of Polish nurses emerged and created a negative reputation of Polish nurses in western Europe. The Polish National Tourism Offfijice cleverly designed a poster campaign to turn these negative perceptions of Polish workers into a way to attract tourists to Poland. The offfijice fijirst launched a poster of a seductive plumber who invited tourists to Poland. Thereafter the offfijice designed a poster of a sensual Polish nurse who was welcoming tourists to Poland. These poster campaigns helped improve the perception of Poland in western Europe, but worries about the “threat” of Polish plumbers and nurses remained.107 Employers in the EU-15 also benefijitted from Polish nurses who did not qualify for automatic recognition or special acquired rights. These nurses were allowed to work only as health assistants in EU member states, and these experienced nurses could thus be paid a lower salary than general care nurses. This hiring of skilled migrants for positions below their level of competency has been widely documented in the skilled migration literature.108 The dispute between the Chamber of Nurses and Midwives and the European Parliament indicates that the decision-making regarding the recognition of qualifijications of Polish nurses was a top-down process. The TAIEX team of experts met with government offfijicials and legislative bodies to discuss the training programs of Polish nurses, but they did not consult with representatives for the nursing unions.

106

European Public Health Alliance, PCN Warns: Polish Nursing Training Lower Than EU Standards, 2004. http://www.epha.org/a/215. Accessed 11/15/2011.

107

For images of these poster campaigns and a more in-depth discussion of the Othering of Polish migrants in western Europe, see van Riemsdijk (2010).

108

H. Bauder, “‘Brain Abuse,’ Or the Devaluation of Immigrant Labour in Canada,” Antipode 35.4 (2003); A. Liversage, “Vital Conjunctures, Shifting Horizons: High-Skilled Female Immigrants Looking for Work,” Work, Employment and Society 23.1 (2009); T. O’Brien, “Overseas Nurses in the National Health Service: A Process of Deskilling,” Journal of Clinical Nursing 16.12 (2007); P. Raghuram and E. Kofman, “The State, Skilled Labour Markets, and Immigration: The Case of Doctors in England,” Environment and Planning A 34.11 (2002); M. van Riemsdijk (forthcoming).

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This oversight resulted in push-back from the Chamber that demanded equal rights for Polish nurses. This chapter does not try to determine the quality of the qualifijications of Polish nurses with secondary education or whether nursing training in other accession states really met the Commission’s minimum requirements. These questions aside, the case indicates a democratic defijicit in the EU and is an example of top-down decision-making power that omitted key stakeholders. It also indicates an increasing Europeanization of governance of healthcare systems, which I discussed at the beginning of this chapter. Member state competencies are increasingly transferred to the EU level and member states are losing decision-making power in the delivery of healthcare services and the training of healthcare personnel. Lastly, the contestations over the valuation of Polish nursing training are indicative of the tension in the EU between a liberal market-oriented approach to international migration versus member states’ desires to protect their national labor markets.109,110,111 The protectionist concerns stand in the way of greater political and economic integration, including the free movement of professionals in EU member states. Conclusion The recognition of qualifijications of Polish nurses indicates that the creation of a single European market is not yet achieved in terms of the free movement of professionals. The remaining obstacles to free movement are becoming a more pressing issue under the implementation of the Single Market Act. In order to achieve this goal, the European Commission is revising Directive 2005/36/EC to remove further obstacles to the single European market. In 2011, the European Commission prepared a proposal to modernize the professional qualifijications directive to further remove obstacles to the free movement of professionals. This initiative resulted in an early 2011 Green Paper that proposed a European Professional Card.112 The card aimed to simplify the application and administration process for recognition of qualifijications, and to increase trust among competent authorities in diffferent member states. The Professional Card would transfer the burden from the receiving state to the competent authority in the sending state to verify the qualifijications and diplomas of applicants, and to assess the right to practice. The decision-making process for this 109

Favell and Hansen (2002).

110

Boswell and Geddes (2011).

111

M. van Riemsdijk. “(Re)Scaling Governance of Skilled Migration in Europe: Divergence, Harmonization, and Contestation.” Population, Space and Place 18, no. 3 (2012).

112

European Commission, Green Paper. Modernising the Professional Qualifications Directive COM(2011) 367 final.

Politics of Free Movement in the EU: Recognition and Transfer of Professional Qualifications

new initiative seems to be more inclusive. The European Commission invited various stakeholders to provide feedback on the Green Paper, resulting in over 400 responses. The Commission also held two public conferences to take stock of the opinions of stakeholders. These responses were reviewed before the Commission presented a legislative proposal in December 2011 to modernize the directive.113 Several stakeholders were concerned about access to information, efffijiciency of recognition procedures, automatic recognition, and patient safety.114 The planned revisions in Directive 2005/36/EC indicate that the Commission recognizes that barriers to free movement remain, and it is committed to removing these obstacles. However, it will be a challenge to meet the expectations and demands of various stakeholders who are involved in the recognition of professional qualifijications. Aside from the free movement issue, it is important to improve the working conditions and salaries of nurses in Poland. The nursing situation in Poland continues to be dire with low wages, a lack of modern medical equipment, and low status of the profession.115,116 If these structural issues are not addressed it is likely that Polish nurses will continue to look for better opportunities in western Europe. In addition, member states should commit to improving the working conditions and increase the wages of nurses within their national borders. A domestic nursing shortage may be indicative of structural issues that make the nursing profession undesirable. Future research should study the roles of various stakeholders in the migration policymaking process. This case study has indicated that the Polish Chamber of Nurses and Midwives tried to influence European policymakers in various ways, from formal complaints to the European Commission, the European Parliament, and the European Ombudsman to informal protests in Brussels. The nursing association did not receive support for its case from the Democratic Left Alliance (SLD) government during the time of accession, but the Minister of Health Zbigniew Religa in the following Law and Justice (PIS) government was more responsive. Member of the European Parliament (MEP) Bogdan Golik (non-attached member) arranged the visit to Brussels, and MEP Genowefa Grabowska (SLD) provided legal advice

113

European Commission, European Professional Card, http://ec.europa.eu/internal_market/qualifications/policy_developments/european_professional_card_en.htm. Accessed 6/27/12.

114

European Commission. Proposal for a Directive of the European Parliament and of the Council amending Directive 2005/36/EC on the recognition of professional qualifications and Regulation on administrative cooperation through the Internal Market Information System, COM(2011) 883 final.

115

E. Holt, “Poland’s Nurses Warn of Crisis in Profession,” The Lancet 375, no. 9719 (2010), 972.

116

Hasselhorn, Muller and Tackenberg (2005).

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and contacts.117 However, these contacts were not sufffijicient to change the provisions in the Accession Treaty. On the other side, the European Federation of Nurses Associations used its alliances with the European Commission to protect European labor markets from the “threat” of Polish nurses. An in-depth study of the alliances and networks of stakeholders would provide further insights into the policymaking process. Second, I recommend a further investigation of the tensions between the goals of the single European market and the principle of subsidiarity. An indepth study of these tensions would provide insights into the ways in which the EU increases its decision-making power in public service arenas such as healthcare, and its outcomes at the national, regional and local scale. Third, it is important to study how the global fijinancial crisis afffects the nursing workforce and international nurse migration. The European Federation of Nurses Association (EFN) conducted a survey among its members to assess the impact of the fijinancial crisis on nurses and nursing. The EFN found that between 2008 and 2012 the number of nursing positions and nurses’ salaries had declined, some nurses experienced salary freezes, and concerns about patient safety increased.118 At the same time, demand for nurses has increased in several EU member states. For instance, Germany recruited nurses from Portugal in 2012 to stafff its hospitals, capitalizing on the high unemployment rates in southern Europe.119 The migration of healthcare workers from Euro-crisis areas like Portugal, Spain and Greece should be studied to more fully understand the dynamics and extent of international nurse migration under the global economic crisis. The European Centre for the Development of Vocational Training (CEDEFOP) estimates a need for an additional 16 million highly skilled workers in Europe by 2020, including one million health professionals.120 It is imperative to study employers’ stafffijing needs and the migration patterns of highly skilled workers to better understand how these labor needs can be met. This will become a particularly pressing issue when the “silver tsunami” hits Europe and other high-income continents. 117

Personal correspondence with an International Affairs Adviser for the Katowice District Chamber of Nurses and Midwives, August 2012.

118

European Federation of Nurses Associations, Caring in Crisis. The Impact of the Financial Crisis on Nurses and Nursing. A Comparative Overview of 34 European Countries (Brussels, Belgium, 2012).

119

C. Pauly, “Hunt for Skilled Labor. Germany Woos Portugal’s Lost Generation,” Der Spiegel 3/28 2012. http://www.spiegel.de/international/europe/analysis-of-germany-s-search-forskilled-labor-in-portugal-a-824089.html. Accessed 6/29/2012.

120

CEDEFOP. Skill Supply and Demand in Europe: Medium-Term Forecast up to 2020 (Luxembourg: European Centre for the Development of Vocational Training (CEDEFOP), 2010. http://www.cedefop.europa.eu/en/Files/3052_en.pdf.

Politics of Free Movement in the EU: Recognition and Transfer of Professional Qualifications

The transfer of professional qualifijications of EU- and non-EU health professionals is critical to meet the healthcare needs of these aging populations, while it is imperative to adhere to international ethical guidelines that regulate the international recruitment of health professionals. Acknowledgements I would like to thank Willem Maas, Martin Geiger, and Anne Staver for their comments. An earlier version of this chapter was presented at the Highly Skilled Migration in the 21st Century conference at Middlesex University, and I appreciate the feedback of conference participants. I am also grateful for research assistance by Grzegorz Grabowski in Warsaw and Matt Cook in Knoxville. Last but not least, I thank all study participants for sharing their insights. This research was funded by a Doctoral Dissertation Research Improvement grant from the National Science Foundation (0425077), a George and Viola Hofffman Award from the Association of American Geographers, and a Professional Development Award from the University of Tennessee. This fijinancial support is greatly appreciated. The Centre for Migration Research in Warsaw provided institutional assistance.

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6.

Roma and the Limits of Free Movement in the European Union Jacqueline S. Gehring

If two questions have haunted European post-war effforts at regulating human behavior, these have been how to address the lingering issues of race in post-genocide, postcolonial Europe on the one hand, and how to respond to the fact that people move on the other.1 –Claude Cahn

Introduction2 As one of the four fundamental freedoms of the European Union (EU), the free movement of people across national boundaries is essential to the economic success of the common market. As the right to free movement has developed in EU law, its application in practice has faced a number of challenges by states wishing to limit migration to desirable individuals such as those with needed skills or high economic standing. Such discrimination against European citizens exercising free movement not only has economic impacts, but also can be seen as a failure of the EU and its member states to treat all citizens equally. The European Commission, as the primary enforcement body of European law, is responsible for indentifying violations of

1

C. Cahn, “Minorities, Citizenship and Statelessness in Europe,” European Journal of Migration and Law 14, no. 3 (2012): 297–316.

2

I would like to thank Willem Maas and the participants in the Free Movement and Discrimination Conference at the European Union Centre of Excellence at York University for their comments. I am also grateful for research assistance by Megan Knox at Allegheny College. This research was funded in part by a grant from Allegheny College. This financial support is greatly appreciated.

Willem Maas (ed.), Democratic Citizenship and the Free Movement of People Copyright 2013 Koninklijke Brill NV. ISBN 978-90-04-24327-9 pp. 143-174

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the free movement rules. If a violation has occurred, the Commission is responsible for guaranteeing member state compliance through its infringement procedure. Limitations on the right of free movement and residence in the European Union were put into sharp focus by the forced expulsion of Roma from France in the summer of 2010. Since 2010 the European Commission has taken signifijicant steps to ensure that member states such as France no longer engage in illegal expulsions. Yet, similar actions targeting Roma continue to occur across western Europe. This chapter explores the Commission’s response to the French expulsion and considers the Commission’s actions in this specifijic case in relation to its implementation effforts more broadly. It asks why some member states seek to restrict free movement of the Roma, and why the Commission acts to protect the rights of some groups more than the rights of others. I argue that the Commission is severely limited in achieving the practical implementation of many of the EU’s policies because of its weakened position in relation to member states and its limited resources. Policies specifijic to the Roma are especially difffijicult to implement because of strong member state resistance to European interference in this sensitive policy area. Indeed, the mistreatment of the Roma has a long and entrenched history in most European societies and contemporary violations of the right to free movement and residence are best seen as part of that historical experience. In contemporary politics, the Roma have become an easy scapegoat for politicians seeking to blame social problems on a group perceived to be perpetual outsiders. In the end, full implementation of the right to free movement and residence for the Roma will most likely remain an illusion in the near future. Instead, racially discriminatory policies undertaken by member state governments will continue to be allowed by a weak Commission. The Commission’s inability or unwillingness to require member states such as France and Italy to comply fully with European law is a result of its precarious position in relation to the member states. In addition, despite the increasing power of the European Parliament (EP) in European lawmaking, the EP can do little but encourage the Commission to investigate when a member states refuses to comply with European rules. Indeed, when a number of member states agree to resist European law the Commission must make a political calculation about the amount of political capital it wishes to expend on that particular issue. In the case of the Roma expulsions from France in 2010, the Commission initially responded strongly to France, but, as it had done in the case of the fijingerprinting of Roma by the Italian government previously, it quickly backed down. In order to understand the situation of the Roma and the limitations placed on their free movement by member states, this chapter begins with an introduction to the Roma and their historical experiences in Europe, focusing on the limitations placed on their free movement throughout European history. This section highlights how the Roma have been racialized by policymakers in Europe, and identifijies many

Roma and the Limits of Free Movement in the European Union

of the misconceptions people hold about the Roma today. The chapter then introduces the EU’s effforts to control the migration of the Roma before the accession of new eastern European member states in 2004 and 2007. The pre-accession policies display both the EU’s commitment to equality for the Roma and the wishes of western member states to prevent the migration of Roma to the west. The chapter then places the expulsion of Roma from France in 2010 within the legal framework of European law, introducing the free movement directive. In the subsequent analysis of the French expulsions, it will become clear that the free movement directive was repeatedly and knowingly violated by the French government. Finally, the chapter concludes with an analysis of the Commission’s response to the French expulsions. Questions to be addressed include: Why did the Commission not follow through on its initial rebuking of the French government? How might we evaluate the Commission’s response in light of the politics of interinstitutional relations in the EU? What does the Commission’s response tell us about the limitations of its power to guarantee the implementation of European rights for vulnerable groups, and the power of member states to resists European law? Historical Persecution and Contemporary Racism When Romani people from Eastern Europe meet Romani people from North-Western Europe today, it is the descendents of the survivors of slavery meeting the descendents of the survivors of genocide.3 –Thomas Acton

Although social constructions of race and racism are rooted in particular times and places, the poor treatment of the Roma based on their identity as Roma has been consistent throughout much of European history. Unlike the mistreatment of other minority populations in Europe, the past treatment of the Roma is rarely addressed in schools or by public offfijicials, and there is limited reflection on how this past may influence current relations between Roma and non-Roma. Historically, the Roma have been controlled through enslavement, as well as by rules that limited who they could marry and dictated where they could travel. Effforts to restrict the movement of the Roma began soon after their arrival in Europe. By the 1300s the Roma were passed from one generation to another as chattel in what is now Romania. Under the Ottomans their enslavement became formalized in legal codes. The full emancipation of the Roma in the region did not occur until 1864, with the establishment of 3

S. Ahmad Huda, “Legal Remedies for the Gypsies: Can the European Legal Frameworks Hold France Liable for the Expulsion of the Roma,” University of Pennsylvania Journal of International Law 33 (2011/12): 1085.

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Romania. 4 Many of the Roma migrants to France today are in fact descendants of these enslaved peoples. Similar enslavement occurred in other parts of Europe, including Spain, the Balkans, and Russia. In the United States there has been extensive research on how slavery shapes contemporary racial inequality between blacks and whites. This research demonstrates that the legacy of slavery is the primary basis for the signifijicant economic and social inequality experienced by black Americans who are descendants of slaves.5 It is likely that much of the inequality experienced by the Roma today also has its basis in the legacy of slavery. In those states free of slavery there were other signifijicant restrictions on the movement, residence and lives of the Roma. In France during the 1500s the Roma were banned from residing and were forcibly expelled. In 1586 Pope Pius V attempted to banish the Roma from those territories loyal to the Catholic Church. Under the rule of Holy Roman Emperor Karl VI, the extermination of the Roma was ordered, and there were “‘Gypsy hunts,’ in which Roma were tracked down and killed like wild animals.”6 Such examples establish a pattern of anti-Roma sentiment that spans Europe temporally and geographically. It is in the shadow of this shameful history that contemporary attempts to force Roma to leave communities occur. Whether these actions are undertaken by local citizens who burn homes and physically attack Roma,7 or by states that use the force of law to evict Roma as in France, they are not a new problem for Europe. Instead, these examples emphasize the extent to which European regimes, and sometimes citizens, past and present have grown accustomed to controlling the residence and movement of the Roma population. State-sponsored violence against the Roma reached its zenith as part of the Holocaust. In an attempt to rid Europe of what Himmler termed the “Gypsy Plague,” Roma were rounded up into Nazi camps, from which many were sent to extermination camps. Many other Roma in eastern Europe, were executed immediately by einsatzgruppen (SS paramilitary death squads). The Roma were categorized by the Nazis 4 5

I. Hancock, We Are the Romani People (University of Hertfordshire Press, 2002), 23-25. H. O’Connell, “The Impact of Slavery on Racial Inequality in Poverty in the Contemporary U.S. South,” Social Forces 90, no. 3 (2012): 713–734, accessed August 31, 2012.

6

I. Hancock, “Roma: Genocide of Roma in the Holocaust” in I. W. Charny, ed., Encyclopedia of Genocide (Santa Barbara, CA: ABC-CLIO, 1999), 501.

7

I. Traynor, “Violence and Persecution Follow the Roma Across Europe,” The Guardian, November 27, 2006, http://www.guardian.co.uk/world/2006/nov/27/eu.politics; “Romanian Government Acknowledges Responsibility for Anti-Romani Pogroms - ERRC.org,” accessed August 31, 2012, http://www.errc.org/article/romanian-government-acknowledges-responsibility-for-anti-romani-pogroms/2748; “Bulgaria: Protesters Attempt Roma Pogroms in Major Bulgarian Cities - Novinite.com - Sofia News Agency,” Sofia News Agency, September 26, 2011, http://www.novinite.com/view_news.php?id=132437.

Roma and the Limits of Free Movement in the European Union

based on their physical characteristics and declared racially inferior. On December 16th 1941, Himmler “issued the order to have all Roma remaining in Europe deported to Auschwitz-Birkenau for extermination.”8 Estimates of Roma deaths at the hands of the Nazis vary, from a conservative 220,0009 to one million people.10 This genocide decimated the pre-Holocaust population which has been estimated to be between one and two million individuals, though no clear numbers exist. Although contemporary anti-Roma policies and attitudes are diffferent from past policies and attitudes, they are informed by a historical tradition of anti-gypsyism. Even though Europe has engaged in a post-World War Two repudiation of racism through a commitment to universal human rights, anti-Roma racism continues to be a serious social problem throughout the continent. This may be in part because the persecution and murder of the Roma during the Holocaust is less well known than the persecution and genocide of other groups such as Jews and homosexuals. It may also be because with the repudiation of biological racism by many Europeans cultural racism (or “new European racism”) has become more acceptable.11 Cultural racism, conveniently legitimates the exclusion of ‘others’ on the basis that they are culturally diffferent, and that their presence in core countries will inevitably lead to conflict. This externalization and ‘othering’ process is part of this new racist discourse, which serves the dominant structures of power by justifying exclusion and glossing over issues of social and economic inequality by cloaking discussion of these issues in ‘cultural diffference.’12

Whether those discriminating against the Roma draw on biological or cultural racism to justify their acts, they are contributing to an anti-gypsism that re-emerges throughout European history. For this reason, the history of genocide and persecution of the Roma should not be ignored by contemporary policymakers as it helps

8

Ibid.

9

“Education | Sinti & Roma,” United States Holocaust Memorial Museum, accessed July 30, 2012,

10

I. Hancock, “Romanies and the Holocaust: A Reevaluation and an Overview,” in The Histo-

http://www.ushmm.org/education/resource/roma/roma.php. riography of the Holocaust, ed. Dan Stone (New York: Palgrave Macmillan, 2004), 383–396, http://isurvived.org/2Postings/Hancock_Rom-Holocaust.html. 11

E. Balibar, “Es Gibt Keinen Staat in Europa: Racism and Politics in Europe Today,” New Left

12

K. Wren, “Cultural Racism: Something Rotten in the State of Denmark?” Social and Cultural

Review I/1866 (April 1991), http://www.sok.bz/web/media/video/Balibarrasismus.pdf. Geography 2, no. 2 (2001): 141–162.

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to uncover the deep roots of anti-gypsism in Europe, as well as explain the distrust some Roma have of the state. The emergence cultural racism, and its masking of racism with discourses of cultural diffference, might help to explain why often the racial discrimination experienced by the Roma is not recognized as racism. Instead it is framed as the accurate response to alternative lifestyle choices. The inability to recognize racism when the Roma are the targets is widespread in Europe. As the European Union’s Fundamental Rights Agency (FRA) noted in its report on the implementation of the racial equality directive in the workplace, [n]either employer organisations nor trade unions displayed a comprehensive understanding of racial discrimination as it afffects the Roma population, for instance. In some countries, Roma were referred to, but their discriminatory treatment was often not conceptualised as racism. With few exceptions, the Roma were generally not acknowledged as coming under the protection of the [racial equality] directive.13

It is striking that even trade unions that represent workers in disputes with employers did not frame discrimination against Roma as racism. This emphasizes the diffijicult position of the Roma in European society, where discrimination against them is okay because it is not “really” racism. This “logical of acceptability of racism,”14 frames European policy debates, as well as the implementation of European law. The French government’s memo directing the expulsion of Roma by name emphasizes the acceptability of racism against Roma. As Stéphane Maugendre, the president of Gisti, a leading French immigrant rights organization, queried “[c]an you imagine a directive explicitly naming Jews or Arabs?” 15 There is little doubt that such a memo would have led to a stronger response from the EU. Despite the lack of recognition that discrimination against Roma is racism, anti-Roma sentiment is recognized as widespread. According to polling data and reports from the FRA, the Roma are the most disliked ethnic group in Europe and face signifijicant discrimination in all European Union member states. In a survey con13

European Union Agency for Fundamental Rights, The Impact of the Racial Equality Directive, Views of Trade Unions and Employers in the European Union (Luxembourg: Publications Office of the European Union, 2010), 12, http://fra.europa.eu/fraWebsite/attachments/Racialequality-directive_conf-ed_en.pdf.

14

H. O’Nions, “Roma Expulsions and Discrimination: The Elephant in Brussels,” European Journal of Migration and Law 13, no. 4 (2011): 377.

15

K. Bennhold and S. Castle, “E.U. Calls France’s Roma Expulsions a ‘Disgrace’,” The New York Times, September 14, 2010, sec. World / Europe, http://www.nytimes.com/2010/09/15/world/ europe/15roma.html.

Roma and the Limits of Free Movement in the European Union

ducted by the FRA in six of the eastern European member states, one half of Roma reported experiencing discrimination in the last twelve months. These individuals experiencing discrimination reported an average of eleven incidents each per year. Furthermore, one in four of all Roma surveyed were victims of crime and over eighty percent of those criminally victimized believed that they were chosen because of their ethnicity.16 Discrimination and persecution of the Roma is also widespread in western Europe where the right of free movement is most likely to be abrogated. For example, “in Italy—the scene of heated recent debates on ‘the Roma issue’ - a reported 68% of the population stated in 2008 that they would like to see the entire Roma population expelled, regardless of nationality.”17 Although there are important local variations of anti-Roma sentiment, anti-Roma racism is common to all of Europe. Discrimination against the Roma makes it difffijicult to succeed in education or in the workforce. The extent of anti-Roma racism also creates an environment where Roma who leave eastern Europe in search of better economic opportunities in western Europe are rarely welcome, although there are some exceptions.18 Who Are the Roma Now? According to the Council of Europe Roma and Travelers Division there are approximately 11-12 million Roma living in Europe. The largest Roma populations within the EU are in Bulgaria, Hungary, Romania, and Slovakia where Roma are estimated to be between 7 and 10 percent of each state’s total population. For example, there are approximately 500,000 Roma living in Slovakia and 1,850,000 in Romania. In western Europe, Roma populations are much smaller percentages of the overall population, with estimates of the Roma population in Italy around 140,000 individuals and

16

European Union Agency for Fundamental Rights, The Situation of Roma EU Citizens Moving to and Settling in Other EU Member States (2009), accessed July 30, 2012, http://fra.europa.eu/ fraWebsite/attachments/Roma_Movement_Comparative-final_en.pdf.

17

Kington, cited in O. Parker, “Roma and the Politics of EU Citizenship in France: Everyday

18

Roma report receiving much better treatment in Spain and Spain has programs to inte-

Security and Resistance,” JCMS: Journal of Common Market Studies 50, no. 3 (2012): 475. grate migrant Roma, although Roma continue to be highly over-represented in Spanish prison populations. “The State and the Roma in Spain - ERRC.org,” European Roma Rights Center, accessed August 31, 2012, http://www.errc.org/article/the-state-and-the-roma-inspain/2288; A. Cala, “Spain’s Tolerance of Gypsies: A Model for Europe?,” Time, September 16, 2010, http://www.time.com/time/world/article/0,8599,2019316,00.html; The Barani Project, http://web.jet.es/gea21/ing.htm.

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in France approximately 400,000 people.19 Although the Roma “problem” is often framed as an issue of Roma migration to the west, anti-Roma racism and discriminatory public policies are problems in both eastern and western Europe. Even though non-Roma may have a clear image of who is and who is not a Gypsy or Roma, there is in fact a great deal of diversity amongst Roma. The European Union defijines membership in the Roma population broadly including: “Roma, Sinti, Kale, Gypsies, Romanichels, Boyash, Ashkali, Egyptians, Yenish, Dom, Lom and … Travellers, without denying the specifijicities and varieties of lifestyles and situations of these groups.” 20 The label “Roma” itself is an identifijier that not all Roma (as defijined by European policymakers) would choose to describe their ethnicity or lifestyle. For this chapter, it is useful to adopt Vermeersch’s suggestions for understanding the diffferent Roma groups that are often confused during discussions of free movement. Vermeersch emphasizes the need to consider as unique those itinerant groups such as the Gens du Voyage—who are national citizens of the countries in which they travel and usually migrate across a limited number of national borders as part of their usual travel routes… those national Roma citizens who do not live in caravans and do not have (or do not seek) an itinerant lifestyle… [and] those Roma who are citizens of an EU member state (mostly in Central and eastern Europe) and make use of the opportunities for free movement within the EU to go to another EU Member State with a plan to live there for a longer stretch of time.21

Indeed, most Roma are not itinerant travelers and instead live settled lives. Many of the Roma expelled from France during the summer of 2010 were Roma who were looking to settle in France permanently and not itinerants stopping as part of a longer journey. The misconception that most Roma do pursue an itinerant lifestyle can be a powerful tool for politicians looking to emphasize the supposed socially deviant nature of the Roma. As O’Nions notes, “most CEE Roma have been sedentary for decades. Residential isolation and temporary camps have largely arisen due to dis19

Council of Europe Roma and Travelers Division, “Statistics,” accessed July 30, 2012, http://

20

European Commission, Communication from the Commission to the European Parliament, the

www.coe.int/t/dg3/romatravellers/Source/documents/stats.xls. Council, the European Economic and Social Committee and the Committee of the Regions, National Roma Integration Strategies: a First Step in the Implementation of the EU Framework, May 21, 2012, 2, http://ec.europa.eu/justice/discrimination/files/com2012_226_en.pdf. 21

P. Vermeersch, “Roma and Mobility in the European Union,” in Roma and Traveller Inclusion in Europe. Green Questions and Answers., ed. K. Pietarinen, accessed July 30, 2012, http://gef. eu/uploads/media/Roma_and_Traveler_Inclusion.pdf.

Roma and the Limits of Free Movement in the European Union

criminatory policies of local administrations” 22 and not because of the itinerant nature of Romani culture.23 Yet Roma continue to be portrayed as nomadic in popular culture, presenting “the typical Rom as inherently diffferent… Roma culture is thus portrayed as intrinsically alien and inferior to the values of settled society.” 24 In this way, the stereotype that all Roma undertake an itinerant lifestyle is often used to reinforce general beliefs that Roma are inherently criminal, disorderly, non-compliant, and “other.” An excellent example of how politicians exploit the stereotypes about itinerant Roma in order to frame all Roma as a threat to society can be found in the French government’s public statements about the 2010 expulsions. In these public statements the French government repeatedly interchanged Roma with Gens du voyage (French Travelers). Nacu observes that the French President Sarkozy “lumped together Gens du voyage (French Travelers), Roma immigrants,” while members of the government also “described migrant Roma as ‘offfenders’ and ‘beggars’—sometimes also confusing migrant Roma and French Gens du voyage.” 25 Confusing migrant Roma with Gens du voyage emphasizes the idea that all Roma and Travelers are itinerant. In doing so, French leaders may have been presenting “segregation and expulsion measures” as “a rational response to a particular lifestyle choice which is seen to represent criminality, poverty and deprivation.” 26 Despite the repeated claims that migrant Roma from eastern Europe who settle in countries in western Europe are criminals who create disorder, research shows that most Roma move to the west searching for economic opportunity and to escape poverty and racial discrimination in their home states. In the FRA report on the migration of eastern European Roma to western Europe, Roma repeatedly emphasized their wish to improve their lives. For example as one interviewee in Spain explained, in eastern Europe: “We, the Roma, exist but do not exist; for the important things we

22 23

O’Nions, (2011), 278. As can be seen in many of the citations to this chapter, there is debate about which name should be used to denote the entire Roma population. Some prefer the Romani people instead of Roma, while others prefer to use sub-group names such as Kale or Sinti. In this chapter I adopt the usage suggested by the Council of Europe in its “Descriptive Glossary of Terms Relating to Roma Issues.” According to the glossary, the word Romani should primarily be used to only describe culture and language, while the word Roma is preferred in other circumstances. Accessed August 15, 2012, http://hub.coe.int/web/coe-portal/roma.

24

O’Nions, (2011), 379.

25

A. Nacu, “From Silent Marginality to Spotlight Scapegoating? A Brief Case Study of France’s Policy Towards the Roma,” Journal of Ethnic and Migration Studies 38, no. 8 (2012): 1323–1324.

26

O’Nions, (2011), 378.

151

152

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do not count [...]. And I said I am leaving anywhere to search for a diffferent life for my children.”27 Although Eastern European Roma migrants do not always initially work in the regular economy, many Roma do attempt to establish a better life for themselves post-migration. These attempts, however, are often frustrated by the restrictions member states place on free movement and residence, as well as discrimination in housing and employment. One example of the desire of migrants to improve their economic situation is the story of Cristina Dumitru. When she was eleven years old Dumitru’s parents migrated from Romania to France where they worked seasonally in agriculture. Despite sometimes being homeless, Dumitru was able to successfully complete school and an apprenticeship program. She was recognized in 2012 by the French Senate as the “best apprentice” in her fijield. Recognizing the politically problematic situation of a successful Roma woman being celebrated by the French Senate, who despite her success could be expelled by the French authorities, the French government immediately granted Dumitru a short-term residency permit. Without that permit Dumitru, like other Roma who live precariously in France, had limited opportunities to study and work, and could have been expelled under the French expulsion orders of 2010.28 In Dumitru’s story one can see both the economic incentives for migrants in the west as well as the many barriers that exist to successfully improving ones life because of restrictive state policies. Dumitru’s story also disrupted the French government’s narrative about the Roma as itinerants who are on the outside of society and who bring crime and poverty to France. Instead, Dumitru was presented by the French media as a model of a successfully integrated immigrant who worked hard and contributed to society. The European Union and the Roma The European Union responded to the problems facing the Roma, and the problems that they are perceived to create for member states, by introducing programs to improve Roma integration in the “new” eastern European member states. European intervention has been driven in part by the Union’s commitment to human rights, but these programs have also been seen as a way to prevent large numbers of Roma from migrating west to “old” EU member states. As Castle-Kanerova notes, the accession of eastern European member states was “plagued by protectionism, with ‘[s]ome 27

European Union Agency for Fundamental Rights, The Situation of Roma EU Citizens Moving to and Settling in Other EU Member States, 19.

28

“‘Illegal’ Roma Teenager Wins French ‘Best Apprentice’ Award,” FRANCE 24, accessed July 30, 2012, http://www.france24.com/en/20120403-illegal-roma-teenager-wins-french-bestapprentice-award-immigration-senate-france.

Roma and the Limits of Free Movement in the European Union

Western governments … willing to increase certain types of international assistance [only] if they expect that this will help in reducing emigration pressures’.”29 Such protectionism seems like a natural response since, as Braham and Braham note, “any appearance of large numbers of Roma could … invite public hostility across the political spectrum.”30 The policies that made up this “concerted efffort to prevent the Roma from ‘invading’ Europe,”31 included encouraging NGO outreach to Roma communities, requiring new member states to transform legal and bureaucratic structures, and fijinancial support for social programs targeting the Roma. Their direct impact on the Roma was limited,32 although scholars have found some improvements in socioeconomic measures for Roma as a result of the accession process overall.33 The multiple motives for creating a European focus on the Roma underscore the complicated political equation surrounding European Roma policy. To a large extent European policy with respect to the Roma was driven by the perceived threat of Roma migration to older member states that wish to only grant free movement and residence rights to desirable migrants. Overall, however, these policies have failed to prevent migration by Roma in search of improved economic opportunities. At the same time the EU has emphasized improving the lives of the Roma as part of its human rights and racial equality agendas. By clearly placing the rights of the Roma as equal European citizens on the political agenda during the accession of the eastern European member states, the EU has committed itself to the equal treatment of the Roma and to the protection of their fundamental European rights. The French expulsions of 2010 brought the wish of some western member states to prevent Roma migration into conflict with the EU’s responsibility to uphold the right to free movement and residence of all European citizens, as well as the right to be free from racial discrimination.

29

Brochmann, cited in M. Castle-Kanerova´, “Romani Refugees: The EU Dimension,” in Between Past and Future: The Roma of Central and Eastern Europe, ed. W. Guy (University of Hertfordshire Press, 2001), 125.

30

M. Braham and M. Braham, “Romani Migrations and EU Enlargement,” Cambridge Review of International Affairs 13, no. 2 (2000): 105.

31

W. Guy, Between Past and Future: The Roma of Central and Eastern Europe (University of Hert-

32

B. Rechel, “What Has Limited the EU’s Impact on Minority Rights in Accession Countries?,”

fordshire Press, 2001), 122. East European Politics & Societies 22, no. 1 (February 1, 2008): 171–191. 33

M. Spirova and D. Budd, “The EU Accession Process and the Roma Minorities in New and Soon-to-be Member States,” Comparative European Politics 6, no. 1 (April 2008): 81–101.

153

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The Right to Racial Equality There is little doubt the Roma are being targeted as an ethnic/racial group by a number of member states, yet the EU’s response to this diffferential treatment has been limited. For example, although the Commission has publicly denounced the fijingerprinting of Roma in Italy, and the expulsions of Roma from France, it has not pursued legal action against either state for the infringement of European anti-discrimination protections.34 In the case of the French expulsions, a government memo surfaced in 2010 that made clear that Roma, in particular, were targeted for removal from French soil based on their Roma (ethnic/racial) identity.35 This memo meant that “the charade was over,” and that the government’s position that its policies were not targeted at an ethnic/racial group was untrue.36 Despite the memo, however, the Commission did not pursue infringement proceedings against France for racial discrimination. Instead, the Commission accepted the French government’s assurances that the memo was an aberration that was quickly corrected.37 The Commission could have pursued France for the violation of a number of European anti-discrimination measures including the racial equality directive (RED), the EU’s Charter of Fundamental Rights (Charter), and the non-discrimination clause in the preamble of the free movement directive. This section will explore these European rules and suggest why the European Commission has not pursued racially/ethnically motivated member state violations of free movement as violations of the right to racial equality and non-discrimination.

34

Although Vice President Reding expected infringement proceeding against France for the discriminatory application of the free movement directive (see, Viviane Reding, “Statement on the Latest Developments on the Roma Situation,” September 14, 2010, http://www.cironlus.org/SPEECH-10-428_EN%5B1%5D.pdf), the Commission did not use discrimination as the basis for its infringement case against France (see, DG Employment, Social Affairs & Inclusion - European Commission, “Commission Decided to Start Infringement Proceedings Against France,” September 29, 2010, http://ec.europa.eu/social/main.jsp?langId=en&catId =89&newsId=902&furtherNews=yes.).

35

“La circulaire visant les Roms ‘très probablement illégale’,” Le Monde.fr, accessed July 30, 2012, http://www.lemonde.fr/politique/article/2010/09/12/la-circulaire-visant-les-roms-estelle-illegale_1410188_823448.html.

36

Q. Bennett, “Please Don’t Be Our Guest: The Roma Expulsion from France Under European

37

DG Employment, Social Affairs & Inclusion - European Commission, “Commission Decided

Union Law,” Georgia Journal of International and Comparative Law 40 (2011): 227. to Start Infringement Proceedings Against France,” September 29, 2010, http://ec.europa. eu/social/main.jsp?langId=en&catId=89&newsId=902&furtherNews=yes.).

Roma and the Limits of Free Movement in the European Union

The RED requires that “Member States shall take the necessary measures to ensure that: (a) any laws, regulations and administrative provisions contrary to the principle of equal treatment are abolished.”38 Clearly, the French memo targeting Roma for expulsion amounted to an “administrative provision” that is “contrary to the principle of equal treatment.” Furthermore, the RED prohibits discrimination by public and private actors in a number of fijields including (a)

(b) (c) (d)

(e) (f) (g) (h)

conditions for access to employment, to self-employment and to occupation, including selection criteria and recruitment conditions, whatever the branch of activity and at all levels of the professional hierarchy, including promotion; access to all types and to all levels of vocational guidance, vocational training, advanced vocational training and retraining, including practical work experience; employment and working conditions, including dismissals and pay; membership of and involvement in an organisation of workers or employers, or any organisation whose members carry on a particular profession, including the benefijits provided for by such organisations; social protection, including social security and healthcare; social advantages; education; access to and supply of goods and services which are available to the public, including housing.39

The actions taken by the French government during the Roma expulsions of 2010 should be read to include a violation of the provision requiring equal access housing. It may also include other violations of the RED since it was the supposed race/ethnic identifijication of the Roma that led to their expulsion, and they were being denied access to education, employment, social advantages, etc... within France by virtue of their expulsion. In addition to the clear legal basis for Commission action against France, it would also have made clear that the RED would be enforced when member states engage in violations of the principle of equal treatment. In addition to the RED, the Charter of Fundamental Rights and the free movement directive both include non-discrimination clauses that protect individuals from discrimination by member states based on supposed ethnic/racial identity. As the preamble to the free movement directive notes, citing the Charter,

38

Article 14 of Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin.

39

Article 3, Ibid.

155

156

Chapter 6 – Jacqueline S. Gehring This Directive respects the fundamental rights and freedoms and observes the principles recognised in particular by the Charter of Fundamental Rights of the European Union. In accordance with the prohibition of discrimination contained in the Charter, Member States should implement this Directive without discrimination between the benefijiciaries of this Directive on grounds such as sex, race, colour, ethnic or social origin, genetic characteristics, language, religion or beliefs, political or other opinion, membership of an ethnic minority, property, birth, disability, age or sexual orientation. 40

Under this part of the free movement directive, France clearly violated the law by targeting Roma in particular for expulsion. Commission Vice-President Reding agreed with this interpretation, initially saying that the Commission would begin infringement proceedings based on the discriminatory application of the free movement directive. 41 Reding emphasized that the French expulsion of Roma was not a minor offfence… After eleven years of experience with the Commission, I go even further: this is a disgrace… Discrimination on the base of ethnic origin or race has no place in Europe. It is incompatible with the values on which the European Union is founded. 42

Despite these strong statements, after the French government rescinded its memo targeting the Roma in particular, the Commission did not pursue infringement proceedings for discrimination. Why did the Commission not pursue France for its violations of the Charter, the anti-discrimination protections in the free movement directive, or of the RED? It is not because the Commission would have been unsuccessful in pursuing the claim before the European Courts. Although there has been little opportunity for the European Court of Justice (ECJ) to decide cases about racial discrimination 40

Directive 2004/38/EC of Teh European Parliament and of the Council on the Right of Citizens of the Union and Their Family Members to Move and Reside Freely Within the Territory of the Member States, 2004, (L 158) 86, http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:200 4:158:0077:0123:en:PDF.

41

Reding stated, “I am personally convinced that the Commission will have no choice but to initiate infringement procedures against France on two grounds. First for a discriminatory application of the Free Movement Directive, and second […] for lack of transposition of the procedural and substantive guarantees under the Free Movement Directive.” “EU’s Reding Loses Patience with France on Roma,” EurActiv.com, September 14, 2010, http://m.euractiv. com/details.php?aid=497770.

42

Ibid.

Roma and the Limits of Free Movement in the European Union

thus far, it did rule in Belgian Centre for Equality and Against Racism v. Feryn (2008) that discrimination against “immigrants” as a class when hiring violated the racial equality directive. It seems likely that if faced with a case such as the French expulsion, where there is written documentation that the expulsions targeted Roma, the ECJ would also rule against France under the anti-discrimination law of the EU. The Commission is also in a much better position to bring such a case than individual Roma afffected by the French expulsions. Most Roma expelled from France were made homeless by their expulsion and have few resources, making it difffijicult to fijind legal representation. Their precarious residency also makes it difffijicult for NGOs willing to seek legal redress to maintain relationships with their clients. This reinforces the need for the Commission to make use of its ability to initiate infringement proceedings, since the Commission “has a special advantage for enforcing directives because these cases against a state do not have to be brought by individuals who may not have the time, money, or opportunity to enforce their rights.” 43 The Commission has been widely criticized for its unwillingness to pursue France for violating racial anti-discrimination norms. For example, Patten argues that [c]hallenging France under the Racial Equality Directive, instead of only the Free Movement Directive, would have set a stronger example for other Member States that discriminatory law enforcement policies, especially under the guise of border protection, will not be tolerated in the EU. 44

Indeed, stronger action by the Commission would have sent a more convincing message to member states who evade European law. Why then did the Commission choose to not pursue infringement proceedings against France based on racial discrimination? The answer to this question is, in part, the same as the answer to the broader question of this chapter, and as such, will be answered below where the Commission’s decreasing powers and resources are discussed. In this section, however, I identify three reasons why the Commission chose to avoid proceeding with its accusations of racism against France. These reasons are specifijic to the politics of racism and discrimination in Europe. First, the Commission backed down from pursuing France for discrimination because of how controversial the claim became after Reding compared the French expulsions to the Second World War. 45 The use of WWII as a reference emphasized 43

A. Patten, “Empty Human Rights Lip Service,” The Student Appeal Law Journal (November 8, 2011), http://thestudentappeal.com/immigration/empty-human-rights-lip-service.

44

Ibid.

45

V. Reding, “Statement on the Latest Developments on the Roma Situation.”

157

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both the seriousness of the French actions, but also undermined the Commission’s position because such comparisons are incredibly controversial in continental Europe. Second, France also reminded other member states who see the Roma as a problem that European action would impact them as well. 46 In this situation, if the Commission had pursued France for discrimination, it may have created a serious rift not only with France, but with other powerful member states who also wish to exert control over Roma migrants. Finally, one impact of the Commission’s actions that is often overlooked by those who demanded strong action against France based on anti-discrimination law, is that such action may not have improved the lives of victims of discrimination. Indeed, a number of scholars have noted that Roma fear backlash from member state governments when those governments face sanctions from the EU for poor treatment of the Roma. 47 The Right to Free Movement and Residence The free movement of people is one of the fundamental freedoms of the European Union. In fact, “for 48% of European citizens, the right to move and reside freely in the European Union is the most important citizens’ right.” 48 The growing appreciation for the right of free movement and residence reflects the increasing legal protections for the right that have developed over the last twenty-fijive years. From the free movement provisions of the Treaty of Paris (1951) and Treaty of Rome (1957), 49 to the Schengen Agreement in 1985, to the European Directive on free movement and resi-

46

S. Carrera and A. Atger, L’Affaire Des Roms: A Challenge to the EU’s Area of Freedom, Security and Justice (Centre for European Policy Studies, September 2010), http://www.ceps.be/ book/l%E2%80%99affaire-des-roms-challenge-eu%E2%80%99s-area-freedom-securityand-justice.

47

P. Vermeersch, “Between Europeanisation and Discrimination: The Roma as a Special Policy Focus of EU Policy,” in Romani Mobilities in Europe: Multidisciplinary Perspectives (University of Oxford, 2010), 228, http://academos.ro/sites/default/files/biblio-docs/845/romani_mobilities_in_europe.pdf#page=226; J. Goldston, “Roma Rights, Roma Wrongs,” Foreign Affairs, March 1, 2002, http://www.foreignaffairs.com/articles/57821/james-a-goldston/romarights-roma-wrongs.

48

EUROPA - Press Releases - Special Eurobarometer: Right to Move and Reside Freely in the EU and Right to Good Administration Are the Most Important Citizens’ Rights, July 7, 2011, http://europa. eu/rapid/pressReleasesAction.do?reference=EO/11/14&format=HTML&aged=1&language =EN&guiLanguage=en.

49

W. Maas, Creating European Citizens (Lanham, MD: Rowman & Littlefield, 2007).

Roma and the Limits of Free Movement in the European Union

dence of 2004 (2004/38/EC), the EU has acted to increase citizens ability to exercise their right to free movement.50 The 2004 directive was a major development in the right to free movement and residence which had been primarily limited to workers. It included a positive effort to “encourage citizens… to exercise their right to move and reside freely and to introduce a new right of permanent residence.” 51 Most importantly, it introduced clear procedures to protect citizens from unlawful expulsion from member states. In particular, only if one presents a threat to “public policy, public security, or public health” can one be expelled. Furthermore, such expulsion can only occur after “judicial and administrative review.” In addition, the offfijicial review process must fijind that the expulsion is based on the “personal conduct” of the individual concerned and that their conduct represents a “sufffijiciently serious and present threat.” If expelled, individuals receive one month to leave the country.52 The Commission has been clear in its communication with the member states that these rules prevent “automatic expulsions” which “are not allowed under the Directive.” 53 Despite these rules, “[o]ne certainty of the French expulsion policy rises above all others: it targeted an ethnic group. There were no individualized assessments.” 54 Overall the right to free movement and residence has been well respected by member states. Despite worries about an influx of eastern European workers to the west,55 the full opening of borders to the free movement of people in Europe has been successful. This may be because the free movement of workers was gradually 50

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 Reside Freely Within the Territory of the Member States, 2004, http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CONSLE G:2004L0038:20040430:EN:PDF.

51

EUROPA Summaries of EU legislation, “Right of Union Citizens and Their Family Members to Move and Reside Freely Within the Territory of the Member States,” November 28, 2009, http://europa.eu/legislation_summaries/internal_market/living_and_working_in_the_ internal_market/l33152_en.htm.

52

Ibid.

53

European Commission, “COM(2009)313/4 on Guidance for Better Transposition and Application of Directive 2004/38/EC on the Right of Citizens of the Union and Their Family Members to Move and Reside Freely Within the Territory of the Member States.,” April 4, 2011, http://archive.equal-jus.eu/721/.

54

Bennett, “Please Don’t Be Our Guest: The Roma Expulsion from France Under European Union Law,” 243.

55

The ‘Polish plumber’ campaign in France provides an introduction to the fear felt by some Western Europeans about the possible ‘invasion’ of Eastern European workers. See E. Sciolino, “Unlikely Hero in Europe’s Spat: The ‘Polish Plumber’,” The New York Times, June

159

160

Chapter 6 – Jacqueline S. Gehring

implemented due to restrictions placed on workers from eastern Europe by some western member states. Workers from eastern Europe do face discrimination in employment, housing and schooling,56 but the vast majority of migrants from eastern Europe have been allowed to exercise their rights to free movement and residence. The Commission has also been active in monitoring the transposition of the 2004 directive, pursuing a number of states for improper transposition of the directive. For example, the Commission has issued a reasoned opinion against the Czech Republic for requiring EU citizens to present a certifijicate of accommodation in the Czech Republic when applying for EU residence documents.57 Despite the Commission’s active enforcement of the directive generally, it has failed to stop the mass expulsion of Roma from a number of EU member states. Member state expulsions of Roma target the Roma as an ethnic/racial group. They are often undertaken to increase political support since the Roma are often painted as easy scapegoats for society’s ills. These expulsions, and related anti-Roma measures, are clearly in violation of European law. Yet, the Commission has failed to pursue formal enforcement procedures against those member states which violate European law. This chapter proceeds with an examination of the Commission’s response to the forced expulsions of Roma from France in the summer of 2010. It will describe how the Commission initially reprimanded France for its violation of European law, but then later backed down when France pushed back against the Commission’s interference. The Commission ended its investigation of France confijident that the appropriate measures were being taken to protect all European citizens. Despite the changes made by France to its formal laws, expulsions of the Roma continued, undisturbed by the changing of the government from President Sarkozy to President Hollande. The European Commission has warned France that it will investigate new violations, but as of this publication the expulsions continue.58 The chapter will conclude by investigating why the Commission did not respond more strongly to France or work more vigilantly to guarantee the right to free movement for Roma European citizens in practice.

26, 2005, sec. International / Europe, http://www.nytimes.com/2005/06/26/international/ europe/26poland.html. 56

See van Riemsdijk, and Johns, this volume.

57

EUROPA - Press Releases - Free Movement: Commission Upholds EU Citizens’ Rights, January 26, 2012, http://europa.eu/rapid/pressReleasesAction.do?reference=IP/12/75&format=HTML&a ged=0&language=EN&guiLanguage=en.

58

“EU Says Monitoring France over Wave of Roma Expulsions,” Reuters (Paris, August 10, 2012), http://www.reuters.com/article/2012/08/10/us-france-roma-eu-idUSBRE87912S20120810.

Roma and the Limits of Free Movement in the European Union

The EU and the 2010 French Expulsions of Roma Despite the protections introduced by the free movement directive in 2004, citizens of the EU who are Roma were, and as of this publication date continue to be, expelled from many member states in violation of the requirements of the directive. The most egregious example of such violations is the French government’s expulsions of the Roma during the summer of 2010. The government, in leaked memos, directed its administrators to specifijically target the Roma for expulsion without individualized administrative review.59 Although the summer of 2010 brought press coverage to the issue in France, the expulsion of Roma was, and continues to be, a widespread practice throughout a number of western European countries. In France alone, over 10,000 Roma were expelled the year before the European Union intervened.60 Once media attention was brought to the expulsion of Roma from France in 2010, both the European Parliament and the European Commission became involved in investigating the legality of France’s actions. The Parliament quickly issued a resolution that denounced the actions in France and demanded that other European bodies intervene in order to halt France’s expulsions of Roma. The Parliament specifijically criticized the Commission, noting that its response had been “late and limited” and that “as guardian of the Treaties” it should be more active in “verify[ing] the consistency of member states’ actions with EU primary law and EU legislation.”61 The Parliament’s reprimand of the Commission reflected its own limitations, since it does not have the power to enforce the Community’s laws itself. Instead, all enforcement must originate from within the Commission. The limited enforcement powers of the Parliament immunize member states from its rebuke, and underscore how co-equal legislating power is not co-equal power within the EU. After the Parliament’s resolution, the European Commission responded sharply to the French violation of the free movement directive. Vice President of the Commission and Justice Minister Reding issued a statement declaring that she was personally “appalled” by the expulsion in France. She went on to enrage the French

59 60

“La circulaire visant les Roms ‘très probablement illégale’.” S. Erlanger, “Expulsion of Roma Raises Questions in France,” The New York Times, August 19, 2010, sec. World / Europe, http://www.nytimes.com/2010/08/20/world/europe/20france. html.

61

S. Carrera and A. F. Atger, L’Affaire Des Roms: A Challenge to the EU’s Area of Freedom, Security and Justice (Centre for European Policy Studies, September 2010), 10, http://www.ceps.be/ book/l%E2%80%99affaire-des-roms-challenge-eu%E2%80%99s-area-freedom-securityand-justice.

161

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Chapter 6 – Jacqueline S. Gehring

leadership with her opinion that she “thought Europe would not have to witness [such actions] again after the Second World War.”62 She concluded that No Member State can expect special treatment, especially not when fundamental values and European laws are at stake. This applies today to France. This applies equally to all other Member States, big or small, which would be in a similar situation. You can count on me for that.63

Even though many celebrated Reding’s strong words as a clear and decisive response from the EU, the real impact of the statements is much less clear. On the one hand, it was very important to hear a European offfijicial with regulatory authority clearly identify the French expulsions as contrary to fundamental values and European laws. On the other hand, Italian and Spanish leaders flaunted the Commission’s rebuke, coming out in support of the French expulsions. French leaders seized upon Reding’s reference to World War Two and claimed they were unfairly being made an example by a politically motivated Commissioner. They even went so far as to call a meeting of selected member states on September 6th to discuss the challenges faced by states receiving large groups of migrants. As Carrera and Atger note, the “Ministries of Interior from Germany, Greece, Italy, the UK, Spain and Belgium, as well as the Canadian immigration minister… convened to Paris… [as participants in] ‘the antiRoma summit.”64 The summit was just one way in which France “‘caricaturized’ the competences held by the Commission in enforcing EU law.”65 After this show, the French government altered its policies to legally comply with the Commission’s demands of non-discrimination and promised to implement the proper administrative review process required by the free movement directive. Despite these actions the government also continued to harass and evict Roma migrants. Although Reding had claimed that it would be “important that not only the words change, but also the behaviour of the French authorities,”66 the Commission was placated by France’s assurances that it had stopped specifijically targeting Roma based on their ethnicity, and that it would fully transpose the free movement directive quickly. Proposed infringement proceedings against France were dropped as

62

V. Reding, “Statement on the Latest Developments on the Roma Situation,” September 14, 2010, http://www.cir-onlus.org/SPEECH-10-428_EN%5B1%5D.pdf.

63

Ibid.

64

Carrera and Atger (2010), 12.

65

Ibid, 2.

66

Reding, (2010).

Roma and the Limits of Free Movement in the European Union

they and 15 other member states, including Italy, were determined to be committed to fully transposing the law “swift[ly].”67 In August 2011, the Commission formally claimed victory in its interactions with France and in its implementation of the free movement directive with respect to the Roma. Justice Minister Reding declared that “thanks to continued political pressure,” it “has achieved concrete results.”68 Reding went on to declare I am satisfijied that a majority of Member States have fully implemented the EU free movement rules. I expect the remaining countries to do so quickly. The European Commission will remain very vigilant until all Member States fully address the Commission’s legal concerns.69

She then went on to remind member states that the Commission will continue to monitor the implementation of the law stating that Last summer’s events were a wake-up call for Europe. The Commission will not hesitate to speak out if Member States do not properly apply this fundamental right, notably the procedural safeguards that protect EU citizens from facing arbitrary or disproportionate expulsion.70

Despite the Commission’s declaration of improved implementation of the Directive on Free Movement, forced expulsions of Roma in Europe by France and other member states have continued until the date of this publication. In particular, many member states have not fully implemented proper processes for expulsion. Instead, some member states use cash payments to encourage individuals to voluntarily leave the country 71, or task local governments with enacting expulsions. Although local governments are bound by European law, their actions are often easier to hide from scrutiny. Although these expulsions do not comply with European law, little action has been taken against the offfending member states.

67

European Commission, EUROPA - Press Releases - Free Movement: Determined Commission Action Has Helped Resolve 90% of Open Free Movement Cases, August 25, 2011, http://europa.eu/ rapid/pressReleasesAction.do?reference=IP/11/981&format=HTML&aged=0&language=E N&guiLanguage=en.

68

Ibid.

69

Ibid.

70

Ibid.

71

For example, although it received significantly less publicity than the French expulsions, in 2009 Germany paid Roma to leave the country.

163

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Governments have also begun to evict Roma from their homes without formally expelling them from the country in order to encourage them to move to other member states. For example, the European Roma Right Center (ERRC) has documented the eviction of over 2000 Roma in France and Italy in the month of August 2011 through these less direct means.72 As Malini observes about the evictions in Italy, The strategy is clear and simple: Rather than forcing someone on the airplane, authorities keep demolishing gypsy camps so that eventually Roma people have no place to go and leave the country.73

Thus, despite Commission declarations otherwise, Roma continued to be targeted by multiple member state governments for eviction based on their race/ethnicity. The Commission’s public confijirmation of member state compliance not only undermines its own legitimacy as a protector of European citizenship rights, but also denies the reality of discrimination faced by Roma migrants throughout Europe. Despite the problematic reality of on-going, racially and ethnically driven, expulsions of Roma migrants, many observers celebrated the Commission’s response to the French expulsions. As Parker suggests, [i]n many respects, the Commission seemed to come out of the row with the French government rather well, with praise heaped upon Commissioner Reding by media and NGOs for daring to tackle a large member-state on a question of fundamental rights.74

Indeed, it would appear that many nongovernmental actors were pleased the Commission had taken such a public stand against France, even if it was unable to guarantee full compliance with the free movement directive. This reaction underlines both the relatively weak position that minority groups claiming rights against powerful member states hold, as well as the limited expectations, and actual powers, of the Commission when confronting powerful member states. To imagine the Commission’s actions as ‘daring,’ suggests that it is surprising for the Commission to do its job (to guarantee the implementation of European law) as defijined by the treaties of the European Union. It is also a reflection of the hopes 72

“No Place for Roma: French and Italian Authorities Aggressively Evict Roma - ERRC.org,” European Roma Rights Center, August 11, 2011, http://www.errc.org/cikk.php?cikk=3922.

73

R. Malini, cited in A. Momigliano, “In Italy, Local Politics Appears to Drive Latest Round of Roma Gypsy Expulsions,” Christian Science Monitor, October 13, 2010, http://www.csmonitor.com/World/Europe/2010/1013/In-Italy-local-politics-appears-to-drive-latest-round-ofRoma-Gypsy-expulsions.

74

Parker, (2012), 480.

Roma and the Limits of Free Movement in the European Union

of those who want the Commission to be more active in protecting European citizenship and fundamental rights. Indeed, the celebration of the Commission’s public rebuking of France highlights the Commission’s decrease in power within the EU over the last twenty years. The Commission’s failure to pressure states about the practical implementation of the law emphasizes the Commission’s relative weakness. ‘Practical implementation’ refers to the full implementation of European law on the ground, including complete compliance with European rules not only on paper, but in action. Practical implementation would require a number of member states to change their free movement policies on the ground. Practical implementation is seriously under-regulated by the Commission and is a major problem for the legitimacy of European rules. The Commission has said it will follow up with the practical implementation of the right to free movement, evaluating the “application of the Directive’s provisions in all Member States,”75 yet such oversight has rarely been uniformly or vigorously pursued in other policy areas. An alternative view of the Commission response to the French expulsions suggests that the Commission is working behind the scenes, garnering member state commitments to a stronger European Roma strategy. For example, Dawson and Muir suggest that there may be an implicit compact between the Commission and France (as well as other EU Member States)—legal proceedings may be halted, but only in the context of a concerted efffort to create a more efffective, and better resourced, pan-European strategy to address the root of the problem, i.e. the social and economic exclusion of the Roma peoples. In this sense, far from being a neutral procedure, that ensures the enforcement of European law by an independent enforcer, power games may be playedout within the informal stages of the enforcement procedure itself.76

Such an analysis fijits with the Commission’s general approach to infringement proceedings which is to always fijirst try to achieve member state compliance without pursuing formal action. In fact, at each stage of the process the Commission allows member states to show compliance and rarely continues infringement proceedings when a member state has resolved the violation of Community law. Dawson and Muir see this slow process, which Carrera and Atger criticize as the central problem

75

European Commission, EUROPA - Press Releases - Free Movement: Determined Commission Action Has Helped Resolve 90% of Open Free Movement Cases.

76

M. Dawson and E. Muir, “Individual, Institutional and Collective Vigilance in Protecting Fundamental Rights in the EU: Lessons from the Roma,” SSRN eLibrary (April 1, 2011), http:// papers.ssrn.com/sol3/papers.cfm?abstract_id=2009872.

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with the Commission’s reaction to the Roma expulsion crisis in France, as essential because it becomes a starting point for open-ended dialogue on how violations of EU law, including fundamental rights, can be addressed proactively, and leaves it open to political manipulation and ‘horse-trading’.77

Dawson and Muir go on to suggest that such a backroom agreement was in fact reached. During the French expulsion crisis, the Commission not only criticized France in its Communications on the crisis, but also highlighted its emerging Roma strategy. Dawson and Muir suggest that these statements imply “agreements between the Commission and the Member States to take more intensive measures to facilitate the integration and socio-economic improvement of Roma minorities.”78 In light of Dawson and Muir’s analysis of the ‘hidden’ negotiations during the French expulsion crisis one must ask if it is possible that the Commission’s response to the French expulsion crisis has led to a better situation for Roma in Europe. Have the backroom deals led to a greater protection of fundamental rights, or an improved socio-economic standing for the Roma? Will they do so in the future? There have been promising advances made by the Commission towards an EU strategy for improving the lives of the Roma. In April 2011, the Commission adopted the EU Framework for National Roma Integration Strategies up to 2020 that “addresses Roma inclusion for the fijirst time at EU level and clearly links it with the Europe 2020 strategy.”79 As part of the framework, the Commission now requires each member state to have a ‘National Roma Integration Strategy.’ The implementation of this strategy will be evaluated annually by the Commission for the Parliament and Council. Importantly, the Commission recognizes the limited impact mere legal compliance with, and not practical implementation of, the Roma Strategy will have. The Commission emphasized that legislation alone is not enough: Member States need to develop and implement an integrated and sustainable approach that combines effforts across diffferent areas, including education, employment, health and housing.80

Such statements will make it more likely that member states will fulfijill their responsibility to implement the Roma Strategy, but theses statements will not be 77

Ibid.

78

Ibid.

79

European Commission, COM(2012) 226 Final.

80

Ibid.

Roma and the Limits of Free Movement in the European Union

enough to guarantee implementation from member states which actively resist the Commission’s role in this policy area. An additional reason why the Commission has prioritized the Roma Strategy is because it is hoped that by linking it to the larger Europe 2020 agenda, member states will feel more compelled to implement the strategy. The Commission emphasizes the importance of the Roma Strategy to the overall success of the Europe 2020 agenda repeatedly, noting that three out of fijive Europe 2020 headline targets are directly linked to the EU Framework targets for Roma inclusion: the fijight against poverty and social exclusion, raising employment levels, and reducing school drop-out while increasing attendance in tertiary education.81

It also suggests that for some member states, failure to improve the situation of the Roma will coincide with failure to achieve central Europe 2020 goals noting that for Member States with a larger Roma population making sufffijicient progress towards the Europe 2020 employment, social inclusion and education targets will require addressing explicitly and swiftly the situation of the Roma.82

The Commission expects that these effforts will “contribute to making a real difference in the lives of the Roma population.” In order to guarantee that occurs, the Commission encourages member states to “focus on implementation based on action plans with specifijic measures commensurate with Roma inclusion targets, supported by a clear timetable and appropriate funding.”83 The Commission’s ambitious positioning of the Roma inclusion targets as central elements of successful achieving of Europe 2020 keeps the Roma on the policy agenda for member states. How seriously member states take the commitments enshrined in the Roma strategy, however, is less clear. Europe 2020 is based on the model of the Lisbon 2010 Strategy, but there is much debate over the efffectiveness of the Lisbon approach in achieving substantive goals.84 Although the Commission’s framework may improve the lives of some European Roma, member states may also ignore it or comply with it on paper alone. There are no sanctions for states that do 81

Ibid.

82

Ibid.

83

Ibid.

84

S. Borrás, “The Politics of the Lisbon Strategy: The Changing Role of the Commission,” West European Politics 32, no. 1 (2009): 97–118; D. Papadimitriou and P. Copeland, eds., The EU’s Lisbon Strategy: Evaluating Success, Understanding Failure (Palgrave Macmillan, 2012).

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not meet the goals of Roma framework. Thus, in many ways the Roma framework is an important test of the Commission’s ability to achieve politically unpopular goals through non-coercive mechanisms. It seems like a poor compromise, however, to garner member state commitment to unenforceable goals instead of guaranteeing practical implementation of fundamental rights. Whether or not the rights to free movement and residence are upheld impact not only the Roma involved, but all European citizens who hope to exercise rights that are unpopular with powerful member states. The Commission’s decision to not to protect the right to free movement and residence for the Roma may have actually highlighted the Roma as diffferent and other, implying they lack full European citizenship. As O’Nions notes, the Commission’s limited proceedings against France may have actually “contributed to the stigmatization of Roma across Europe and could be seen as helping to fuel the fijire of racism in the newer member states.”85 Overall, one can see the Commission’s response to the expulsion crisis in France as very similar to its public shaming of Italy for fijingerprinting Roma in 2008. In Italy the government undertook a “Roma census” requiring Roma to submit to fijingerprinting so that the government might have more accurate identity information. Many Roma activists see the Italian fijingerprinting census as part of a larger anti-Roma campaign in Italy, where state and local offfijicials have also been active in dismantling Roma camps and in expelling Roma. One Italian activist argues that the fijingerprinting of Roma in Naples, Rome and Milan within a forced, humiliating census has been nothing more than a step forward in the long process over the years towards “eliminating Gypsies” from the Italian territory, as was proposed by Treviso’s former Mayor Giancarlo Gentilini in September 2008 during a speech in public. 86

The fijingerprinting was also heavily criticized by other European-level bodies such as the Council of Europe and the European Parliament which urged the Commission to verify the legality of Italy’s actions.87 In both cases European rules were being violated, yet, despite public outrage and the European Parliament’s condemnation of the activities, the Commission ended up backing down from formal legal action. In the Italian case, the Commission decided that the fijingerprinting was being done 85 86

O’Nions, (2011), 381. P. Colacicchi, “Ethnic Profiling and Discrimination Against Roma in Italy: New Developments in a Deep-Rooted Tradition,” Roma Rights Journal no. 2 (2008): 43, http://www.errc. org/cms/upload/media/03/B8/m000003B8.pdf.

87

“Italy Rebuke on Roma Fingerprints,” BBC, July 10, 2008, sec. Europe, http://news.bbc.co.uk/2/ hi/7500605.stm.

Roma and the Limits of Free Movement in the European Union

in such a way that did not violate Community law, while in the French case it was satisfijied with the changes France made to its laws and procedures. What explains the Commission’s problematic follow through in punishing violations of the rights of Roma citizens, and guaranteeing their equality in Europe? In order to answer this question, the next section takes up two elements limiting the power of the Commission: increasing member state pressures and limited enforcement capabilities. I argue that the Commission faces barriers in enforcing all of European law, especially laws that are unpopular with powerful member states. I then conclude that because most European states do not want to be forced to accommodate Roma migrants, member states have put signifijicant pressure on the Commission to not follow up with enforcement of the right of free movement and residence. This examination contributes to debates about EU inter-institutional relations, and the extent to which the EU is driven by member state interests or acts as a more supranational body. Challenges to the European Commission The response of the Commission to the violation of European law by France in the 2010 Roma expulsion crisis must be understood within the framework of interinstitutional power relations between the Commission, European Parliament, the Council of Ministers, and the member states of the European Union. Despite once being the driving force of European integration, in the last two decades the Commission has become a victim of his own success. Ever since Jacques Delors’s term of leadership from 1984-1994, the Commission has become a less powerful actor in inter-institutional politics. The Commission’s subsequent decline can be attributed largely to the assertiveness of the Member States, (excessively) concerned to entrench their autonomy and limit that of the Commission… The Member States have limited the Commission’s power and responsibilities … refused to make available to the Commission the human resources necessary for it to carry out its existing responsibilities, and challenged how it exercises its prerogatives.88

Indeed, the Commission’s failure to require the full protection of the right to free movement and residence for the Roma can best be explained by the Commission’s decreasing power, and its lack of resources. In light of the changes made since the Delors Commission, actors in the Commission must be wary of how member states will respond to a Commission that uses its enforcement powers in politically unpop88

H. Kassim and A. Menon, “The Commission as an Actor,” in D. G. Dimitrakopoulos, ed., The Changing European Commission(Manchester University Press, 2004), 90.

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ular ways. The unpopularity of the Roma throughout Europe, and the political ramifijications of publicly supporting their plight, makes it unlikely that enough member states would be willing to support Commission action. Instead, it seems much more likely that“[t]he Member States’ assertiveness, their determination to circumscribe the Commission’s power and impose their control”89 has left the Commission in a difffijicult position when it comes to securing the practical implementation of the free movement directive. Thus, in light of the limitations placed on the Commission by member states, it should not be surprising that the Commission did not pursue France for infringement after France promised to make the required legal changes to comply with the free movement directive. The Commission’s standard operating procedure for pursuing violations of European of law can also help to explain the Commission’s willingness to give France time to change its policies. Indeed, such a response is typical of its approach to other non-compliance problems across policy areas. As a general rule, the Commission prefers pursuing compromise to garner implementation. As Tallberg notes the shared interest to avoid costly and resource-consuming litigation provides for an environment highly hospitable to bargaining… negotiated solutions have therefore become a prominent way of closing infringement cases.90

Such compliance is often measured by transposition since measuring transposition is less labor intensive than measuring on-the-ground practical implementation. Although this method often leads to reasonable levels of compliance in many policy areas, it is unclear if it can guarantee efffective implementation of fundamental European rights when member states are highly committed to resisting European law. The Commission has a signifijicant amount of experience negotiating settlements with France as it is one of the worst formal compliers with European law. France frequently improperly transposes and implements European law for two key reasons. First, because of its position as one of the most powerful member states, France can often get away with its non-compliance. As Boerzel notes, powerful member states like France often “rely on their ability to resist enforcement pressure.”91

89

Ibid., 102.

90

J. Tallberg, “Paths to Compliance: Enforcement, Management, and the European Union,”

91

T. A. Börzel et al., “Obstinate and Inefficient: Why Member States Do Not Comply With

International Organization 56, no. 3 (Summer 2002): 617. European Law,” Comparative Political Studies 43 (2010): 1383, http://www.stevendroper.com/ eu%20law.pdf.

Roma and the Limits of Free Movement in the European Union

Second, France’s large and inefffijicient bureaucracy makes it difffijicult for France to comply quickly with European rule changes.92 The timing of compliance is an important factor in infringement proceedings since the vast majority of infringement claims against member states are made over improper transposition of European directives into member state law.93 Infringement cases against countries for improper ‘practical implementation’ of European law are signifijicantly less likely to occur because there is very little offfijicial follow up by the Commission after the transposition process.94 Instead, the Commission depends on complaints lodged by NGOs (such as the ERRC), businesses, everyday citizens and other actors as well as formal legal action brought against state administration within member state courts. This dependence largely reflects the Commission’s own limitations and puts the cost of guaranteeing compliance on those harmed by the violation of European law. The issue of practical implementation is an important issue for disadvantaged groups such as the Roma who seek to be protected by European law, since it is so easy for states such as France and Italy to comply on paper with European directives while continuing to act illegally. As Versluis notes, “[w]hen directives are ‘only’ transposed into national legislation, while they are not applied in practice, the usefulness of legislation becomes questionable.”95 One may wonder why, with the ERRC continuing to document the problems in practical implementation of the free movement directive, the Commission has not pursued further investigations or infringement proceedings. The answer may be not only that the Commission must fijirst focus on transposition, but also that its limited resources, and the political pressure such an action may generate, are powerful deterrents to practical implementation of the right to free movement and residence. One possible way for the Commission to overcome its limited resources would be to increase the number of regulations, as opposed to directives, in European law. The Commission has argued that better compliance with EU law could be achieved if regulations were used instead of directives because it would increase “legal certainty across the Union.” This position has been criticized by some scholars as ignoring practical implementation.96 Yet, a shift to regulations could improve the Commission’s enforcement capabilities. If more European laws were regulations, the Commission could free up signifijicant resources it currently uses to monitor the 92

Ibid.

93

Tallberg (2002).

94

E. Versluis, “Even Rules, Uneven Practices: Opening the ‘Black Box’ of EU Law in Action,”

95

Versluis (2007), 64.

96

Ibid., 64.

West European Politics 30, no. 1 (January 2007): 50–67.

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transposition of European directives. This would allow the Commission to use those resources to pursue investigations of practical implementation instead. Such a move would certainly improve the likelihood that the Commission would more fully enforce the right to free movement, but it is doubtful that member states would give up the power over policy implementation that directives grant them. It is also questionable whether member states want the Commission to monitor the implementation of European law more closely, especially in sensitive policy areas like free movement and residence. In addition to the decreasing institutional power of the Commission and its limited resources, there is another explanation for why the Commission has not pursued the full implementation of the right to free movement and residence more strongly. Commission employees themselves are often conflicted about what the role of the Commission should be in European policymaking and enforcement, especially when there is signifijicant member state resistance. Hooghe argues that “nearly three out of ten Commission offfijicials” (28.9%) are “‘institutional pragmatists’ because they side-step institutional battles with the Member States.”97 When combined with the 13.5 percent of Commission offfijicials who favor state interests in Commission v. member state showdowns, it is clear that strong divisions exist within the Commission about how its powers should be exercised when in conflict with strong member state interests.98 This internal conflict over Commission and member state relations, may explain, in part, why the Commission is less likely to pursue action against France and Italy when those states highly politicize the issue of Roma migration. Overall then, there not only “ remain signifijicant questions as to whether the Commission is able to act independently of the interests of these big-players [France, Germany, Italy],”99 it also is not clear that the offfijicials in the Commission would always choose to act in such a manner. Conclusion: Free Movement for Some In conclusion, the European Commission has been successful in achieving the proper transposition of the free movement directive in most of the member states of the European Union, but has been signifijicantly less successful guaranteeing proper implementation on the ground. The weakness in the practical implementation of the right to free movement and residence for Roma reflects a multitude of challenges faced by the Commission, including its eroding power within the Union, the limits 97

L. Hooghe, “Images of Europe: How Commission Officials Conceive Their Institution’s Role,” JCMS: Journal of Common Market Studies 50, no. 1 (2012): 105.

98

Ibid., 93.

99

O’Nions (2011), 381.

Roma and the Limits of Free Movement in the European Union

placed on its budget and stafff by member states, and the political pressure it faces when attempting to promote the rights of the Roma in particular. Overall, most member states are not committed to improving the plight of the Roma, including the powerful “old’ western member states. Even if the Commission did not face concerted political opposition to the full implementation of the right to free movement, the institutional constraints it faces in achieving practical implementation are signifijicant. The right to free movement has largely been implemented for the majority of Europeans. Yet, the right to free movement, in practice, truly only exists for some. When some member states are allowed to restrict the rights of a class of European citizens based primarily on their race/ethnicity, the equality and universal nature of European citizenship must also be called into question. Such limitations may begin to undermine European legitimacy if they become more widespread. For those whose right to free movement and residence are abridged because of their race/ethnicity there is limited hope that the Commission will be able to remedy their experiences alone. As Carrera and Atger argue, “the Roma afffair in France demonstrates the limitations of these enforcement mechanisms in providing a swift and depoliticized response to national measures whose compliance with EU law and fundamental rights remains questionable.”100 One alternative for Roma, and similarly situated rights-holders may be pursuing their rights claims in the courts. Writing about the limits placed on freedom of movement and residence of eastern Europeans immediately after the 2004 accession, Carrera and Guild propose that confronted by the resistance and potential illiberal practices of certain Member States, one of the key recourses available in the EU legal system for the afffected individual to claim and enforce fundamental rights (and have access to ‘efffective remedies’) is indeed before Community Courts on the basis of the rule of law.101

Litigation via member state courts may be more efffective in bringing compliance with the directive, but will be difffijicult to achieve because of the precarious nature of those being expelled. It will require impoverished and often un-educated individuals who have been made homeless through eviction to fijind an attorney. Lawyers taking such cases must have independent fijinancial backing and specialized training. Since cases under European law must fijirst be brought in member state courts, successful appeals will also require highly independent judges willing to refer cases 100

Carrera and Atger (2010) 3.

101

S. Carrera and E. Guild, “The French Presidency’s European Pact on Immigration and Asylum: Intergovernmentalism Vs. Europeanisation? Security Vs. Rights?,” SSRN eLibrary (September 11, 2008): 21, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1333530.

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to the European courts. When such cases are brought it may take years before fijinal rulings are made. Finally, even with rulings in favor of the Roma, the law must be enforced at the member state and local level, where most violations of the free movement right have occurred. As an institution, the Commission emerges from the 2010 French expulsion crisis in much the same position as it did going into the controversy. Dawson and Muir suggest that the Roma dispute illustrates an evolution of the EU’s role from a passive enforcer of negative obligations vis-à-vis fundamental rights to a more pro-active role, in which anti-discrimination becomes a fully fledged EU policy, enforced through a complex governance architecture.102

While I, on the other hand, am less optimistic, I am nevertheless not as pessimistic as O’Nions who argues that “the Commission, by burying its head in the sand, has been exposed as less than efffective in its fijirst real human rights test.”103 Instead the contemporary Commission continues to be an institution that is no longer as powerful as it once was, but that still has an important role to play in the efffective implementation of EU law. The future ability of the Commission to efffectively secure implementation of European policy, especially in the area of fundamental rights, remains uncertain. The fact that French resistance to the Commission was efffective in forestalling the Commission from enforcing the right to free movement does not bode well for future citizens whose rights are abused by strong member states. It is especially troubling for citizens such as the Roma, who are the most marginalized and need the protection of European rights the most.

102

Dawson and Muir, (2011).

103

O’Nions, (2011), 388.

7.

Ethnic Return Migration, Selective Incentives, and the Right to Freedom of Movement in Post-Cold War Greece Harris Mylonas

Introduction1 What is the state’s logic in engineering the settlement of certain groups of repatriated co-ethnics but not others? In particular, why did the Greek state become involved with the settlement of the Greeks from the former Soviet Union in Thrace in the 1990s but not those from Albania? Moreover, why did the Greek state shift its policy toward the Greeks from the former Soviet Union in 2000 to one of gradated help for settlement across Greece? These are important questions both from a human rights perspective but also for comparative politics. I consider various answers to these questions ranging from ethnic afffijinity and decentralization policies to foreign policy concerns. This chapter is part of a broader book project on managing diasporas in which I focus on the policies that states develop to cultivate links with, attract back, or integrate diaspora members in their country of origin, allegiance, or citizenship.2 1

I would like to thank for their helpful comments Roxana Barbulescu, Sakis Gekas, Fani Keramida, Willem Maas, Elpida Vogli, Scott Weiner, and the participants of the conference “Free Movement and Discrimination: The European Union in Comparative Perspective”, organized by the European Union Centre of Excellence, the Jean Monnet Chair, and the Glendon College Office of the Principal at York University, Toronto, in November 2011.

2

In my state-centric framework, the term diaspora refers to citizens of a state who have emigrated with an intention to live abroad, their descendants, as well as people that are scattered abroad but fit the definition of nationhood of that state and have not fully assimilated into another society, and their descendants. In this definition, members of a diaspora do not have to act as co-ethnics while they are residing abroad. In fact, national states often consider communities that have never lived in the purported homeland or do not keep ties with that homeland as their diaspora. At times a state’s official definition of its

Willem Maas (ed.), Democratic Citizenship and the Free Movement of People Copyright 2013 Koninklijke Brill NV. ISBN 978-90-04-24327-9 pp. 175-193

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A subset of these policies includes ‘repatriation’ or ‘ethnic return migration’ policies (see fijigure 1). Here, I study the Greek state policies toward diffferent repatriate groups in the 1990s and challenge the very defijinition of the right to ‘freedom of movement’. When scholars discuss violations of ‘freedom of movement’ they usually refer to cases of legal restrictions on the enjoyment of this human right or to criminal activities, such as trafffijicking. Beyond legal restrictions and criminal activities, however, an argument can be made that ‘freedom of movement’ may also be violated through selective incentives and special privileges that attempt to engineer the settlement of certain groups within a country. I argue that the Greek state’s goal was to influence the settlement pattern of these people in order to serve national interests. Labour market opportunities, however, seem to have a greater impact on settlement patterns than selective incentives put in place by the Greek administration. Contrary to the conventional wisdom from labour economics, the Greek government did not consider the skills of these people and as a result, the goals of decentralization and national homogenization of certain peripheral areas did not materialize. Figure 1. The Field of Study Migration Policy

Diaspora policy

Ethnic return migrants

Repatriation policy

Return migrants

Repatriated refugees

Understanding the politics of ethnic return migration is consequential for the social sciences but also from a policy perspective. From a theoretical point of view, it is diaspora is less inclusive than the definition above. In my book project I try to discern when this is part of a conscious policy or just neglect. For a genealogy of the term diaspora, see R. Brubaker, “The ‘Diaspora’ Diaspora,” Ethnic and Racial Studies, 28 (2005): 1-19.

Ethnic Return Migration, Selective Incentives, and Freedom of Movement

hard to understand the politics of migration without understanding the politics of ethnic return migration. It is common to discuss the increased mobility of humans across borders;3 this mobility creates diasporas but also involves return migrants, new labour migration, international tourism, and illegal migration. Migration policy broadly defijined involves the various ways states regulate human mobility across international borders. In this sense, both diaspora as well as repatriation policies are subsets of a state’s migration policy. Diaspora policy overlaps with a state’s repatriation policy and is often intertwined with the overall migration policy. 4 For example, if a state can rely on the repatriation of its co-ethnics rather than on foreign immigrants for its labour needs then this will afffect its immigration policy. In fact, immigration policy may be inversely related to ethnic return migration policy; the stricter the fijirst, the more generous the second. To be sure, immigration policy is a function of a variety of factors ranging from domestic politics,5 foreign policy considerations, to trade agreements and investment opportunities. Without an understanding of the phenomenon of ethnic return migration, however, we cannot come up with more integrated migration policy theories. Turning to the policy relevance, the connection between development and return migration has been established in the social science literature.6 In previous work I have demonstrated the national security and geostrategic reasons for repatriating co-ethnics in states that aim at changing their ethnic balance in favour of the core group.7 Moreover, as traditional countries of emigration develop economically, 3

GCIM. Migration in an Interconnected World: New Directions for Action (Geneva: GCIM, 2005).

4

Gamlen defines diaspora integration as “the ways in which government institutions in the home country extend more or less formal rights and obligations to emigrants and their descendants,” see A. Gamlen, “New Zealand and its diaspora,” In A. Trlin, P. Spoonley & R. Bedford (Eds.), New Zealand and international migration: A digest and bibliography (Auckland, New Zealand: Massey University Press, 2010), pp. 104-135, 124.

5

M. M. Howard, The Politics of Citizenship in Europe (Cambridge: Cambridge University Press,

6

See for example J. Brinkerhoff, editor, Diasporas and Development: Exploring the Poten-

2009). tial (Boulder, CO: Lynne Rienner Publishers, 2008); R. King, editor, Return Migration and Regional Economic Problems (Dover, NH: Croon Helm, 1986). 7

H. Mylonas, “Explaining Variation in Ethnic Return Migration Policies” (paper presented at the LUCE-PIIRS workshop on Comparative Approaches to Immigration and Religious and Ethnic Diversity, Princeton University, May 11-12, 2012); H. Mylonas and E. Vogli, “Hellenes are...Incorporation Strategies toward Co-Ethnic Repatriate Groups in Contemporary Greece (1990-2006),” in Immigrants and Minorities: Discourse and Policies, ed. Μ. Pavlou & Α. Skoulariki (Athens: Vivliorama/KEMO (Research Center for Minority Groups, 2010).

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we are probably going to observe waves of return migration and repatriation from poor host states to richer homelands. Such waves appeared at diffferent points following the Second World War in Greece, Italy, Ireland, Spain, Finland, Japan and so forth. From a human rights perspective, understanding the policies of ethnic return migration is important both because such policies often signifijicantly vary across the various diaspora groups of a country and because certain groups of co-ethnics are often treated better than citizens who are not co-ethnics. This chapter focuses on a particular tension between human rights—in this case the right to freedom of movement—and selective incentives and privileges granted to certain groups of coethnics as part of a state repatriation policy. But what do we gain by focusing on variation within a European state? Firstly, we would expect that liberal democracies would be the most sensitive to the protection of fundamental human rights, the right to freedom of movement being one of these rights. To become a European Union member state, a country must be a liberal democracy. Secondly, we get to problematize a baseline expectation in the literature, namely that co-ethnics are more likely to be treated favourably in Europe than other parts of the world. For example, Skrenty et al. comparing ethnic return migration policies in Asia and Europe fijind an instrumental economic logic explaining their persistence in the former and ethnic afffijinity and/or protection of persecuted co-ethnics in the latter.8 In their view, Europe’s favouritism based on bloodbased kinship is an end in itself in Europe but seems to be a means to an end in Asia. The fijindings of this cross-regional comparison inform my focus on variation within Europe and provide me with some baseline expectations about Greek state policy. While it is true that part of the favourable policies that were put in place for the Greeks from the former Soviet Union can and have been justifijied on the basis of ethnic afffijinity and nationalism; as I show below, this explanation cannot account for either the lack of such treatment toward other Greek repatriate groups or for the specifijic settlement pattern that the Greek administration wanted to achieve.

8

J. Skrentny, S. Chan, J. E. Fox, and D. Kim, “Defining Nations in Asia and Europe: A Comparative Analysis of Ethnic Return Migration Policy,” in Diasporic Homecomings: Ethnic Return Migration in Comparative Perspective, ed. T. Tsuda (Stanford, CA: Stanford University Press, 2009), 44-72.

Ethnic Return Migration, Selective Incentives, and Freedom of Movement

Theory: Ethnic Return Migration and the Right to Freedom of Movement Ethnic Return Migration Despite the production of important comparative work on ethnic return migration policies in the past decade, 9 we are still in need of a better conceptualization of the main variables of interest and lack a theoretical framework that accounts for the crossnational variation. As early as 1974, Bovenkerk complained not so much about the lack of work on return migration and repatriation but rather the lack of ‘communication between various authors’.10 In 2004, Stefansson pronounced that “return movements across time and space have largely been ignored in anthropology and migration research”,11 and this is still the case in political science. Existing theories explaining migration policy look at repatriation policies as part of the general immigration policy of a state or do not discuss it at all.12 In many European citizens’

9

For some comparative works on variation in return migration/repatriation policy beyond two cases, see R. King, editor, Return Migration and Regional Economic Problems (Dover, NH: Croon Helm Publishing, 1986); L.D. Long and E. Oxfeld, editors, Coming Home? Refugees, Migrants, and Those Who Stayed Behind (Philadelphia, PA: University of Pennsylvania Press, 2004); C. Joppke, Selecting by Origin: Ethnic Migration in the Liberal State (Cambridge, MA: Harvard University Press, 2005); L. Remennick, Russian Jews on the Three Continents: Identity, Integration, and Conflict (New Brunswick, NJ: Transaction Publishers, 2007); T. Tsuda, editor, Diasporic Homecomings: Ethnic Return Migration in Comparative Perspective (Stanford, CA: Stanford University Press, 2009); O. Shevel, Migration, Refugee Policy, And State Building in Postcommunist Europe (New York, NY: Cambridge University Press, 2011).

10

F. Bovenkerk, The Sociology of Return Migration: A Bibliographical Essay (The Hague, Netherlands: Martinus Nijhoff Publishers, 1974), acknowledgments.

11

A. Stefansson, “Homecomings to the Future: From Diasporic Mythographies to Social Projects of Return,” in Homecomings: Unsettling Paths of Return, ed. F. Markowitz and A.H. Stefansson (Oxford, UK: Lexington Books, 2004), 3.

12

For instance, Rudolph has suggested that the structural security environment impacts immigration policies but also that at the same time the patterns of international migration influence national security priorities of states. But his theory was not calibrated to account for repatriation policy per se, see C. Rudolph, National Security and Immigration: Policy Development in the United States and Western Europe Since 1945 (Stanford, CA: Stanford University Press, 2006). Similarly, Bernstein and Weiner do not include the terms ‘repatriation’ or ‘return migration’ in their Index, see A. Bernstein and M. Weiner, Migration and Refugee Policies: An Overview (New York: Pinter Publishers, 1999).

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minds ‘repatriation’ is currently closely associated with state policies to send illegal immigrants and refugees back to their country of origin.13 There is also a lot of work on the causes of return migration suggesting as the most likely explanations the relative economic growth between the ‘homeland’ and the host country,14 distance from the homeland and time away,15 legal problems and/ or discrimination in their host country,16 desire to return to the homeland, and fijinally homeland policies attempting to attract co-ethnics abroad.17 Similarly, anthropologists have meticulously studied the identity struggles experienced by repatriates,18 economists have studied their economic and labour market integration, and sociologists, historians, and political scientists have studied resettlement experiences and government plans either in one society or comparing a few cases.19 All in all, there is little systematic work on state policies—both at home and abroad—diffferentially 13

It is characteristic that in a recent inter-coder reliability exercise that I conducted with citizenship and migration studies experts in Europe more than 10% interpreted my question in this manner despite the fact that I defined the term explicitly in my communication with them. For more on this process see M. Coenders, M. Lubbers, and P. Scheepers, “Support for Repatriation Policies of Migrants Comparisons Across and Explanations for European Countries,” International Journal of Comparative Sociology 49 no. 2-3 (2008): 175–194.

14

R.I. Crane, “Urbanism in India”, American Journal of Sociology 60 (1955): 463-470; E. Miller, “Return and Non-Return In-Migration,” Growth and Change, 4 no. 11 (1973): 3-9; J. Vanderkamp, “Labour Migration as a Positive Factor in the Continuity of Tonga Tribal Life,” in Social Change in Modern Africa, ed. A.W. Southall (London: Oxford University Press, 1972), 230-242; M. Klinthäll, “Immigration, Integration, and Return Migration” (paper presented at the International Symposium on International Migration and Development, Population Division, Department of Economic and Social Affairs, United Nations Secretariat, Turin, Italy, June 28-30 , 2006).

15

T.H. Hollingsworth, Migration. A study based on Scottish experience between 1939 and 1964 (Edinburgh, Oliver & Boyd, 1970); Vanderkamp (1972).

16

H. Mylonas, The Politics of Nation-Building: Making Co-Nationals, Refugees, and Minorities (New York: Cambridge University Press, 2012); F. Keramida, “The way to the homeland: a ‘repatriated’ migrant’s life story,” Oral History, Volume 27, no. 1 (March1999): 75-85; R.B. Davison, Black British: Immigrants to England (London: Oxford University Press, 1966).

17

Bovenkerk (1974), 20-25; Klinthäll (2006); T. Tsuda, Strangers in the Ethnic Homeland: Japanese Brazilian Return Migration in Transnational Perspective (New York: Columbia University Press, 2003).

18

F. Markowitz and A. H. Stefansson, editors, Homecomings: Unsettling Paths of Return (Oxford, UK: Lexington Books, 2004).

19

D. Conway and R. B. Potter, Return Migration of the Next Generations: 21st Century Transnational Mobility (Burlington, VT: Ashgate Publishing Company, 2009).

Ethnic Return Migration, Selective Incentives, and Freedom of Movement

targeting the various diasporic communities. State policies toward these communities are the focus of my work. Thus state policy may be targeting diasporas abroad, repatriated refugees, return migrants, or ethnic return migrants.20 The most prominent historical cases involving the ‘return’ of co-ethnics living in the diaspora to their ‘homeland’ include: the Aussiedler policy in Germany following World War II,21 the movements during and after the partition of British Colonial India in 1947, Israel during the second half of the twentieth century,22 and the movements following the disintegration of Yugoslavia and the USSR.23 However, the phenomenon is much more common than these cases indicate and can take widely diffferent forms from the examples above.24 Repatriation refers to both forced and voluntary population movements. It includes Europeans returning to their homelands after unsuccessful attempts to emigrate, such as to the United States,25 as well as refugees arriving in Greece and Turkey fol-

20

In the latter cases, there is a high risk that these groups may end up being treated as ethnic minorities by their ‘homeland’. J. Clifford, “Diasporas,” Cultural Anthropology 9 no. 3 (1994): 302-338; Tsuda (2009), 11; T. Dragostinova, Between Two Motherlands: Nationality and Emigration among the Greeks of Bulgaria, 1900-1949 (Ithaca, NY: Cornell University Press, 2011).

21

Amanda Klekowski von Koppenfels, “Aussiedler Migration to Germany: Questioning the Importance of Citizenship for Integration,” paper prepared for the Alumni Conference Common Global Responsibility, Working Group 4: Migration Issues Washington, DC, 6-9 November 2003; J.B. Schechtman, European Population Transfers, 1939-1945 (New York: Oxford University Press, 1946); P. Ahonen et al, People on the Move. Forced Population Movements in Europe in the Second World War and Its Aftermath (Oxford, UK: Berg Publishers, 2008).

22

S. Gold, “Israeli Emigration Policy,” in Citizenship and Those Who Leave: The Politics of Emigration and Expatriation, ed. N. L. Green and F. Weil (Chicago, IL: University of Illinois Press, 2007), 283-304.

23

Shevel (2011).

24

For some work on repatriation policy beyond these cases, see N.P. Glytsos,“Problems and Policies Regarding the Socio-Economic Integration of Returnees and Foreign Workers in Greece,” International Migration 33 no. 2 (1995): 155-174; O. Arowolo, “Return Migration and the Problem of Reintegration,” International Migration 38 no. 5 (2000): 59-80; H. Kulu, “Policy towards the Diaspora and Ethnic (Return) Migration: An Estonian Case,” GeoJournal, 51 (2000): 135-143; J.E. Fox, “From National Inclusion to Economic Exclusion: Ethnic Hungarian Labour Migration to Hungary,” Nations and Nationalism, 13 no. 1 (2007): 77-96; A. Parla, “Irregular Workers or Ethnic Kin? Post-1990s Labour Migration from Bulgaria to Turkey,” International Migration 45 no. 3 (2007): 157-179.

25

G. Moltmann, “American-German Return Migration in the Nineteenth and Early Twentieth Centuries,” Central European History 13 no. 4 (1980): 378-392.

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lowing the population exchange of 1923. While in times of war the term refers primarily to the repatriation of prisoners. Very few answers have been proposed in the comparative politics literature on migration to address the within-state variation in policies toward co-ethnics who have decided or are forced to repatriate. Most arguments focus on longitudinal variation over time within states or simply on cross-national variation. In his Selecting by Origin, Joppke suggests that there is a trend from ethnically selective to more non-ethnic and universalistic migration policies. His explanation is based on the incompatibility between liberal ideals and ethnic favouritism. Joppke’s work suggests that migration policies should be ethnically blind and thus, by implication, special migration policies for co-ethnics should be in decline in liberal states.26 Moreover, skills should be more important than ethnic afffijinity in liberal states since the latter should care only about optimizing the benefijits of migration. However, despite this general trend that Joppke identifijies, we still observe important variation across Europe and within states. Joppke does argue elsewhere that right wing governments are more likely to pass favourable legislation for co-ethnics abroad as opposed to favourable legislation for immigrants,27 but this still leaves us with limited insight with respect to the variation across diffferent groups of co-ethnics within the same state. Aktürk identifijies three types of states when it comes to the relationship between citizenship and nationality. According to Aktürk if a state seeks to restrict membership in the nation to one ethnic category only through discriminatory immigration and naturalization policies, then it has a ‘monoethnic’ regime… If a state accepts people from ethnically diverse backgrounds as citizens (membership) but discourages or even prohibits the legal, institutional, and public expression of ethnic diversity (expression), then it has an ‘antiethnic’ regime… If a state accepts people from ethnically diverse backgrounds as its citizens (membership) and allows, encourages, or even participates in the legal and institutional expression of ethnic diversity (expression), then it has a ‘multiethnic’ regime.28

This variation in regimes of ethnicity in turn is explained by diffferent legacies of past rule. Thus we should fijind multiethnic regimes of ethnicity in Post-Communist states, antiethnic in Western and Muslim-majority states, and, monoethnic in German-influenced Western states. Pushing Aktürk’s work a bit further we can say 26

Joppke (2005).

27

C. Joppke, Citizenship and Immigration (Cambridge, UK: Polity Press, 2010).

28

S. Aktürk, “Regimes of Ethnicity Comparative Analysis of Germany, the Soviet Union/PostSoviet Russia, and Turkey,” World Politics 63 no. 1 (2011), 118-119.

Ethnic Return Migration, Selective Incentives, and Freedom of Movement

that a monoethnic regime is likely to have generous repatriation policy for co-ethnics, while anti-ethnic and multi-ethnic regimes are unlikely to have any repatriation policy. But Aktürk’s work cannot account for variation across diffferent groups of repatriates within the same state. Shevel focuses on the divergent repatriation policies followed by postcommunist Russia and Ukraine toward what she calls non-traditional refugees or compatriot refugees. She argues that the degree of agreement among the main political elites over the defijinition of the nation is crucial in the process of deciding policy.29 States should be distinguished between those where the salience of the politics of national identity is high, contested states, and those where it is low, uncontested states. In countries where the defijinition of the nation is contested we need to study how the struggle is resolved. If elites reach a consensus defijinition of the nation then we get a generous repatriation policy for co-ethnics. If compromise has to be reached, then “no refugee group […] can count on preferential treatment in state policies”.30 In uncontested states, where the salience of the politics of identity is low, repatriation policies concerning co-ethnics will depend on the preferences of the elites in charge.31 Sherman emphasizes ‘crises of legitimacy’ as the main reason behind periods of ‘introversion’ vs. periods of ‘extension’ in repatriation policy.32 Gamlen builds on her work and suggests his own explanation for the expansion or contraction of what he calls the “emigration state regime”.33 According to Gamlen, the expansion of policies is a function of joint pressure from diaspora groups and the international organizations promoting the ‘migration and development’ motto. The contraction is a product of what he calls ‘territorial’ factors, which include tensions between the homeland’s residents and its diaspora, the unwillingness of the diaspora to keep ties with their purported homeland, and the disapproval of the receiving state of any attempts of the homeland to cultivate links with or attract back diaspora members. And of course, last but not least, the homeland’s lack of capacity can and often is responsible for the absence of such policies. However, both Sherman’s and Gamlen’s frameworks, while useful, are focused on the national level variation and are not calibrated in a way that could explain variation in state policy toward diffferent diaspora subgroups in the same period. 29

Shevel (2011).

30

Shevel (2011), 12.

31

Shevel also takes into account the role of UNHCR in this process, but for our purposes this

32

R. Sherman, “From State Introversion to State Extension in Mexico: Modes of Emigrant In-

variable is not as relevant. corporation 1900-1997,” Theory and Society, 28 (1999): 835-78. 33

A. Gamlen, “Diasporas,” in A. Betts (Ed.), Global Migration Governance (Oxford, UK: Oxford University Press, 2010), 266-286.

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Clearly, structural variables such as the size of the diaspora group that is likely to repatriate—which in turn is often endogenous to the relative level of economic development between the country of origin and the country of emigration—also matter for policy planning. But variation exists even within the subcategory of countries that have similarly large diasporas and are relatively developed. Most importantly from the perspective of this chapter, important variation exists within states and across potential groups of repatriates. Using the term ‘repatriate’ for these groups is often counterintuitive since many of these people have never lived in their ‘homeland.’34 This practice is not new, for instance the Greek state has been following a two-pronged strategy in terms of citizenship since its founding, based on a combination of birthright and Christian faith within its borders and ethnic origins when it came to determining citizenship for potential members abroad—a necessary part of Greece’s irredentist policy during the nineteenth century.35 This is akin to the cases of Jews ‘repatriating’ to Israel, Germans from eastern Europe ‘repatriating’ to Germany and so forth.36 Thus, ethnic return migration is a special category of repatriation involving people that are seen as members of the nation irrespective of whether they have ever lived in their ‘homeland’. Turning to my empirical case study of post-Cold War Greek repatriation policies we identify one major puzzling variation. During the late 1980s and into the 1990s large numbers of Greeks from the former Soviet Union and Albania moved to Greece. The Greek state, an EU member state since 1981, followed diffferent policies toward the Greeks from Albania and those from the former Soviet Union. This was the fijirst time in its modern history that Greece was transformed from a country of emigration to a receiving country.37 Some of the co-ethnics abroad were actively encouraged and assisted by the Greek authorities while others decided to return 34

F. Keramida,“‘Repatriates’ or ‘Refugees’ and other vexed questions: The resettlement of Pontian Greeks from the former Soviet Union in Greece and the politics of policy discourse,” Studi Emigrazione, Volume 39, no. 145 (March 2002): 231-259; M. Vergeti, Palinostisi kai Koinonikos apokleismos [Repatriation and Social Exclusion] (Thessaloniki: Kyriakides, 2006); E. A. Voutira, “Post-Soviet Diaspora Politics: The Case of the Soviet Greeks,” Journal of Modern Greek Studies 24 no. 2 (October 2006): 379-414.

35

E. Vogli, “The Making of Greece Abroad: Continuity and Change in Modern Diaspora Politics of a ‘Historical’ Irredentist Homeland,” Nationalism and Ethnic Politics, 17 no. 1 (Jan-Mar 2011): 14-33.

36 37

Ahonen et al (2008); Schechtman (1946); Gold (2007). X. Petrinioti, I Metanastefsi pros tin Ellada. Mia proti katagrafi, taxinomisi kai analysi [Migration to Greece: A First Attempt at Classification and Analysis] (Athens: Odysseas & IDIS, 1993), 11-50, 90-95; L. Ventoura, Metanasteusi kai Ethnos. Metashimatismoi stis Syllogikotites kai tis

Ethnic Return Migration, Selective Incentives, and Freedom of Movement

on their own. State authorities called the ones from the post-Soviet space ‘repatriates’ (palinnostountes) while the ones from Albania were referred to as ‘expatriates’ (apodimoi). The Greek government and relevant Ministries drafted a host of favourable laws and decrees for the Greeks from the former Soviet Union but largely ignored or even discouraged the Greeks from Albania. As I have shown elsewhere this was largely because the Greeks from the Soviet Union were seen as ‘nationally useful’ in Greece but the Greeks from Albania were seen as more useful—from a foreign policy perspective—abroad.38 In particular, the Greek state—and specifijically the Ministry of Foreign Afffairs—wanted to preserve a Greek minority in Albania as a useful asset in its foreign policy and at the same time wanted to use the Greeks from the former Soviet Union to economically develop Thrace and change its ethnic demography.39 The Greek minority in Albania—a bordering state to Greece unlike any of the countries of the former USSR—operated as an important bargaining chip in the bilateral relations between Greece and Albania. 40 Thus the Greek state did not follow solely a logic based on the principle of ethnic afffijinity41 or one implying a ‘hierarchy of Greekness’ 42 in order to determine its policy but mainly one of furthering its foreign policy and national security interests. Other important factors that are relevant in this process include the timing in which repatriation takes place and the size of the communities (both held constant in this comparison), the available network of each diaspora sub-group (the Greeks from the former Soviet Union arguably had a more extensive network), and whether the sub-group has been granted electoral rights or not and the extent to which it is exercising them (this latter factor is of course endogenous to the state’s repatriation koinonikes theseis [Migration and the Nation: Transformations in Collectivities and Social Positions] (Athens: Mnimon, 1994). 38

Mylonas and Vogli (2010).

39

F. Keramida, Relocating: Bureaucratic and Migrant Practices Concerning the Resettlement of Pontian Greeks from the Former Soviet Union in Northern Greece (Phd diss., University of Sussex, 2001).

40

Greece and Albania had border disputes in the past, a large groups of Albanians (Chams) claim compensation for material and moral damages from the Greek state in relation to the deportations that took place in the 1940s, and there is a sizable Albanian immigrant group in Greece, see Mylonas and Vogli 2010: 388-389; E. K. Manta, Muslim Albanians in Greece. The Chams of Epirus (1923 - 2000) (Thessaloniki: IMXA, 2008).

41

D. Kokkinos, “The Reception of Pontians from the Soviet Union in Greece,” Journal of Refugee Studies 4 no. 4 (1991): 395-399; Ethniko Idryma Ypodohis kai Apokatastaseos Pallinostounton Omogenon Ellinon. Ekthesi Pepragmenon [Report of Proceedings] (Athens: EIYAPOE, 1996).

42

A. Triantafyllidou and M. Veikou, “The Hierarchy of Greekness. Ethnic and National Identity Considerations in Greek Immigration Policy,” Ethnicities 2 no. 2 (2002): 189-208.

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policy). Once a repatriate group is deemed as nationally useful at home then electoral dynamics and patronage politics enter the picture. Importantly the National Foundation for the Reception and Resettlement of Repatriated Ethnic Greeks,43 the main Greek organization responsible for repatriation operating under the supervision—if not direction—of the Ministry of Foreign Afffairs, changed its policy during the period from 1992 to 1994 in such a way that it would discourage the repatriation of more Greeks from the former Soviet Union. The reasons behind this policy change were both the shortage of adequate funds to continue the housing projects and the realization that there may be important economic and trade benefijits from keeping a signifijicant diaspora in the former Soviet space. This policy shift, on top of the variation in the treatment versus the Greeks from Albania, corroborates the geostrategic elements in the Greek repatriation policy over the pure ethnic afffijinity or even the more instrumental ‘hierarchy of Greekness’ one. All in all, the argument is that some sub-groups of the diaspora of a state are seen as nationally useful at home and others abroad. This in turn accounts for the variation in legal defijinitions/designations as well as the incentive structures for repatriation put in place for each group. In the empirical section of this chapter, I focus on the population from the former Soviet Union; in particular, those who participated in the Repatriate Policy Program. These people of Greek descent were displaced or moved from the Ottoman Empire or the newly established Turkish state at the turn of the twentieth century and then many of them were internally displaced by Stalin. This efffort to repatriate Greeks from the Soviet Union had started during the 1980s but signifijicant numbers of repatriates arrived only after 1989 because of the prohibition on emigration common in all Communist states. A signifijicant proportion of these people had fled conflict zones and could thus be called refugees. 44 The right of freedom of movement of these people obviously had already been violated since they were driven out of their homes. It is this special set of conditions surrounding their repatriation and the settlement and integration policies followed by the Greek state that raise issues related to the right to free movement. 43

The acronym in Greek was EIYAPOE (Ethniko Idryma Ipodohis kai Apokatastatis Omogenon Ellinon). At the time it was also referred to as “the Foundation”. For more on its organizational structure see Keramida (2001), Appendix 2.

44

E. Voutira, “Pontic Greeks Today: Migrants or Refugees?” Journal of Refugee Studies 4 no. 4 (1991): 400-420; N. Marantzidis and G. Mavroudi, “Neglected Sons of Nationalism: ‘Repatriated Refugees’ in Greece and in Germany,” Central European Political Studies Review, Part 2-3 6 (Spring-Summer 2004); P. Diamanti-Karanou, “Migration of Ethnic Greeks from the Former Soviet Union to Greece, 1990-2000: Policy Decisions and Implications,” Southeast European and Black Sea Studies, 3 no. 1 (2003): 25-45, 27-28.

Ethnic Return Migration, Selective Incentives, and Freedom of Movement

Freedom of Movement According to the Universal Declaration of Human Rights (1948) and the International Covenant on Civil and Political Rights (1966) the right to freedom of movement and residence within each state is protected. 45 Moreover, within the European Union the right to freedom of movement is one of the fundamental rights guaranteed by its treaties. 46 The right to freedom of movement within the European Union refers to the right of citizens of member states—and their family members—to move and settle freely within the borders of these states. To be sure, there are restrictions on the right to free movement on grounds of public policy, public security or public health. Thus, when scholars discuss violations of ‘freedom of movement’ they usually refer to cases of legal restrictions in the enjoyment of this human right or to criminal activities, such as trafffijicking. Beyond legal restrictions and criminal activities, however, an argument can be made that ‘freedom of movement’ may also be undermined through selective incentives and privileges linked to settlement in a specifijic area of the country. Clearly, repatriates have had to exercise their right to free movement in order to leave their country of residence and/or citizenship and ‘return’ to their homeland. 47 In that sense, there is no restriction to their rights. A state can in fact allow the repatriation of certain groups of co-ethnics attaching certain conditions to this move. This in itself is not a restriction in the right to free movement. However, once we take a closer look into the matter and explore the conditions and regulations surrounding a ‘return’, important questions arise. For instance, as I describe in more detail below, the Greek state facilitated the repatriation of a large group of Greeks from the former Soviet Union while requiring their settlement in certain areas of East Macedonia and Thrace. From a legal point of view it is the right of a state to make repatriation conditional on a certain type of settlement within the homeland. But when the housing, education, and integration policies catering to the needs of these repatriates are tied to the settlement of a specifijic area of a country it makes one wonder how realistic it is to expect that the benefijiciaries can actually exercise the right to free movement within the borders of their homeland. In other words, you may be legally allowed to move freely within 45

UN declaration of Human Rights, Available at: http://www.un.org/en/documents/udhr/ ; International Covenant on Civil and Political Rights, Available at: http://www2.ohchr.org/ english/law/ccpr.htm.

46

Europa portal, Available at: http://europa.eu/legislation_summaries/justice_freedom_security/free_movement_of_persons_asylum_immigration/index_en.htm.

47

I use quotation marks for the word return since most of these repatriates have never actually lived in any part of the modern Greek state.

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the boundaries of a state and settle anywhere you like, but for a repatriated refugee the exercise of this right is far from available. The combination of this special category of newly minted citizens who have ‘repatriated’—often fleeing from a war zone or from poverty and destitution—and the policy of the homeland that intends to settle this group in a specifijic area of the country in order to improve its national security and economic development in that area produce a particularly problematic situation. While technically and legally free to move, these repatriates are obliged to stay in the designated areas in order to be eligible to participate in the specially designed programs aimed at their integration in their new home. Thus, given the emergency conditions under which repatriation often occurs and the inability of these repatriates to affford housing, fijind jobs, and in many cases learn the language of the ‘homeland’, the right to free movement becomes an empty letter of the law rather than a realistic prospect. It is in this light that the settlement policies pursued by the Greek state—and other states as well— toward repatriates can be construed as hindering the exercise of the right to free of movement. Empirics: Freedom of Movement and the Greeks from the former Soviet Union Let us now take a closer look at the right to freedom of movement within the borders of a European Union member state, Greece. Before 1985 only about 528 Greeks had repatriated from the Soviet Union—despite the Greek government’s attempts to attract repatriates under a generous program orchestrated by the Agricultural Bank of Greece in 1982. 48 Following the fall of the Berlin Wall and the signs of the Soviet Union’s collapse, however, the numbers increased dramatically. For example, 17,277 ethnic Greeks in 1991 and 25,633 in 1993 ‘returned’ to Greece—11% and 17% of the total number that ultimately repatriated by the end of the 1990s respectively. By 1999, approximately a total of 150,204 people had repatriated from the former Soviet Union to Greece. 49 The majority of these ethnic Greeks (78,156 or 52% of the total) came from Georgia, which experienced intense ethnic conflict in the early 1990s. The second and the third place were taken by Kazakhstan (31,268 or 21% of the total) and the Russian Federation (22,280 or 15% of the total) respectively. As I discussed above, the 48

Keramida reports: “in the 1980s…the Greek state (through its Consulate in Moscow) invited Greeks in the then Soviet Union who held Greek passports to come to their national homeland for permanent settlement.” The goal was to attract about 10,000 people to resettle in Thrace but the program managed to attract only 1,200 people (2001), 42.

49

Karanou citing work by Anthemidis (2003), 31.

Ethnic Return Migration, Selective Incentives, and Freedom of Movement

Greek government viewed—at least initially—the Greeks from the former Soviet Union as a national asset that could invigorate Thrace both economically and demographically.50 The policy mix that Greece followed in order to materialize these expectations is what raises issues related to the right to free movement for this population. Unlike the Greeks from Albania—who moved at will albeit with an ambiguous status—the Greeks from the former Soviet Union were eligible for special housing loans and free land, among other special integration programs. Since 1990, the National Foundation for the Reception and Settlement of Expatriate and Repatriate Greeks (EIYAPOE) had been responsible for the housing needs of the Greeks from the former Soviet Union across the country and built new housing projects in Thrace.51 This foundation (aka the National Foundation) had been under the supervision of the Ministry of Foreign Afffairs.52 As Iacovou, then the President of the Foundation and later Minister of Foreign Afffairs in Cyprus, put it in a report “with Governmental directive, the Foundation is implementing its Program only in Thrace, for all those fulfijilling the requirements for permanent settlement”, thus those that have been certifijied as ‘repatriates’. Of course, the great concern of the Greek government was that if these people did not 50

For more on the Greek national interest in the region see Keramida (2001); Athens Academy, I Anaptyxi tis Thrakis [The Development of Thrace] (Athens: Athens Academy, 1995); L. Papagiannakis et al, Dinatotites paragogikon ependiseon stin Anatoliki Makedonia kai Thraki [Possibilities for productive investments in Eastern Thrace] (Athens: METEK-Emporiki Trapeza, 1986); Greek Parliament Proceedings, Report of the Parliamentary Committee on Thrace and Northern Aegean, Period 7 (Z’), Session 2 (B’), February 14, 1992.

51

EIYAPOE was founded by a Presidential Decree on 13 December 1990 implementing article 8 of the Law 1893/90 but formally started functioning on 1 January 1991. The first executive board meeting took place on 13 February 1991. It ceased its operations on March 2003 with the law 3072/2002. See: http://users.otenet.gr/~eiyapoe/skopos.htm

52

EIYAPOE (1996). In 1994 the General Secretariat for Repatriated Greeks (Geniki Grammateia Palinnostounton Omogenon) was created within the Ministry of Macedonia-Thrace and joined the integration efforts made by the National Foundation. For more on its action see: General Secretariat for Repatriated Greeks, H Taftotita ton Palinnostounton Omogenon apo tin proin E.S.S.D. [The Identity of the Repatriating Greeks from the Former USSR] (Thessaloniki: Ministry of Macedonia and Thrace; General Secretariat for Repatriated Greeks, 2000); General Secretariat for Repatriated Greeks, Ta Kyriotera Haraktiristika ton Omogenon apo tis Hores tis Proin Sovietikis Enosis stous polyplithesterous nomous tis Elladas [Major Characteristics of the Repatriated Greeks from the Countries of the Former Soviet Union in the most demographically dense regions of Greece] (Thessaloniki: Ministry of Macedonia and Thrace, 2001).

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fijind jobs in Thrace they would ultimately decide to move to urban centers. This way, the economic development of the region and the distribution of land (when possible) were necessary components accompanying the housing privileges and the favourable loans provided. In the fijirst half of the 1990s the foundation reached 44,497,203,548 drachmas (a little less than $180 million;53 part of it funded by the Council of Europe) and more than three quarters of it had been spent within that period. In particular, 12,557,045,316 drachmas (more than $50 million) were spent just for the housing projects of the Greeks from the former Soviet Union. The settlement pattern of Greek repatriates from the former Soviet Union around the late 1990s as depicted in the maps produced by the General Secretariat for Repatriated Greeks captured the efffects of the state policy. The Foundation’s effforts had a clear impact on the pattern. With the exception of Thessaloniki and Athens, the two largest cities in Greece, the only other area with such a high concentration of repatriates was East Macedonia and Thrace.54 It is characteristic that, in the fijirst years, Greeks from the former Soviet Union living outside of Thrace could only get a subsidy for rent and nothing more.55 The Foundation’s aim was to provide funding to families who undertook agricultural settlement; the program included subsidized settlement in Eastern Macedonia and Thrace with an immediate fijinancial contribution of 11 million drachmas [$44,000] per family plus an additional 500,000 [$2,000] per child and dependant adult. The loan was 30% interest-free and repayable over 15 years.56 This fijirst phase of the resettlement of the Greeks from the former Soviet Union to Thrace (prior to the 2790/2000 law) was probably the most problematic with respect to the right to freedom of movement. The Greek state had decided where it wanted to construct the housing projects and repatriates had little say in the matter. Moreover, there were legal restrictions in place that made internal movement even more difffijicult, for instance the repatriates could not sell or rent their house. According to Keramida,

53

The conversion rate I am using is from 1993.

54

For a map of the area, see: http://en.wikipedia.org/wiki/File:Periferia_Anatolikis_Makedonias_ke_Thrakis.png.

55

H. Hristodoulou, “O Shediasmos tou Akraiou Astikou kai Periastikou Horou ton Ellinikon Poleon: Thesmiko Plaisio kai Apospasmatikes Poleodomikes Praktikes Stin Peripheria Tis Thessalonikis,” Tehnika Hronika (November-December 2008).

56

E. Voutira, “Ethnic Greeks from the Former Soviet Union as ‘Privileged Return Migrants,’” Espace, Populations, Sociétés, 3 (2004): 533-544, 536.

Ethnic Return Migration, Selective Incentives, and Freedom of Movement the houses, which …were granted to migrants on the basis of a point system, were allotted only for use and remained the property of the Foundation. Thus, migrants owned the house leasehold (chrisidanio) and did not have the right to sell the property or leave it.57

As late as 2010, many repatriates who had participated in the Foundation’s Repatriates Program and had received housing through it still did not own their houses. This was made clear by an announcement issued on 12 November 2010 inviting repatriates to visit the Province of Eastern Macedonia-Thrace and submit applications in order to receive the full ownership of the properties they inhabited. Partially due to the problems experienced by the National Foundation in implementing its plan and accusations about mismanagement, the housing policy changed with the law 2790/2000 and funding was now available across Greece, but with a twist. Selective incentives were put in place in order to influence the settlement pattern of ‘repatriates’. The details of the various favourable measures can be found elsewhere, what is of interest from our perspective is the zoning that was described within the relevant laws. To be sure, the Greeks from the former Soviet Union chose freely where to settle. They moved primarily to urban centres and followed the labour market opportunities and networks of 1922 refugees.58 However, the Greek state had made its intentions quite clear in a law passed in 2000. Diamanti-Karanou describes some of the measures described in this law: “provision of free lots to be used for building houses, free issuance of a building permit, loans and subsidies. An alternative to the provisions for building houses is the subsidized renting project. This latter project includes both the subsidization of rent and the provision of places to rent.” (2003: 42). The important element left outside of this description is the zoning logic guiding these loans and subsidies. As Voutira points out, after the introduction of Law 2790/2000, with the design and promotion of a ‘zoning’ program dividing the country into 4 regions, with the explicit aim of decentralization, through the provision of economic incentives and specifijic privileges depending on 57 58

Keramida (2001), 53. A. Arvanitis and S. Vittoratu, “The Role of the G.I.S. Technology in the Study of Repatriation, The Case of Greece,” UDMS 2000, 22nd Urban Data Management System (Delft, the Netherlands, 2000); A. Arvanitis and S. Vittoratu, “Αn analysis of the geographic relation between the refugee settlements of 1922 and the ‘90s using GIS: the cases of Macedonia Region and Serres Prefecture,” Proceedings of UDMS ‘02, 23rd Urban Data Management Symposium: 30 Years of UDMS Looking Back, Looking Forward (2002). Large groups settled in particular neighborhoods (eg. In the western parts of Thessaloniki) and transformed the architectural style and urban planning of the city.

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In a common press conference in December 1999, the Minister of Foreign Afffairs Papandreou, Deputy Minister of Foreign Afffairs Niotis and the Minister of Macedonia-Thrace Magriotis, clarifijied the logic of the zoning.60 For Zone A, which included the most ‘vulnerable’ areas, land was free and the housing loan’s interest was fully covered by the Greek state. The funding in each other zone dropped by 20% with the smallest help saved for the large urban centres. Again, the Greeks from the former Soviet Union were technically free to move anywhere they liked, but clear incentives were put in place by the Greek authorities for them to move to the most vulnerable areas of the Greek periphery. Despite these favourable measures it is characteristic of the situation that some ethnic Greek migrants from the former Soviet Union opted out of the housing benefijits in Thrace and went directly to the urban centres where they believed that they could fijind employment more easily.61 This is testament to the fact that the right to freedom of movement was in fact available and exercised by many members of this group of repatriates. The argument here is that certain policies of the Greek state and the selective incentives provided for settling in Thrace afffected settlement patterns and may have even hindered the freedom of movement of particularly vulnerable and challenged members of this group of repatriates. Conclusion The Greek state set out in the late 1980s and especially the early 1990s to resettle Greeks from the former Soviet Union primarily in East Macedonia and Thrace. This was done in the context of the collapse of the Soviet Union, the instability in the former Yugoslavia, and the tensions between Bulgaria and Turkey during the late 1980s due to the assimilationist name-changing campaign pursued by Bulgarian president Todor Zhivkov. From the initial policy where the ‘repatriates’ received help 59

Voutira (2004), 536.

60

Common Press Conference of Minister of Foreign Affairs, George Papandreou, Deputy Minister of Foreign Affairs Mr. Grigoris Niotis and the Minister of Macedonia-Thrace Mr. Ioanni Magrioti, Friday December 17 1999. Available at: http://www.hri.org/MFA/gpap/december1999/gpap_niwtis_magriwtis_.html.

61

The Greek state attempted to provide the repatriates in Thrace with land in order for them to engage in agriculture but this population was not agricultural and thus this policy failed.

Ethnic Return Migration, Selective Incentives, and Freedom of Movement

only within Western Thrace, the Greek administration moved to a policy of selective incentives that were unequally distributed across Greece. The aim once again was to influence the settlement pattern of these people. The results were mixed. Indeed there is a high concentration of Greeks from the former Soviet Union in Thrace, but the vast majority resides in the main urban centres. At a more theoretical level, the line between legal restrictions and selective incentives in order to influence a group’s settlement pattern is a fijine one but it exists. Ultimately, the right to ‘freedom of movement’ was not formally violated in this case although there was indeed a period—especially in the early 1990s—when this fact was not as clear. The repatriation policy that the Greek state followed toward the Greeks from the former Soviet Union, in particular through EIYAPOE, attempted to defijinitively influence the settlement pattern of the repatriates that opted to enter their repatriation program. The Greek government, in its attempt to use the Greeks from the former Soviet Union to change the ethnic demography of Thrace and boost its economic development in the same region, linked the right to repatriate itself as well as the privileges that accompanied it with settlement in specifijic locations. Overall, labour market opportunities ended up having a higher impact on the settlement patterns than the selective incentives put in place by the Greek administration. Based on the poor results of this policy, it seems that the Greek government did not take into account the diffferent skills of this group of repatriates in its planning. As a result, the goals of decentralization and national homogenization of certain peripheral areas did not materialize. Ironically, the poor implementation of the program, the dependency developed through the diffferent stages, and the de facto segregation of this population from the rest of the Greek society have probably hindered rather than facilitated their national integration.

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Liberal Democracies’ Divergent Interpretations of the Right of Return: Implications for Free Movement* Megan Bradley

1.1

Introduction

The right of return has long been recognized as a critical liberty, particularly in democratic and democratizing polities. The Magna Carta of 1215 was perhaps the fijirst treaty to explicitly establish a right of return, indicating that “it shall be lawful for any man to leave and return to our kingdom unharmed and without fear, by land or water.” 1 Despite the centrality of this principle to contemporary human rights systems, there is a surprising dearth of literature examining the origins, evolution and implications of this concept. To the limited extent that scholars have probed the right of return, they have tended to focus on the claims of particular refugee groups,

*

I would like to thank the Social Sciences and Humanities Research Council of Canada for a standard research grant that supported this work. I would also like to thank Willem Maas, Michael Barutciski, and the participants in the workshop on Free Movement and Discrimination at Glendon College, York University for their comments. Any errors or shortcomings are my own.

1

For the relevant sections with an introductory note see G. R. C. Davis’s Magna Carta, Revised Edition, British Library, 1989, available at Fordham University, “The Text of Magna Carta”: http://www.fordham.edu/halsall/source/magnacarta.asp (accessed 4 September 2012). It is notable that the article establishing a right of return in the Magna Carta ties this liberty to the interests of the kingdom, a pattern that, I argue, remains evident in liberal democracies’ contemporary interpretation of this right. The right to leave and return in the Magna Carta is limited to times of peace, and is predicated on the individual “preserving his allegiance to us,” and only being absent “for some short period, for the common benefit of the realm.” See also H. Hannum, The Right to Leave and Return in International Law and Practice (Dordrecht: Martinus Nijhoff Publishers, 1987), 3.

Willem Maas (ed.), Democratic Citizenship and the Free Movement of People Copyright 2013 Koninklijke Brill NV. ISBN 978-90-04-24327-9 pp. 195-216

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such as the Palestinians, to return to their homelands.2 However, the right of return is not only relevant to refugees. Rather, it is one of the fundamental human rights norms underpinning free movement, and is enshrined in agreements such as the Universal Declaration of Human Rights (UDHR) and the International Covenant on Civil and Political Rights (ICCPR). Why has the right of return attracted relatively little scholarly attention? Perhaps debate on the right of return has been muted precisely because thousands of people around the world exercise this right every day with relatively little fanfare, when they re-enter their countries after travelling abroad, and return to their homes after moving freely about their own state. The absence of heated debate over the exercise of the right of return in these ‘everyday’ cases testifijies to the considerable traction this norm has acquired, but may have resulted in the concept not attracting researchers’ attention. Equally, researchers concerned with migration and free movement may have overlooked the signifijicance of this principle because of what may be called an ‘outbound bias’ in the migration and freedom of movement literature. It is often assumed that most migrants, especially those coming to the global North from poorer, less democratic countries, have little interest in going back to their countries and communities of origin, and that if they do seek to return, this is a relatively unproblematic undertaking, both practically and theoretically. Ethnographic studies of return movements have challenged this assumption, illuminating the social obstacles to reintegration, and demonstrating that return to a mythologized ‘home’ is not always possible, insofar as countries and communities of origin continue to evolve in the migrant’s absence.3 Political scientists and theorists have not yet met ethnographers’ problematization of return movements with equally robust exploration of the increasingly fraught politics surrounding the exercise of the right of return by those displaced by conflict, human rights violations and

2

On the Palestinian refugees and the right of return, see for example N. Aruri (ed.), Palestinian Refugees: The Right of Return (London: Pluto Press, 2001); R. Khalidi, “Observations on the Right of Return,” Journal of Palestine Studies 21, no. 2 (1992), 29-40; A. Lesch, and I. Lustick (eds.), Exile and Return: Predicaments of Palestinians and Jews (Philadelphia: University of Pennsylvania Press, 2005); Y. Peled and N. Rouhana, “Transitional Justice and the Right of Return of the Palestinian Refugees,” Theoretical Inquiries in Law 5, no. 2 (2004), 317-332; and J. Quigley, “Displaced Palestinians and a Right of Return,” Harvard International Law Journal 39, no. 1 (1998), 171-229.

3

See for example L.D. Long and E. Oxfeld (eds.), Coming Home? Refugees, Migrants and Those Who Stayed Behind (Philadelphia: University of Pennsylvania Press, 2004); and F. Markowitz and A. Stefansson (eds.), Homecomings: Unsettled Paths of Return (Oxford: Lexington Books, 2004).

Liberal Democracies and the Right of Return: Implications for Free Movement

natural disasters, as well as by individual citizens seeking to return to their states after travelling abroad. This chapter aims to expand debate on the complexities of this pivotal human right and its implications for free movement, focusing in particular on how liberal democracies have conceptualized and shaped the implementation of this right by their own citizens, as well as by displaced persons from other countries. It explores trends that have developed over the past twenty years in liberal democracies’ interpretations of the right of return, demonstrating that liberal democracies have embraced a wide range of interpretations of this right, depending on the political considerations at stake. 4 It highlights the inconsistencies that have emerged between the expansive defijinition of this right that liberal democracies have selectively imposed on post-conflict states in order to legitimize the speedy return of displaced populations, and the restrictions liberal democracies such as Canada and the United States increasingly place on their own citizens’ exercise of this right, in the name of upholding security.5 Paradoxically, in some instances expansive interpretations of the right of return may serve as a tool to constrain rather than uphold or increase individual freedom of movement. This analysis is supported with examples of liberal democracies’ divergent interpretations of the right of return in cases including the return of refugees to Bosnia and Herzegovina, and the experiences of Abusfijian Abdelrazik, a Canadian-Sudanese citizen prevented from exercising his right to return to Canada on the basis of unsubstantiated security concerns. This analysis is prefaced with a brief discussion of the emergence and articulation of the right of return as a political claim and a human rights norm. Before embarking on this analysis, a few provisos are needed. First, to the limited extent that the right of return has been studied beyond the Palestinian case, 4

Elsewhere, I have developed a preliminary typology of the diverse ways in which the right of return has been interpreted, focusing in particular on how displaced persons have conceptualized this right. This work suggests that the right of return may be understood variously as a claim to re-enter a state; repossess lost property; be recognized as a legitimate member of the political community of the state; and enjoy freedom of movement. The right of return has also been understood as a claim for the redress of injustice, or as a religious calling or prerogative. These categories are of course not mutually exclusive; when refugees demand or act on their right of return, they may in fact be advancing complex claims for a variety of interconnected political, socio-economic and remedial rights. M. Bradley, “The Right of Return: A Typology of Claims,” paper presented at the Annual Conference of the International Studies Association, Montreal, March 2011.

5

By ‘expansive,’ I mean interpretations that require the state not only to permit the entry of returning citizens, but also to ensure they can reclaim and resume habitation on their lost lands.

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recent research has focused on the ways in which human rights advocates, humanitarian actors and refugees themselves have articulated and advanced claims for the right of return.6 My focus on the role of states, particularly liberal democracies, in codifying and promoting certain interpretations of the right of return is not to discount or discredit the critical part played by these other actors, or to imply homogeneity in the perspectives of all liberal democracies. Second, the right of return is both a legal and political concept that (arguably) applies to the movement of individuals both across borders, and within states. In considering the codifijication of the right of return, I predominantly concentrate on international human rights law, although important provisions on the right of return in liberal democracies’ domestic laws also inform my discussion of how liberal democracies are restricting citizens’ exercise of the right of return in the name of security. Third, the right of return has been understood in some quarters as both an individual right and a group right that may be advanced by citizens and non-citizens. In keeping with my focus on how liberal democracies have interpreted and engaged with this right, I concentrate primarily on the right of return as an individual claim that may be expressed collectively, typically in the context of a state-citizen relationship. Any analysis of the right of return inevitably raises questions about the proper scope of this norm. These questions are, however, more than I can attempt to tackle here. 1.2

Origins and Articulations of the Right of Return

As mentioned above, the right of return is an important norm in both domestic and international law, but it is also a broader political principle and claim. Citizens’ ability to return to their country of origin, and to move freely within it, is recognized as a human rights issue in large part because the right of return is intimately connected to a widely accepted rationale for states’ exercise of sovereign power: if the state is to be legitimate, it must uphold its citizens’ basic rights, and protect their wellbeing.7 For this logic to hold, citizens who fijind themselves outside their country of origin must have the right to return to and avail themselves of the protection of 6

See for example A. Adelman and E. Barkan, No Return, No Refuge: Rites and Rights in Minority Repatriation (New York: Columbia University Press, 2011). Adelman and Barkan focus on how the concept of the right of return applies to those uprooted by ‘ethnic conflicts’, who would be in the demographic minority in the communities to which they would return. In contrast, the starting point of this examination is the view that as a cross-cutting human rights principle, the right of return needs to be understood not only as it applies to ‘minority’ refugees and IDPs, but to individuals more broadly.

7

F. Deng, Sovereignty, Responsibility and Accountability (Washington, D.C.: Brookings Institution Press, 1995); and International Commission on Intervention and State Sovereignty

Liberal Democracies and the Right of Return: Implications for Free Movement

their state. In instances where the state has pushed some of its citizens into exile, this implies that if the state is to maintain or regain its legitimacy, it must establish conditions amenable to the safe and dignifijied return of its expelled citizens.8 At the same time, citizens must have a relatively unfettered ability to move freely and return to their homes within their state borders, given the close link between this type of free movement and the enjoyment of individual and community wellbeing, viable livelihoods and rights protection.9 Given the pivotal role of this norm in underpinning the logic of the state system, it is not surprising that provisions on the right of return appear in many diffferent branches of international law, including conventions and declarations on human rights and refugee issues, United Nations resolutions, and peace treaties. 1.2.1

Articulations of the Right of Return in International Law

Starting with the development of the modern human rights regime in the early post-World War II era, liberal democracies have played a pivotal role in entrenching the right of return in international law. Perhaps the most oft-cited international document in discussions of the right of return is United Nations General Assembly Resolution 194 (III). Passed in 1948 in the early aftermath of the establishment of the state of Israel and the displacement of some 750,000 Palestinian refugees, this resolution famously states that “refugees wishing to return to their homes and live at peace with their neighbours should be permitted to do so at the earliest practicable date.” 10 As a General Assembly Resolution, this provision does not have the status of international law, although some commentators have argued that because it is reaffijirmed almost annually by a sizable majority of United Nations member states, it now has the status of customary international law.11 Israel and its backers argue that

(ICISS), The Responsibility to Protect: Report of the International Commission on Intervention and State Sovereignty (Ottawa: International Development Research Centre, 2001). 8

On this concept, see M. Bradley, Refugee Repatriation: Justice, Responsibility and Redress

9

In this sense, the right of return is both a primary right of intrinsic value, and a secondary

(Cambridge: Cambridge University Press, 2013). right of instrumental value because of the role it may play in enabling individuals to access and enjoy a broader range of rights. 10

M. Fischbach, Records of Dispossession: Palestinian Refugee Property and the Arab-Israeli Con-

11

G. Boling, “Palestinian Refugees and the Right of Return: An International Law Analysis,”

flict (New York: Columbia University Press, 2003), xxi. BADIL Information and Discussion Briefs 8 (2001).

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Resolution 194 does not in fact establish a right of return, as it simply recognizes that refugees should be allowed to return, not that this return must be enabled.12 Many soft and hard law standards are much more explicit in establishing a general right of individuals to leave and return to their countries and communities of origin. For example, Article 13.2 of the Universal Declaration of Human Rights states that “Everyone has the right to leave any country, including his own, and to return to his country,” while Article 12.4 of the International Covenant on Civil and Political Rights (ICCPR) states that “No one shall be arbitrarily deprived of the right to enter his own country.” 13 Whereas the other provisions on internal freedom of movement in ICCPR Article 12 are subject to derogation when, according to Article 12.3, this is “necessary to protect national security, public order (ordre public), public health or morals or the rights and freedoms of others,” Hannum stresses the “absolute statement” of the right of return in the ICCPR, and argues that “the point of departure [for determining the legal content of this right] must be the widest possible scope of free movement into one’s own country and out of any country, including one’s own.” 14 In considering the meaning of the concept of arbitrariness in ICCPR Article 12.4, the United Nations Human Rights Committee opines that, In no case may a person be arbitrarily deprived of the right to enter his or her own country. The reference to the concept of arbitrariness in this context is intended to emphasize that it applies to all State action, legislative, administrative and judicial; it guarantees that even interference provided for by law should be in accordance with the provisions, aims and objectives of the Covenant and should be, in any event, reasonable in the particular circumstances. The Committee considers that there are few, if any, circumstances in which deprivation of the right to enter one’s own country could be reasonable.15

12

Israel Ministry of Foreign Affairs (MFA), “Israel, the Conflict and Peace,” (2007) . Accessed 17 November 2011.

13

The ICCPR articulates a right to enter one’s country rather than a right to return to one’s country in order to encompass the concerns and claims of individuals who are born outside the country of their nationality. See Human Rights Committee General Comment 27 on Freedom of Movement, CCPR/C/21/Rev.1/Add.9, 1999.

14

H. Hannum, The Right to Leave and Return in International Law and Practice (Dordrecht: Martinus Nijhoff Publishers, 1987), 20.

15

Human Rights Committee, General Comment No. 27: Freedom of Movement (Art. 12, CCPR/C/21/Rev.1/Add.9, 1999), paragraph 21.

Liberal Democracies and the Right of Return: Implications for Free Movement

This clear statement of the right of return, understood in terms of re-entering one’s country of origin, is echoed in a range of regional human rights treaties.16 In contrast to this unambiguous assertion of the right to return to one’s country of origin, “there is no general rule in present human rights law that explicitly afffijirms the right of internally displaced persons,” or indeed non-displaced persons, “to return to their original place of residence... However, such a right can be deduced from the right to the liberty of movement and the right to choose one’s residence as embodied in Article 12” of the ICCPR.17 Accordingly, the Guiding Principles on Internal Displacement, which are based on international human rights law, humanitarian law and refugee law by analogy, stipulate in Principle 28.1 that Competent authorities have the primary duty and responsibility to establish conditions, as well as provide the means, which allow internally displaced persons to return voluntarily, in safety and with dignity, to their homes or places of habitual residence, or to resettle voluntarily in another part of the country.

This provision is complemented by Guiding Principle 29.2, which states that Competent authorities have the duty and responsibility to assist returned and/or resettled internally displaced persons to recover, to the extent possible, their property and possessions which they left behind or were dispossessed of upon their displacement.18

Support for property restitution found in documents such as the Guiding Principles on Internal Displacement, the United Nations Principles on Housing and Property Restitution for Refugees and Displaced Persons, and treaties such as the General Framework Agreement for Peace in Bosnia and Herzegovina (Dayton Agreement) have prompted many advocates to argue that properly interpreted, the right of re16

See for example Article 22(5) of the American Convention on Human Rights; Article 12(2) of the African Charter on Human and Peoples’ Rights; and Article 3(2) of Protocol 4 to the European Convention on Human Rights.

17

W. Kälin, The Guiding Principles on Internal Displacement: Annotations, 2nd Edition (Washington, D.C.: American Society of International Law, 2008), 126.

18

For a discussion of the legal provisions underpinning the view that right of return entails not only the right to re-enter one’s country but also the right to return to and reclaim (if applicable) one’s home, see Kälin (2008), at 35-36 and 126-129. Agreements backstopping this view include Geneva Convention IV (Article 49) and ILO Convention No. 169 concerning Indigenous and Tribal Peoples in Independent Countries, in addition to various peace treaties and UN Security Council resolutions pertaining to specific conflicts, and General Recommendation XXII (1996) of the Committee on the Elimination of Racial Discrimination.

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turn now entails not simply the right to re-enter one’s country or return to one’s community, but also the right to repossess lost homes and lands.19 Many liberal democracies were instrumental in the negotiation of the legal protections that underpin this interpretation of the right of return, and have selectively embraced this comparatively expansive conceptualization of what the right of return entails. Many liberal democracies have also recognized their citizens’ right of return in robust domestic laws.20 However, in practice the politics surrounding liberal democracies’ advancement and interpretation of the right of return are much more complex and contested than these relatively tidy and terse provisions suggest. 1.3

Liberal Democracies’ Interpretations of the Right of Return: Trends and Implications

This section examines trends in liberal democracies’ engagement with the right of return during and after the Cold War. The everyday practices of most liberal democracies have converged around an interpretation of the right of return that obliges them not to arbitrarily prevent their citizens’ return, and these states typically allow the majority of their citizens to exercise this right with little if any impediment. However, in recent years several liberal democracies have embraced more restrictive interpretations of the right of return vis-à-vis their own citizens, while they have pushed states emerging from conflict to adopt particularly demanding interpretations of this right. In this section, I examine these divergent interpretations of the right of return, and the sometimes paradoxical consequence of expansive interpretations of this right serving to restrict individual freedom of movement in practice. 1.3.1

The Right to Leave and Return During the Cold War

The right to leave and the right to return are often presented as two sides of the same coin, particularly in terms of how these rights are articulated in international law. During the Cold War, deliberations and advocacy on these norms amongst scholars and within liberal democracies focused principally on the right to leave, due to concerns regarding dissidents’ ability to escape Communist countries.21 Within 19

See for example S. Leckie, “An Introduction to the ‘Pinheiro Principles’”, in The Pinheiro Principles: United Nations Principles on Housing and Property Restitution for Refugees and Displaced Persons (Geneva: Centre on Housing Rights and Evictions, 2005), 3.

20

See for example Section 6(1) of the Canadian Charter of Rights and Freedoms, which pro-

21

This is evident in the two major studies on the right to leave and return that were produced

vides that “Every citizen of Canada has the right to enter, remain in and leave Canada.” during the Cold War. Both Hurst Hannum’s 1987 work The Right to Leave and Return in Inter-

Liberal Democracies and the Right of Return: Implications for Free Movement

the refugee regime, there was a marked lack of debate on the right of return during the early decades of the Cold War. This was perhaps unsurprising, as the relatively nascent regime was focused on upholding the cardinal rule of non-refoulement, and operated with an acknowledged ‘exilic bias’. This was conditioned in part by the functioning of the refugee regime in the inter-war years, at which time refugees were issued Nansen Passports, which enabled stateless refugees to depart their countries of origin, but specifijically precluded them from exercising any right of return.22 Unlike the stateless refugees who were issued Nansen Passports, the majority of the refugees protected and assisted by the Offfijice of the United Nations High Commissioner for Refugees (UNHCR) during the Cold War were in fact not de jure stateless, but remained citizens of their state of origin with the right to voluntarily return.23 Nonetheless, repatriation was rarely encouraged as a durable solution to displacement during this period. Instead, scores of refugees who ‘voted with their feet’ against violence and persecution in Communist countries were permanently resettled in western states. Many if not most refugees were keen to take up this opportunity, and so calls for the right of return were less common within refugee communities. Adelman and Barkan argue that “only in the 1990s did UNHCR interpret the 1951 Refugee Convention as linking the principle of voluntary repatriation with a right of return.”24 However, an examination of UNHCR’s archives from the 1980s demonstrates that by this time, awareness was growing within UNHCR that return was a right that may be demanded by refugees, and that UNHCR may be bound to support in its negotiations with governments on refugees’ behalves. For example, fijiles on UNHCR’s mission in support of Salvadoran refugees sheltered in Honduras in the mid-1980s demonstrate the organization’s evolving understanding of its obligation to support the refugees’ struggle to assert their right to return to their state of origin, despite the ongoing conflict in the country at the time. UNHCR was initially extremely hesitant to accept the refugees’ claim that “As Salvadorans, we have the right to return to live and work freely in our country,” dismissing this assertion as

national Law and Practice and Vasak and Liskofsky’s 1976 edited collection The Right to Leave and to Return concentrate predominantly on the right to leave. 22

J. Torpey, The Invention of the Passport: Surveillance, Citizenship and the State (Cambridge: Cambridge University Press, 2000), 127-129; and L. Kerber, “The Stateless as the Citizen’s Other: A View from the United States,” American Historical Review 111, no. 1 (2007), 21.

23

A. Shachar, “Against Birthright Privilege: Redefining Citizenship,” in Identities, Affiliations, and Allegiances, eds. S. Benhabib, I. Shapiro and D. Petranović (Cambridge: Cambridge University Press, 2007), 267.

24

Adelman and Barkan (2011), 5.

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impractical, politically motivated and overly risky.25 However, UNHCR eventually accepted that because a large-scale spontaneous return “cannot be ruled out,” the “characteristics [of] UNHCR involvement must be decided. It should be remembered that...their request [to repatriate] should be considered within [the] framework of [the] right to return to [their] country of origin.”26 UNHCR’s courage of conviction on this point gradually strengthened, with UNHCR’s Regional Representative for Central America recognizing that although “UNHCR cannot disregard [the] internal conflict situation prevailing in the country of origin,” the agency nonetheless “cannot remain indiffferent” to the refugees’ request for voluntary repatriation and “must support [their] right to return.”27 1.3.2

The Post-Cold War Era: Increasing Debate on the Right of Return

Some states such as China and Burma continue to place restrictions on the right of their citizens to leave their countries. However, in the aftermath of the Cold War high-level debate and advocacy on this aspect of the right to leave and return has died down somewhat. At the same time, a confluence of factors has brought the other ‘side’ of this principle, the right of return, to a position of increased prominence in the politics of liberal democracies, post-conflict states and the international refugee regime, although the academic literature has yet to fully engage with the signifijicance of this shift. In the early aftermath of the Cold War, debate and advocacy on the right of return, particularly as it pertained to refugees, was revived. This was in part attributable to the upsurge of advocacy on the right of return within the Palestinian refugee 25

Spanish original: “Como salvadorenos tenemos derecho a retornar para vivir y trabajar libremente en nuestro pais.” See Fonds 11, Series 3, 1985-1996, 610.HON.SAL-Special Protection Problems-Repatriation-El Salvadorian Refugees in Honduras, Volume B, Proyecto de retorno de los refugiados salvadorenos en Mesa Grande, San Marco de Ocotepeque, Honduras, 28 March 1987, submitted to Waldo Villalpando, UNHCR representative in Honduras. The refugees encamped at Mesa Grande articulated their desire to exercise their right of return, as laid out in international law, in several letters and manifestos delivered to leaders including the President of El Salvador, the Secretary-General of the United Nations, and UNHCR representatives, as well as to media outlets.

26

See Fonds 11, Series 3, 1985-1996, 610.HON.SAL-Special Protection Problems-Repatriation-El Salvadorian Refugees in Honduras, Volume D, cable from Honduras Branch Office to Geneva Headquarters, hon/hcr/0685, 28 September 1987.

27

See Fonds 11, Series 3, 1985-1996, 610.HON.SAL-Special Protection Problems-Repatriation-El Salvadorian Refugees in Honduras, Volume D, cable from Costa Rica Regional Office to Geneva Headquarters, cos/hcr/0604, 29 September 1987.

Liberal Democracies and the Right of Return: Implications for Free Movement

community in response to the Oslo peace process. Many within the refugee community became concerned that their claimed right to return to their lost homes and lands within Israel’s 1948 borders would be sacrifijiced to realize the goal of a twostate solution to the conflict.28 This led to a plethora of conferences, declarations, studies and impassioned exchanges on the Palestinian right of return. Indeed, for many the concept of the ‘right of return’ became inseparable from the PalestinianIsraeli conflict, obscuring the broader signifijicance of the concept for the everyday exercise of freedom of movement, and for the resolution of a wide range of other cases of conflict and displacement, including crises in Georgia, Tajikistan, Rwanda, Iraq, Guatemala, El Salvador, Afghanistan and the former Yugoslavia.29 The resurgence of debate on the Palestinian refugees’ right of return accompanied the emergence of voluntary repatriation as the predominant and arguably ‘preferred’ solution to displacement in the context of the broader international refugee regime, and the emergence of internal displacement as a critical issue on the agendas of governments, and humanitarian and human rights actors. This meant that liberal democracies began to have to walk very fijine lines in their interpretations of the right of return, justifying (or precluding debate on) their promotion and application of substantively (and arguably arbitrarily) diffferent conceptualizations of the right of return depending on the cases at hand, and the political interests at stake. While western liberal democracies, in their role as donors and international powerbrokers, were keen to promote the right of return as a normative justifijication supporting the repatriation of particular refugee populations, many were equally determined to ensure that their support for the right of return in cases such as Guatemala and Afghanistan not be assumed to imply support for the application of this principle in the Palestinian-Israeli case.30 Similarly, while many liberal democ28

From the perspective of the Israeli government, a large-scale return of Palestinian refugees is incompatible with the logic of a two-state solution, in that it would undercut the Jewish demographic majority in Israel. Israel Ministry of Foreign Affairs (MFA), 2007.

29

The pertinence of the right of return in these cases challenges Barkan’s contention that “The demand for a right of return is relatively uncommon in international relations and is hardly ever implemented. Most frequently, it appears in the Israeli-Palestinian context, but rarely if ever in any of the other numerous cases involving tens of millions of refugees worldwide.” See E. Barkan, “Considerations Toward Accepting Historical Responsibility,” in Exile and Return: Predicaments of Palestinians and Jews, eds. A. Lesch and I. Lustick (Philadelphia: University of Pennsylvania Press, 2005), 86.

30

For research challenging the treatment of the Palestinian refugee situation as a sui generis case see M. Dumper, “Palestinian Refugees in Comparative Perspective: The Cases of Guatemala, Bosnia and Afghanistan,” in The Palestinian Refugee Issue and the Arab-Israeli Conflict, eds. E. Benvenisti and S. Hanafi (Heidelberg: Max Planck Institute, 2006a); Palestinian

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racies expressed early support for the Guiding Principles on Internal Displacement, including the provisions tacitly articulating a right of return for internally displaced persons (IDPs), those states with indigenous populations forced from their traditional territories drew a distinction between any claim these native communities may have to return to their lands, and the predicament of IDPs uprooted in developing countries. Despite inconsistencies in implementation and lack of clarity regarding acceptable derogations, the popularization of the notion that the right of return applies to those who move within their countries as well as to those who leave their states was one of the most signifijicant developments of this norm in the post-Cold War era. The emergence of the right of return as a highly pertinent—if contested—principle in the years since the end of the Cold War is further attributable to a marked increase in displacement during this period due to natural disasters (often linked to climate change), and ‘ethnic conflicts’ accompanied by large-scale displacement in places such as the former Yugoslavia and Sudan. Many individuals displaced by phenomena such as increasingly severe hurricanes and floods have been keen to exercise their right to return to rebuild their homes and communities, although the extent to which liberal democracies have backstopped this asserted right has depended on factors such as risk of exposure to further disasters, and economic interests in developing swaths of land that have been conveniently cleared of poor, tenure-insecure families.31 Those displaced by the gross human rights violations that characterize ethnic cleansing campaigns have, not surprisingly, been much more loath to consider returning to their countries or communities of origin. However, liberal democratic states have in some instances been highly vocal in advocating the exercise of the right of return in these cases, purportedly with a view to ‘reversing’ ethnic cleansing. As the following examination of liberal democracies’ effforts to promote and uphold the right of return in Bosnia suggests, this policy was attributable not only to

Refugee Repatriation in Global Perspective (London: Routledge, 2006b); and The Future for Palestinian Refugees: Toward Equity and Peace (Boulder: Lynne Rienner, 2007). 31

For analysis of the obstacles to the exercise of the right of return encountered by individuals displaced by Hurricane Katrina, see L.B. Inniss, “A Domestic Right of Return? Race, Rights, and Residency in New Orleans in the Aftermath of Hurricane Katrina,” Boston College Third World Law Journal XVII (2006). It is noteworthy that in future, the relevance of the right of return for the resolution of displacement due to certain natural disasters may wane. This is because the effects of climate change are expected to render some territories uninhabitable, such as some small island states. Return will simply not be an option for those displaced from these regions.

Liberal Democracies and the Right of Return: Implications for Free Movement

a principled opposition to ethnic cleansing, but also to western states’ interests in disburdening themselves of refugees. 1.3.3

Expanding the Right of Return: The Case of Bosnia and Herzegovina

Since 1995, Bosnia has been the site of the most concerted effforts in history to enable realization of a strikingly expansive interpretation of the right of return. Under the leadership of the United States and the countries of the European Union, the right of return was put at the centre of the Dayton peace process, and was defijined as the right of displaced persons not only to re-enter the country, but also to return to and reclaim their original homes. Effforts to enable the right of return in Bosnia commenced from a profoundly bleak starting point: half the country’s population was uprooted during the war. 1.3 million sought asylum abroad, while one million were IDPs. Displacement caused by armed attacks, systematic rape and torture altered the demographic landscape of the entire country. By the end of the war, there were no municipalities in which the pre-conflict ethnic composition was preserved.32 Yet Bosnia became a touchstone for advocates concerned with the right of return. The Dayton Agreement consolidated the country’s ethnic fragmentation by dividing it into two ‘entities,’ the Bosnian-Serb controlled Republika Srpska and the Bosniak-Croat governed Federation of Bosnia and Herzegovina.33 Yet the agreement also reflected its architects’ determination to “turn back the tide” of ethnic cleansing by enabling displaced persons to return to their original homes.34 Some 70 percent of Bosnian refugees in Europe were from ethnically cleansed regions to be governed predominantly by members of an ‘opposing’ ethnic group, where they would be in the minority.35 Accordingly, Annex VII of the Dayton Agreement laid out

32

Human Rights Watch, A Chance for Justice: War Crime Prosecutions in Bosnia’s Serb Republic (New York: Human Rights Watch, 2006), 3. D. Heimerl, “The Return of Refugees and Internally Displaced Persons: From Coercion to Sustainability?,” International Peacekeeping 12, no. 3 (2005), 377.

33

See E. Sarajlić, “Multilevel Citizenship and the Contested Statehood of Bosnia and Herzegovina,” in Multilevel Citizenship, ed. Willem Maas (Philadelphia: University of Pennsylvania Press, 2013).

34

C. Phuong, “At the Heart of the Return Process: Solving Property Issues in Bosnia and Herzegovina,” Forced Migration Review 7 (2000), 5; and C. Phuong, “‘Freely to Return’: Reversing Ethnic Cleansing in Bosnia-Herzegovina,” Journal of Refugee Studies 13, no. 2 (2000), 165-166.

35

L. Van Metre and B. Akan, “Dayton Implementation: The Return of Refugees,” USIP Special Reports 26 (1997), 2.

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detailed provisions to backstop the right of return. At its core was the guarantee in Article 1.1 that All refugees and displaced persons shall have the right freely to return to their homes of origin. They shall have the right to have restored to them property of which they were deprived…and to be compensated for any property which cannot be restored to them. The early return of refugees and displaced persons is an important objective of the settlement of the conflict in Bosnia and Herzegovina.36

The agreement established institutions responsible for property restitution, and gave the High Representative (appointed by western powers to facilitate the peace process) the power to fijire offfijicials who obstructed the return process. Although Annex VII put the right of return and restitution at the heart of effforts to build peace in Bosnia, these issues were not discussed in depth at Dayton by the warring parties. As Marcus Cox maintains, Dayton’s “far-reaching provisions on human rights and refugee returns can only be attributed to the creativity and thoroughness of US State Department lawyers, and the substantial indiffference of the delegations themselves to much of the text which they signed.”37 Yet the inclusion of such detailed and expansive provisions on the right of return must also be attributed to states’ desire to reduce the number of refugees sheltered within their borders. Amongst the liberal democracies shepherding the peace process, ‘undoing’ ethnic cleansing through minority returns was seen as a moral imperative, as well as an opportunity to temper ethno-nationalist extremism and perhaps above all as a chance for reluctant European host states to deflect a perceived ‘asylum crisis’.38 This was a particularly critical concern from Germany, as they had provided what was to be temporary asylum to the lion’s share of Bosnian refugees in Europe. Chief American negotiator Richard Holbrooke recalled the imperative nature of repatriation for Germany:

36

The Dayton Agreement’s articles on restitution and return have been integrated into many subsequent treaties, with almost every peace agreement signed since 1995 acknowledging the right of return in some form. On this point see C. Phuong, Forcible Displacement in Peace Agreements (Geneva: International Council on Human Rights Policy, 2005), 12 Accessed 10 May 2013.

37

Marcus Cox, “The Right to Return Home: International Intervention and Ethnic Cleansing in Bosnia and Herzegovina,” International and Comparative Law Quarterly 47, no. 3 (1998), 609.

38

International Crisis Group (ICG), Bosnia’s Refugee Logjam Breaks: Is the International Community Ready? (Sarajevo: ICG, 2000), 1; and J. Harvey, “Return Dynamics in Bosnia and Croatia: A Comparative Analysis,” International Migration 44, no. 3 (2006), 103-104.

Liberal Democracies and the Right of Return: Implications for Free Movement With over three hundred thousand Bosnian refugees in their country, Germany wanted to reduce the burden that the refugees had put on its social services and budget…Bonn had given [its representative at Dayton] one fijirm instruction: any agreement must encourage the refugees to return home.39

Over the fijirst fijive years of the peace process, peacebuilding expenditures in Bosnia reached approximately US$9 billion a year, or over four times the cost of the Marshall Plan. 40 Yet only limited advances were made, particularly in terms of the return process. Despite the fact that the restitution process was virtually deadlocked in this period, several European host states went ahead with ‘mandated repatriation’ policies that compromised the sustainability of minority returns. 41 The restitution process only gained steam in 2000 when it was taken in hand by the Offfijice of the High Representative, and recast as a law and order exercise that aimed to facilitate durable solutions to displacement including but not privileging minority return. 42 Restitution under this revised approach proved to be strikingly efffijicient: 92 percent of the 215,000 claims submitted were adjudicated and enforced to the benefijit of the displaced claimant by the end of 2003. 43 According to UNHCR, by September 2004 over one million refugees and IDPs, or almost half of all those displaced, had returned to their original homes; just under fijifty percent of this group were minority returns. 44 However, after 2003 levels of minority return fell considerably, and there are no solid data on how many minority returnees actually remained in their prewar communities. Owing to unresolved grievances, persistent insecurity and rampant discrimination, many would-be returnees did not feel that permanent return to their repossessed homes was a viable option. Instead, many sold their properties,

39

R. Holbrooke, To End a War (New York: The Modern Library, 1999), 275.

40

R. Belloni, “Civil Society and Peacebuilding in Bosnia and Herzegovina,” Journal of Peace Research 38, no. 2 (2001), 165.

41

S. Bagshaw, “Benchmarks or Deutschmarks? Determining the Criteria for the Repatriation of Refugees to Bosnia and Herzegovina,” International Journal of Refugee Law 9, no. 4 (1997); ICG (2000), 17; and Van Metre and Akan (1997), 2.

42

R. Williams, The Contemporary Right to Property Restitution in the Context of Transitional Justice (New York: International Center for Transitional Justice, 2007), 39.

43

R. Williams, “Post-Conflict Property Restitution and Refugee Return in Bosnia and Herzegovina: Implications for International Standard-Setting and Practice,” New York University Journal of International Law and Politics 37, no. 3 (2006), 443; and P. Prettitore, “Refugee Return in Bosnia and Herzegovina,” in Palestinian Refugee Repatriation: Global Perspectives, ed. M. Dumper (New York: Routledge, 2006), 190.

44

Heimerl (2005), 383-384.

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and used this money to fund their resettlement in communities where they would be part of the demographic majority.45 The success of effforts to promote the right of return to and within Bosnia remains a matter of debate. 46 However one assesses the ultimate success of this case, it is clear that the conceptualization and implementation of the right of return in Bosnia were driven principally (at least in the early years of the process) by the United States and the countries of the European Union. These liberal democracies (particularly the EU Member States) were motivated by seemingly incompatible goals: fijirst, to reverse the ethnic cleansing of Bosnia; and second, to legitimize the speedy return of Bosnians sheltered in European host states increasingly hostile to the presence of refugees. 47 Because the second goal was prioritized over the fijirst, the process was compromised almost from the outset. The paradoxical upshot of this case is that the expansive interpretation of the right of return that liberal democracies advocated at Dayton served as a foil for other restrictions on the free movement of Bosnian refugees in particular. The provisions and protections liberal democracies established to enable and uphold the right of return in Bosnia were used to justify the withdrawal of asylum rights, preventing the refugees from enjoying free movement in their European host states. Indeed, after articulating the scope and content of the right of return in unprecedented detail, Annex VII of the Dayton Agreement “call[ed] upon States that have accepted refugees to promote the early return of refugees consistent with international law.” At the same time, these same provisions failed to make freedom of movement within Bosnia viable, particularly for would-be minority returnees. In this way, the Bosnian case shows how liberal democracies’ principled support for robust interpretations of this human rights norm is unsurprisingly tempered by self-interest, and may not translate into increased freedom of movement in practice.

45

E. Cousens and D. Harland, “Post-Dayton Bosnia and Herzegovina,” in Twenty-First-Century Peace Operations, ed. W. Durch (Washington, D.C.: USIP, 2006), 109; International Crisis Group (ICG), Bosnia’s Refugee Logjam Breaks: Is the International Community Ready? (Sarajevo: ICG, 2000), 3; and Heimerl (2005), 384-386.

46

For an analysis concluding the process was almost wholly misguided, see Adelman and Barkan (2011). For a more optimistic but still circumspect assessment, see G. Toal and C. Dahlman, Bosnia Remade: Ethnic Cleansing and its Reversal (Oxford: Oxford University Press, 2011).

47

The Bosnian Muslim leadership supported the approach advocated by the Dayton architects, but lacked the power to promote this interpretation of the right of return in the face of intransigence from the other parties.

Liberal Democracies and the Right of Return: Implications for Free Movement

1.3.4

Restricting the Right of Return: The Case of ‘Stranded’ Citizens of Liberal Democracies

Return movements to and within Bosnia raised pressing security concerns, as many displaced civilians were going back to communities where the perpetrators of the crimes that forced them from their homes continued to exert considerable power. At the same time, many returnees were themselves perpetrators of ethnically motivated violence. Article VI of Annex VII of the Dayton Agreement efffectively acknowledges that returnees may have been complicit in crimes from low-level abuses to egregious atrocities, and grants an amnesty to the perpetrators of all crimes except those unrelated to the conflict, and those that represent a “serious violation of international humanitarian law”. Yet the agreement in no way abrogates the right of return on the basis of security concerns. 48 In contrast, several liberal democratic states are increasingly restricting their own citizens’ exercise of their right of return, on the grounds of the security threats these citizens allegedly represent due to their suspected involvement with terrorism. ‘No Fly’ lists such as those maintained under UN Security Council Resolution 1267 and by the United States as part of its ‘watch list system’ have been critiqued extensively from a due process standpoint: typically, individuals do not need to have been charged or convicted of a crime to be listed. Individuals whose names appear on these lists are not told why they have been added, and have at best very weak mechanisms at their disposal to contest their designation as a security threat. Those who are outside of their country when they are added to a No Fly list may efffectively be barred from exercising their right of return. This section aims to bring into focus the implications of No Fly lists and related practices undertaken in the name of national security for the exercise of the right of return.49 Particularly for Muslim and Arab citizens of liberal democracies, the upshot of these practices is the promulgation of a highly restrictive interpretation of the right of return, under which the right to re-enter one’s country is made contingent not only on security concerns, but also on the vagaries of bureaucratic practices and political decisions well outside the citizen’s control. This restrictive interpretation is at odds not only with prohibitions against arbitrary limits on the right of return under international law, but also with the protections on the right of return that liberal democracies such as Canada have entrenched in their domestic laws.

48

While perpetrators of ‘serious violations of international humanitarian law’ may be forced to stand trial and serve prison time, upon release they would be free to return to their communities of origin.

49

This discussion focuses on the right of return as the right to enter one’s country.

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Abusfijian Abdelrazik’s struggle to assert his right to return to Canada is widely characterized by reporters, researchers, and even the Federal judge ruling on his case as deeply Kafkaesque.50 Mr. Abdelrazik came to Canada as a refugee from Sudan in 1990, and became a citizen in 1995 before travelling back to Sudan to visit his ailing mother in March 2003. In September 2003 he was arrested and imprisoned by the Sudanese government on suspicions of involvement in terrorism, and subjected to repeated torture. After being released in July 2004, the Canadian government refused to repatriate him, and he was re-imprisoned in 2005 at Canada’s request. After ten months, he was again released by the Sudanese government, which issued a formal document confijirming that no evidence was found linking Mr. Abdelrazik to terrorism. Nonetheless, at the request of the United States, Mr. Abdelrazik’s name was added to the UN 1267 blacklist in July 2006. Although both CSIS and the RCMP acknowledged that they had no “current and substantial information” pointing to Mr. Abdelrazik’s involvement in terrorism, and the travel ban imposed under UN 1267 exempts return to one’s country of origin, the Canadian government still refused to issue Mr. Abdelrazik an emergency travel document to enable him to repatriate.51 Destitute and increasingly desperate to return home, Mr. Abdelrazik was offfered “temporary safe haven” at the Canadian embassy in Khartoum, where he lived for 14 months while the government prevaricated on his case. Canadian offfijicials indicated that Mr. Abdelrazik must present a pre-purchased plane ticket in order for Passport Canada to issue him an emergency passport, and yet at the same time blocked his bank account and warned that anyone who helped him purchase a ticket would be charged for supporting a suspected terrorist. In March 2009, more than one hundred Canadians collectively purchased a plane ticket for him, but hours before the plane was to take offf, Minister of Foreign Afffairs Lawrence Cannon exercised his discretionary powers to refuse the issuance of an emergency passport. Alongside these developments, effforts unfolded to secure Mr. Abdelrazik’s return through the Canadian legal system. With the assistance of pro bono counsel in Canada, Mr. Abdelrazik requested a Federal Court order in May 2008 to require the government to repatriate him “by any means at its disposal,” on the grounds that this was necessary to remedy the breach of his right to “to enter, remain in and leave Canada,” as accorded to Canadian citizens by section 6 of the Canadian Charter 50

Mr. Abdelrazik’s case is reflective of a broader trend on the part of the Canadian government to restrict the ability of certain citizens to re-enter Canada. For example, since taking power in 2006, Canada’s Conservative government has drastically limited the practice of requesting the repatriation of citizens convicted of crimes abroad so that they can serve their sentences in Canada.

51

For a timeline see, People’s Commision Network, “Abousfian Abdelrazik: Project Fly Home,” at http://www.peoplescommission.org/en/abdelrazik/timeline.php.

Liberal Democracies and the Right of Return: Implications for Free Movement

of Rights and Freedoms.52 The government’s central argument in response to Mr. Abdelrazik’s application was that Canada could not provide him with travel documents or otherwise assist in his repatriation as long as his name appeared on the 1267 list, despite the exemption provided for return to a listed individual’s country of origin, and the litany of defects in the 1267 list process.53 The government also attempted to establish limits on Mr. Abdelrazik’s right to return to Canada, arguing that section 6 of the Charter does not include a right of repatriation, since “the right to enter Canada does not create a right to be returned to Canada.”54 In addition, the government maintained that even if there was a right to be repatriated, it would not pertain in this case because the obstacle to Mr. Abdelrazik’s return was not presented by the Canadian government, but by his listing under Resolution 1267. Although recognizing the exemption under the 1267 travel ban for the return of listed individuals to their country of origin, the government contended that this provision simply “relieves states of the obligation to turn their own nationals away should they present themselves at the border.”55 On 4 June 2009, Justice Russel Zinn of the Federal Court of Canada found that “Mr. Abdelrazik’s Charter right to enter Canada has been breached by the respondents,” and ordered the government to return Mr. Abdelrazik without delay. Accordingly, Mr. Abdelrazik was returned to Canada on 27 June 2009, but his name remained on the 1267 list until November 2011; between his return to Canada and his eventual delisting, he could not be provided with any form of material aid, including loans, employment, food, clothing or health insurance. If the right of return is understood not merely as a question of physical location or crossing a border, but as an issue of equitable membership in a political community, it could be argued that Mr. Abdelrazik’s right of return was not fully respected until he was fijinally delisted.56 However even while struggling to have his name removed from the 1267 list, Mr. Abdelrazik remained actively engaged in the pursuit of respect for his rights as a Canadian citizen. For example, he launched a suit against the federal government for CA$20 million, and former Foreign Minister Lawrence Cannon for CS$3 million for abuses including breach of his right to return to Canada. Abusfijian Abdelrazik’s experience is not unique amongst liberal democracies. In his case, the Canadian government was particularly assertive in its attempts to restrict the scope of the right of return on the grounds of security concerns. 52

S. Rehaag, “Restricted access to justice for Canadians mistreated abroad: Abdelrazik v. Canada (Re: interim costs),” Windsor Yearbook of Access to Justice 29(2011), 3.

53

Rehaag (2011), 12.

54

Rehaag (2011), 3.

55

Rehaag (2011), 4.

56

Bradley (2013).

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However, the use of No Fly lists in other jurisdictions has had a similar restrictive efffect in terms of the denial of listed individuals’ right of return, even if this was not the explicit intention. For example, the operation of the United States’ own No Fly list has resulted in the ‘stranding’ of an unknown number of US citizens who happened to be abroad when they were ‘listed,’ and were subsequently denied their right of return. The American Civil Liberties Union (ACLU) fijiled a lawsuit (Latif, et al v. Holder, et al): on behalf of several US citizens and lawful permanent residents who cannot fly to or from the United States or over US airspace because they are on the ‘No Fly List’...None of the plaintifffs in the lawsuit, including a disabled veteran of the US Marine Corps, two US Army veterans, and a US Airforce veteran, have been told why they are on the list or given a meaningful chance to clear their names. Yet, they have been prevented from visiting relatives, accessing employment and educational opportunities, and—for those stranded abroad—returning home to their families, jobs, and needed medical care in the United States.57

In response to an ACLU petition for preliminary relief, in August 2010 the US government agreed to allow those claimants who were stranded abroad to return to the United States. However, “the government still refused to tell them why they hadn’t been able to fly home in the fijirst place or whether they would be able to fly in the future.”58 Although these cases rely on domestic rather than international law, they have important bearing on the ways in which the right of return is understood as an international norm and political principle. In particular, does the predicament of citizens on No Fly lists represent an arbitrary deprivation of the right of return, as prohibited under the ICCPR? Due to the secrecy and profound lack of due process surrounding the operation of No Fly lists such as the 1267 list, in many cases it is difffijicult if not impossible to know for certain if particular deprivations of return rights are in fact arbitrary. To be sure, the Human Rights Committee sets a very high bar for acceptable derogations from this principle, arguing that “there are few, if any, circumstances in which deprivation of the right to enter one’s country could be reasonable.”59 Given that he was cleared of involvement in terrorism by CSIS, the 57

See http://www.aclu.org/national-security/latif-et-al-v-holder-et-al-aclu-challenges-government-no-fly-list.

58

See http://www.aclu.org/national-security/latif-et-al-v-holder-et-al-aclu-challenges-government-no-fly-list.

59

Human Rights Committee, General Comment No. 27: Freedom of Movement (Art. 12, CCPR/C/21/Rev.1/Add.9, 1999), paragraph 21.

Liberal Democracies and the Right of Return: Implications for Free Movement

RCMP and the Sudanese government, and yet was for years still barred from returning to Canada on the grounds that his name appeared on a list he had no real power to contest, the case of Abusfijian Abdelrazik seems to smack of arbitrariness. His case and the backgrounds of the plaintifffs in the ACLU lawsuit reflect the broader pattern of discrimination that seems to characterize liberal democracies’ application of restrictive interpretations of the right of return: unfortunately but unsurprisingly, it is predominantly Arab and Muslim citizens whose return rights are sidelined or narrowly interpreted in the name of national security. If states’ security concerns were clearly stated and defended, would this represent acceptable grounds on which to deprive an individual or his or her right to return? This question is at the heart of why these cases are particularly difffijicult: in the shadowlands of intelligence gathering and anti-terrorism work, information is rarely clear and public.60 If it were, states might be more amenable to having citizens suspected of involvement in terrorism return and stand trial (and these citizens might, at the same time, be less interested in returning). Yet if human rights, including the right of return, are to be taken seriously, it is clear that they cannot be abrogated on the basis of evidence collected without regard for the rule of law. 1.4

Conclusion

In most liberal democracies most of the time, the right of return is exercised without much difffijiculty by people who have voluntarily left their homes, whether for short or long periods. In this sense, the right of return generally functions efffectively as an important norm protecting a critical aspect of free movement. However, the juxtaposition of cases discussed above demonstrates that in certain contexts the principle is highly—and increasingly—contested. In these exceptional cases we see the fault lines of more complex and controversial debates on political membership and equitable access to the rights associated with it. Liberal democracies have interpreted the right of return in dramatically divergent ways, in some cases imposing more expansive conceptualizations of the right of return on post-conflict states than they are themselves willing to implement. Yet 60

In ruling on the Abdelrazik case, Judge Zinn of the Federal Court of Canada expressed appreciation of the difficulty of balancing obligations to address terrorism and other security concerns while respecting human rights, reflecting that “There is a tension between the obligations of Canada as a member of the UN to implement and observe its resolutions, especially those that are designed to ensure security from international terrorism and the requirement that in so doing Canada conform to the rights and freedoms it guarantees to its citizens.” Abdelrazik v. Canada (Minister of Foreign Affairs), ruling issued by Federal Court Judge Russell Zinn, 2009, para. 4.

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it is clear that in some cases, liberal democracies’ expansive interpretations of the right of return have in fact done more to limit than to protect freedom of movement. As was evident in Bosnia, by increasing the scope of what may be claimed in the context of exercising the right of return, host states may attempt to legitimize the ouster of refugees who are no longer welcome. It is also clear that in the more obviously restrictive interpretations of the right of return that have been advanced by liberal democracies such as Canada in recent years, a disturbing discriminatory streak is evident, with Muslim and Arab citizens more likely to be at the brunt end of restrictions on the right of return linked to alleged security concerns. In short, the varying ways in which liberal democracies have interpreted and implemented the right of return in light of their own interests testifijies to their power and ingenuity as “norm entrepreneurs,” and to their relatively successful assertion of a “monopoly on the legitimate means of movement.” 61 Despite the restrictive and discriminatory underpinnings of some interpretations of the right of return recently advanced by liberal democracies, individuals and advocacy organizations continue to push back with diffferent visions of what the right of return should entail.

61

M. Finnemore and K. Sikkink, “International Norm Dynamics and Political Change,” International Organization 52, no. 4 (1998), 887-917; and Torpey (2000), 1.

List of Contributors

Megan Bradley, Assistant Professor of Conflict Studies, Saint Paul University and Fellow in the Foreign Policy Program at the Brookings Institution, is author of Refugee Repatriation: Justice, Responsibility and Redress. Joseph Carens, Professor of Political Science, University of Toronto, works on contemporary political theory with a focus on immigration, citizenship, and democracy. He is author of many books, most recently Immigrants and the Right to Stay. Jacqueline Gehring, Assistant Professor of Political Science, Allegheny College, and Visiting Fellow, Berkeley Law School, University of California, writes on Roma rights, racial anti-discrimination policy, ethnic politics in France, German identity and is author of a forthcoming book on the EU Racial Equality Directive. Michael Johns, Assistant Professor of Political Science, Laurentian University, Barrie Campus, writes on the role of the European Union in the protection of minorities with particular interest in the unique place of intra-EU migration of East Europeans since 2004 in questions of social cohesion. Matthew Longo, PhD candidate, Yale University, writes on sovereignty, citizenship and the international state system, focusing on borders as institutions that are thick, multi-faceted, and bi-national, and which have evolved greatly under globalization (‘de-bordering’) and subsequent securitization (‘re-bordering’). Willem Maas, Jean Monnet Chair and Associate Professor, Glendon College, York University, is author of Creating European Citizens and writes on multilevel citizenship, European governance, the evolution of Dutch citizenship, and other issues in citizenship and migration.

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List of Contributors

Harris Mylonas, Assistant Professor of Political Science, George Washington University, writes on processes of nation- and state-building as well as immigrant and refugee incorporation policies. He is author of The Politics of Nation-Building: The Making of Co-Nationals, Refugees, and Minorities. Micheline van Riemsdijk, Assistant Professor in Human Geography, University of Tennessee-Knoxville, writes on the governance of international skilled migration and the lived experiences of skilled migrants, and the politics of belonging. Anne Staver, PhD candidate, University of Toronto, is a research fellow, Institute for Social Research, Oslo. Her dissertation focuses on new restrictions in family reunifijication policy in Norway, Denmark and the United Kingdom.

Index

A Abdelrazik, Abusfijian, 197, 212-5 Accession, 96-98, 117-40, 145-53. See also acquis communautaire; EU Acquis communautaire, 122, 129, 132, 135 Afghanistan, 205 Albania, 175, 184-6, 189 American Civil Liberties Union (ACLU), 214-5 Amsterdam Treaty, 19-20, 120 Anti-discrimination policies, see discrimination Austria, 19, 79-80, 82, 86, 96-97 B Belgium, 62, 66-68, 79-80, 97, 162 Bologna Process, 127 Border controls, 9, 12, 14, 57, 157, 159 Borders: internal (EU), 10-11, 14-16, 86, 93, 121-4, 136, 187-8; jurisdictional/state, 9-11, 13-14, 19, 30, 32, 57, 85-87, 94, 97, 121, 123, 177, 1989, 213 Bosnia and Herzegovina, 197, 202, 207-12, 216 Brain drain, 54, 102, 116 British Home Offfijice/Afffairs, 79. See also UK Bulgaria, 96, 105-6, 109-10, 149, 192 Burma, 204 C Canada, 10, 29. See also Charter of Rights and Freedoms; Federal Court of Canada; federal states; liberal democracies; SUFA

Central and Eastern Europe (CEE), 92, 102, 121, 150 Chakroun (2008), 63, 82-83 Charter of Fundamental Rights (EU), 135, 154-56 Charter of Rights and Freedoms (Canada), 15, 26-27, 202, 212-3 China, 12, 204. See also hukou Citizenship: Aboriginal/Native, 13; Canada, 9, 26, 29-30; democratic, 14, 31-37, 43, 50-56; European, 9-10, 15-20, 30, 32, 57, 66-71, 84, 93-95, 110-2, 117, 164, 168, 173. See also Amsterdam Treaty; United States, 21-37 Cold War, 98, 184, 202-6 Commerce Clause, 22-23, 35-39 Commission of the European Communities (role, in a decision making capacity), 20, 63, 79, 87, 94, 117- 20, 122-7, 130, 139, 144-5, 156-7, 160-74, Council of Europe, 149, 151, 168, 190 Court of Justice of the European Union (CJEU), 20, 59, 63, 65-67, 70-74, 81-88, 156-7 Credentials, see qualifijications Cyprus, 86, 96-97, 189 Czech Republic, 86, 121, 160

D Dayton Agreement, 202, 207-11. See also Bosnia and Herzegovina Democratic states/systems, 9-14, 31-34, 47, 53, 178. See also liberal democracies

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Index Democratic defijicit, 119, 134-8, Denmark, 20, 60-61, 69-70, 76-82, 86, 97 Dereci (2011), 59, 66-68 Diasporas, 98, 175-8, 181-6. See also minorities Discrimination, 14, 17, 23, 72, 94, 100-7, 111, 117, 133, 148-9, 151-62, 164, 174, 210, 215. See also reverse discrimination Diversity, 9-11, 24-25, 50-52, 112 in ethnicity, 150, 177, 182 Dutch, see Netherlands

E El Salvador, 203-5 Emigration, see migration England, see UK Equality: racial, 148, 153-4, 157; rights (citizenship/movement, etc.), 10, 14-15, 23, 37, 145, 173; social, 50, 54, 146 Estonia, 93, 121, 133 Ethnic minority, see minorities European Citizens Charter, 20 European Commission, see Commission of the European Communities European Convention on Human Rights (ECHR), 19-20, 61, 69-70, 79, 83 European Court of Human Rights (ECtHR), 61, 70 European Court of Justice (ECJ), see Court of Justice of the European Union (CJEU) European Economic Area (EEA), 57, 61, 66 European Economic Community (EEC), 93-95, 123, European Federation of Nurses Associations (EFN/PCN), 136-7, 140 European Parliament (EP), 19-20, 63, 82, 87, 109, 119, 133-7, 139, 144, 161, 166-9 European Roma Rights Centre (ERRC), 149, 164, 171. See also Roma European Union (EU), see accession; Amsterdam Treaty; borders; citizenship; Commission of the European Communities; European Parliament; freedom of movement; Maastricht Treaty; Treaty of Rome Europeanization, 75-78, 120, 138 EU Bill of Rights, 20

Exploitation, 100, 107-8, 111, 113, 116

F Family reunifijication, 57-84 Federal Court of Canada, 212-5 Federal states/federalism, 10-11, 14-19, 21-22, 25-29, 34-37, 55-56 Finland, 19, 86, 97, 178 France, 14, 19, 60, 78-80, 96-97, 137, 144-73 Freedom of movement: barriers/limits to, 10, 12, 40, 73, 96, 173, 176, 186-7, 200, 202; as rights, 9, 11, 22-23, 26, 32-33, 46-48, 87-88, 93-94, 126, 143, 158, 178, 186-8, 192-3, 200. See also right to travel; in Canada, 9, 15, 24-27, 29, 197, 213, 215; in the EU, 9-10, 15, 33, 64, 73-74, 87, 9294, 143, 156-8, 161, 173, 188, 190; in the US, 21-24, 33-38

G General Framework Agreement for Peace in Bosnia and Herzegovina, see Dayton Agreement Georgia, 188, 205 Germany, 15, 60, 73, 78-82, 86, 96-97, 131, 140, 162-3, 172, 181-2, 184, 208-9 Great Britain, see United Kingdom Greece, 86, 95, 97, 140, 162, 175, 178, 181, 18493 Guatemala, 205

H Harmonization of policy, 17, 75, 78, 117, 124. See also Europeanization Honduras, 203-4 Hukou (household registration [China]), 12 Hungary, 86, 121, 149

I Iceland, 57, 61, 69 Identity: ethnic/racial, 145, 154-5, 168 national/shared, 17, 43, 52-53, 91, 183 Immigration, see migration Immigration legislation/policy, 60-69, 73, 73-85, 177-9 India, 15-16, 180-1 Internal displacement (IDPs), 201-7, 209

Index International Convention on the Rights of Migrant Workers (ICRMW), 71 International Covenant on Civil and Political Rights (ICCPR), 10-11, 32, 70, 187, 196, 200 Iraq, 205 Israel, 13, 181, 184, 199-200, 205-6

L Latvia, 92-93, 121 Legal vagueness, 43-48 Liberal democracies, 11, 43, 53, 178, 197-216 Liberalization, 74, 118, 126 Liechtenstein, 10, 57, 61, 69 Lithuania, 96, 103, 121, 132 Lutz (1990), 41-42, 49 Luxembourg, 97

M Maastricht Treaty, 19-20, 64 Macedonia, 187, 189-92 Malta, 86, 96-97 McCarthy (2009), 59, 66, 68-71, 74, 88 Metock (2008), 65, 73-74, 83, 86-87 Migrant workers, 12, 64, 70, 95-108, 160 Migration: ethnic, 153, 176-83, internal, 9-16, 24-30, 67, 190, 200, international, 9-15, 19, 30, 50, 54, 57, 83, 92-96, 109, 115-22, 128, 138-40, 184-6, 196, Minorities 50-51, 93, 104, 112, 145, 156, 164, 166, 181, 185, 208-10. See also diasporas Mobility rights, 9, 21-23, 26, 29, 31-38, 56, 110-1 Monaco, 10 Multilevel political systems, see federal states Multilevel citizenship, 18-20, 207

N Nationalism, 16, 52-53, 178 Netherlands, 59, 62-63, 65, 70, 76-86, 97 New Deal, see United States ‘No Fly’ list, 211, 214 Norway, 57, 60-61, 69, 77-81, 85,

O Ontario, 28-29

Ontario-Quebec Trade and Cooperation Agreement, 29

P Palestine, 196, 198-9, 205-6 Path dependence, 71-72, 82-83 Pluralism, 13, 53 Poland, 92, 98-102, 105, 107, 111, 118-22, 128-39 Polish-Welsh Mutual Association (PWMA), 107-8 Political community, 43, 48-53, 197, 213 Portugal, 20, 80, 95, 97, 140 Privileges and Immunities Clause, 23, 35-39 Propiska, 12

Q Qualifijications, 10, 14, 115, 118-140 Québec, 18, 25-29

R Racial Equality Directive (RED), 154-6 Reding, Viviane (European Commissioner for Justice, Fundamental Rights and Citizenship), 154-7, 161-4 Reverse discrimination, 57-86 Right of return, 195-216 Right to travel, 22, 24, 32, 34, 40-43, 48-56. See also freedom of movement Roma, 14, 33, 143-74 Romania, 96, 105-6, 109-10, 145-6, 149, 152 Royal Canadian Mounted Police (RCMP), 212, 215 Ruiz Zambrano (2009), 59, 66-69, 74, 88 Russia, 12, 146, 183, 188 Rwanda, 205

S San Marino, 10 Sarkozy, Nicolas, 151, 160 Scotland, see UK Shapiro (1969), 39-45 Slovakia, 121, 149 Slovenia, 121 Social assistance, see welfare Social Union Framework Agreement (SUFA), 25-28 South Africa, 13 Sovereignty, 16, 27, 33, 91 Soviet Union, 12, 92, 98, 175, 178, 181, 184-93 Spain, 53, 80, 95, 97, 140, 146, 149, 151, 162, 178

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222

Index Supreme Court, see Canada; United States of America Sweden, 62, 79, 80-81, 85, 97, 121 Switzerland, 58, 61, 69

T Tajikistan, 205 Taxation, 10, 28, 36, 41 Third country nationals (TCNs), 19, 59-88 Treaty Establishing the European Communities (TEC), 32, 48, 120, 126, Treaty of Paris, 93-94, 158 Treaty of Rome, 93-94, 102, 117, 119, 123, 158 Treaty on the Functioning of the European Union (TFEU), 66, 69 Trudeau, Pierre, 26-27 Turkey, 181, 192

U Ukraine, 183 United Kingdom of Great Britain (UK), 18, 61, 69, 73, 78-81, 86-87, 92, 99, 100-1, 104-6, 108, 111, 117, 121, 131,

United Nations High Commissioner for Refugees (UNHCR), 183, 203-4, 209 United States of America, 10, 21-24, 33-42, 45, 49, 56. See also Commerce Clause; federal states; liberal democracies; Privileges and Immunities Clause Universal Declaration of Human Rights (UDHR), 10, 32, 48, 70, 187, 196, 200 USSR, see Soviet Union

V Vatican City, 10

W Wales, see UK Welfare, 9-19, 24, 28-29, 33, 39, 45, 51, 65, 83, 111 World Health Organization (WHO), 129

Y Yugoslavia, 181, 192, 205, 206