The Routledge Handbook of the Politics of Migration in Europe 9781138201187, 9781315512853

Table of contents :
Cover
Half title
Title page
Copyright page
Table of contents
List of figures
List of tables
Notes on contributors
Acknowledgements
Introduction: the case for regional approach to study politics of migration
Part I: Governance
1 Migration governance in Europe: a historical perspective
2 Research on the multi-level governance of migration and migrant integration: reversed pyramids
3 Politics of emigration in Europe
4 Beyond methodological Western-centrism:the ‘control gap’ debatere considered from a global perspective
5 Implementing migration policies: new research policies in a Europeanizing context
6 Expertise, governing and migration in Europe
7 Media and immigration: a political communication perspective
Section commentary
Part II: Institutions
8 The role of courts and legal norms
9 EU institutions: venue for restrictions or liberal constraints?
10 The party politics of migration
11 The participation, mobilization and political representation of migrants in Europe
Section commentary
Part III: Integration
12 The governance of citizenship and belonging in Europe and the European Union
13 Beyond national models: comparing migrant integration regimes
14 The civic integration turn
15 Family migration and membership
Section commentary
Part IV: Irregular migration
16 Politics of irregular migration in Europe: moving beyond an EU-driven research agenda
17 Border management in Europe: Europeanization and its discontents
18 Risk analysis as a governance tool in European border control
19 Security, industry and migration in European border control
20 Return and readmission policy in Europe: understanding negotiation and implementation dynamics
21 A spurious relationship? Assisted voluntary return and development
Section commentary
Part V: Asylum and international protection
22 The historical development of refugee protection in Europe
23 Contemporary politics of international protection in Europe: from protection to prevention
24 Does European refugee policy exist? Regional dimensions of the refugee protection approach in Europe
25 A common European asylum system? How variation in Member States’ administrative capacity undermines EU asylum harmonisation
Section commentary
Part VI: Labour migration in European context
26 The labour market impacts of immigration in Europe
27 Allowing refugees to work or not? Policies and the economic integration of refugees in the EU
28 The politics of care work and migration
29 Migration and the welfare state
Section commentary
Part VII: Pan-European cooperation on migration management
30 The politics of EU external migration policy
31 International organisations and politics of migration in Europe
32 The EU’s visa liberalisation policy: what kind of transformative power inneighbouring regions?
33 The evolution of governance and financing of migration and development policy and politics in Europe
Section commentary
Part VIII: Researching migration in Europe
34 Apples and oranges? Politics of data sources on migration in Europe
35 Analysis of discourses and rhetoric in European migration politics
Index

Citation preview

“This intelligent and comprehensive collection offers a penetrating analysis of the ‘politics of migration’ in Europe, as the continent deals with its associated cultural, social, economic and IR consequences. The contributors here offer refreshing practical and normative insights to the management of this critical issue confronting contemporary societies, states, and the European Union.” Gallya Lahav, Professor of Social and Behavioral Sciences, State University of New York at Stony Brook, USA. “Historical traditions, geographical diversity and multilevel governance have long since eluded observers of European migration politics. This Handbook is a great resource for anyone interested in understanding the breadth and depth of developments at local, regional, national and supranational levels on issues ranging from migration and asylum to integration.” Maarten Vink, Professor of Political Science, Maastricht University, Netherlands. “This Handbook offers a panoramic survey of the development, the achievements and the gaps of migration and refugee policies in Europe. The emergence of an EU competence in the matter is put in a historical perspective and scrutinized from various thematic, institutional and geographic angles. The result is not only a comprehensive up-to-date analysis of current policies but also a book that stimulates a deeper understanding of this complex field.” Sandra Lavenex, Professor of Political Science, University of Geneva, Switzerland.

THE ROUTLEDGE HANDBOOK OF THE POLITICS OF MIGRATION IN EUROPE

The Routledge Handbook of the Politics of Migration in Europe provides a rigorous and critical examination of what is exceptional about the European politics of migration and the study of it. Crucially, this book goes beyond the study of the politics of migration in the handful of Western European countries to showcase a European approach to the study of migration politics, inclusive of tendencies in all geographical parts of Europe (including Eastern Europe, the Western Balkans, Turkey) and of influences of the European Union (EU) on countries in Europe and beyond. Each expert chapter reviews the state of the art field of studies on a given topic or question in Europe as a continent while highlighting any dimensions in scholarly debates that are uniquely European. Thematically organised, it permits analytically fruitful comparisons across various geographical entities within Europe and broadens the focus on European immigration politics and policies beyond the traditional limitations of Western European, immigrant-­receiving societies. The Routledge Handbook of the Politics of Migration in Europe will be essential reading and an authoritative reference for scholars, students, researchers and practitioners involved in, and actively concerned about, research on migration, and European and EU Politics. Agnieszka Weinar is an Adjunct Research Professor at the Institute of European Union and Russian Studies at Carleton University, Ottawa, Canada. Saskia Bonjour is Assistant Professor in Political Science at the University of Amsterdam, the Netherlands. Her research focuses on the politics of migration and citizenship in the Netherlands and in Europe. Lyubov Zhyznomirska is an Assistant Professor in the Department of Political Science at Saint Mary’s University, Canada. She works at the intersection of migration studies in Europe, the politics of post-­Soviet countries, and European Union politics.

THE ROUTLEDGE HANDBOOK OF THE POLITICS OF MIGRATION IN EUROPE

Edited by Agnieszka Weinar, Saskia Bonjour and Lyubov Zhyznomirska

First published 2019 by Routledge 2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN and by Routledge 711 Third Avenue, New York, NY 10017 Routledge is an imprint of the Taylor & Francis Group, an informa business © 2019 selection and editorial matter, Agnieszka Weinar, Saskia Bonjour and Lyubov Zhyznomirska; individual chapters, the contributors The right of Agnieszka Weinar, Saskia Bonjour and Lyubov Zhyznomirska to be identified as the authors of the editorial matter, and of the authors for their individual chapters, has been asserted in accordance with sections 77 and 78 of the Copyright, Designs and Patents Act 1988. All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. Trademark notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe. British Library Cataloguing-in-Publication Data A catalogue record for this book is available from the British Library Library of Congress Cataloging-in-Publication Data Names: Weinar, Agnieszka, editor. | Bonjour, Saskia, 1980- editor. | Zhyznomirska, Lyubov, editor. Title: The Routledge handbook of the politics of migration in Europe / edited by Agnieszka Weinar, Saskia Bonjour and Lyubov Zhyznomirska. Other titles: Handbook of the politics of migration in Europe Description: Abingdon, Oxon ; New York, NY : Routledge, 2018. | Includes bibliographical references and index. Identifiers: LCCN 2018008056| ISBN 9781138201187 (hbk) | ISBN 9781315512853 (ebk) Subjects: LCSH: European Union countries–Emigration and immigration–Government policy. | European Union countries–Emigration and immigration–Political aspects. | Refugees–Government policy–European Union countries. | Labor supply–European Union countries. | Immigrants–Cultural assimilation–European Union countries. Classification: LCC JV7590 .R68 2018 | DDC 325.4–dc23 LC record available at https://lccn.loc.gov/2018008056 ISBN: 978-1-138-20118-7 (hbk) ISBN: 978-1-315-51285-3 (ebk) Typeset in Bembo by Wearset Ltd, Boldon, Tyne and Wear

Contents

List of figures List of tables Notes on contributors Acknowledgements

xii xiii xiv xxiii

Introduction: the case for regional approach to study politics of migration Agnieszka Weinar, Saskia Bonjour and Lyubov Zhyznomirska

1

PART I

Governance

13

  1 Migration governance in Europe: a historical perspective Adam Luedtke

15

  2 Research on the multi-­level governance of migration and migrant integration: reversed pyramids Ilke Adam and Tiziana Caponio   3 Politics of emigration in Europe Agnieszka Weinar

26 38

  4 Beyond methodological Western-­centrism: the ‘control gap’ debate reconsidered from a global perspective Blanca Garcés-Mascareñas

50

  5 Implementing migration policies: new research policies in a Europeanizing context Nora Dörrenbächer and Tineke Strik

60

vii

Contents

  6 Expertise, governing and migration in Europe Emma Carmel and Hester Kan

71

  7 Media and immigration: a political communication perspective Rens Vliegenthart

82



92

Section commentary Mikołaj Pawlak

PART II

Institutions

97

  8 The role of courts and legal norms Rebecca Hamlin and Hillary Mellinger

99

  9 EU institutions: venue for restrictions or liberal constraints? Ariadna Ripoll Servent

109

10 The party politics of migration  Pontus Odmalm

118

11 The participation, mobilization and political representation of migrants in Europe Pierre Monforte and Laura Morales

126



137

Section commentary Konrad Pędziwiatr and Witold Klaus

PART III

Integration

143

12 The governance of citizenship and belonging in Europe and the European Union Costica Dumbrava

145

13 Beyond national models: comparing migrant integration regimes Christophe Bertossi and Jan Willem Duyvendak

157

14 The civic integration turn Sara W. Goodman

167

15 Family migration and membership Anne-­Marie D’Aoust

179

viii

Contents



Section commentary Katya Ivaschenko-­Stadnik

190

PART IV

Irregular migration

197

16 Politics of irregular migration in Europe: moving beyond an EU-­driven research agenda Lyubov Zhyznomirska

199

17 Border management in Europe: Europeanization and its discontents Karolina S. Follis

213

18 Risk analysis as a governance tool in European border control Regine Paul

227

19 Security, industry and migration in European border control Martin Lemberg-­Pedersen

239

20 Return and readmission policy in Europe: understanding negotiation and implementation dynamics Florian Trauner

251

21 A spurious relationship? Assisted voluntary return and development Katie Kuschminder

261



274

Section commentary Artur Gruszczak

PART V

Asylum and international protection

281

22 The historical development of refugee protection in Europe Phil Orchard

283

23 Contemporary politics of international protection in Europe: from protection to prevention Petra Bendel

293

24 Does European refugee policy exist? Regional dimensions of the refugee protection approach in Europe Joanne van Selm

303

ix

Contents

25 A common European asylum system? How variation in Member States’ administrative capacity undermines EU asylum harmonisation Natascha Zaun

315



330

Section commentary Anne Wetzel

PART VI

Labour migration in European context

337

26 The labour market impacts of immigration in Europe Ravi Parekh and Carlos Vargas-­Silva

339

27 Allowing refugees to work or not? Policies and the economic integration of refugees in the EU 348 Sonja Fransen and Kim Caarls 28 The politics of care work and migration Franca van Hooren, Birgit Apitzsch and Clémence Ledoux

363

29 Migration and the welfare state Igor Jakubiak and Paweł Kaczmarczyk

374



383

Section commentary Agnieszka Fihel

PART VII

Pan-­European cooperation on migration management

389

30 The politics of EU external migration policy Natasja Reslow

391

31 International organisations and politics of migration in Europe Marta Jaroszewicz

401

32 The EU’s visa liberalisation policy: what kind of transformative power in neighbouring regions? Laure Delcour

410

33 The evolution of governance and financing of migration and development policy and politics in Europe Marieke van Houte

420

x

Contents



Section commentary Agnieszka Weinar

433

PART VIII

Researching migration in Europe

437

34 Apples and oranges? Politics of data sources on migration in Europe Anna Di Bartolomeo

439

35 Analysis of discourses and rhetoric in European migration politics Susana Martínez Guillem and Ivana Cvetkovic

450

Index

460

xi

Figures

  2.1 12.1 12.2 14.1 14.2 25.1 26.1 27.1 27.2

Multilevel governance Ius soli in Western Europe and in Central and Eastern Europe Dual citizenship in Western Europe and in Central and Eastern Europe Civic Integration Index (CIVIX) CITLAW scores of Language and Civic Knowledge Assessment, 2016 Strong and weak regulators in asylum policies in 2000 The textbook model Labour market mobility conditions across countries Labour market outcomes of refugees and other non-­EU born migrants, 15–64 years old, in the EU 27.3 Employment rates of refugees and other non-­EU born migrants, 15–64 years old, in the EU 27.4 Employment rate by reason for migration and years of residence in the EU, 15–64 years old

28 147 148 169 170 319 340 352

A The Worldwide Governance Indicators, Government Effectiveness, Estimates 2016 B Averages of replies in Eastern and Western European countries included in both European Social Surveys (ESS 2002 and 2016), Population size weight, Design weight (EES 2002 and 2016)

332

xii

355 355 356

335

Tables

20.1 20.2 21.1 25.1 27.1 27.2 34.1 34.2

EU readmission agreements (as of January 2017) Gap between return decisions and effective returns IOM assisted voluntary return flows 2016 by European country Three core issues reception conditions directive (before and after transposition of the directive) Overview of labour market access for asylum seekers in 34 selected countries Employment-­related integration support for humanitarian migrants in OECD countries, 2015 Moroccan migrants in France, 2005 Moldovan migrants living in Russia (a) and Italy (b) according to different sources, 2010

A Accession of European post-­socialist countries to the Convention relating to the Status of Refugees (1951) and the Protocol relating to the Status of Refugees (1967) B European Social Survey, ESS8–2016, ed.1.0, row percentage, Population size weight, Design weight (ESS 2016)

xiii

254 255 262 321 350 354 440 444

331 334

CONTRIBUTORS

Ilke Adam, PhD in Social and Political Science, is Research Professor at the Institute for European Studies of Vrije Universiteit Brussel, where she coordinates the Migration and Diversity research cluster. She teaches political science and ‘Diversity Policies in the European Union’. Among her recent publications: ‘Intergovernmental Relations on Immigrant Integration in Federal and Decentralised States’, special issue of the Journal Regional and Federal Studies edited with Eve Hepburn (forthcoming). Birgit Apitzsch is a Postdoctoral Researcher at the Sociological Research Institute (SOFI) in Göttingen, Germany. Her areas of research are the sociology of work, organisations and labour markets, industrial relations, institutional theory, comparative and transnational sociology. Most recent research centres on consequences of informalised and non-­standard employment with a focus on regulation and institutional change, migration, trafficking, and on the sociology of professions and service work. Petra Bendel is Professor for Political Science at Friedrich-­Alexander University of Erlangen­Nürnberg, Germany. She is the chairwoman of the Academic Advisory Council of the Federal Office for Migration and Refugees (BAMF ), member of the Expert Council of German Foundations on Integration and Migration (SVR) and a consultant for numerous expert commissions on European, national and regional levels. Christophe Bertossi is Senior Research Fellow and Director of the Center for migration and citizenship at the French institute of international relations (Ifri) in Paris. His research concerns citizenship, belonging and the roles of Muslims in public institutions. His latest books include La citoyenneté à la française: valeurs et réalités (CNRS, 2016) and European States and Their Muslim Citizens: the Impact of Institutions on Perceptions and Boundaries (edited with John Bowen, Jan Willem Duyvendak, and Mona Lena Krook, Cambridge University Press, 2013). Saskia Bonjour is Assistant Professor in political science. Her research focuses on the politics of migration and citizenship in the Netherlands and in Europe. She is especially interested in family migration, civic integration, gender and migration, and Europeanisation. She has ­published about diverse aspects of migration politics, including the impact of law and courts, xiv

Contributors

Europeanisation, party politics and the impact of news media on policymaking. The core question driving her research is how political and policy actors define identities and communities, that is how they distinguish between ‘us’ and ‘them’. Kim Caarls works as a Postdoctoral Researcher at the Netherlands Interdisciplinary Demographic Institute (NIDI), where she is involved in two projects: Families of Migrant Origin, a Life Course Perspective (FaMiLife), on the consequences of international migration for migrants’ life courses; and MobileWelfare, which looks at the role of welfare systems in origin and destination countries for migration patterns within and towards Europe. Kim’s research concentrates on how the context of international migration shapes how families are formed, transformed or dissolved, hereby emphasising the need for an origin and destination perspective in order to fully understand the functioning of family life across borders. Tiziana Caponio, PhD in Political Science, is Associate Professor at the Department of Cultures, Politics and Societies of the University of Turin, and fellow at Collegio Carlo Alberto. She teaches Political Science and Dynamics and Policies of Migration. She is co-­chair of the Imiscoe Standing Committee on ‘The Multilevel Governance of Migration and Integration Policy’ (www.imiscoe.org). Among her recent publications: ‘Theorizing Migration Policy in Multilevel States: The Multilevel Governance Perspective’, special issue of the Journal of Ethnic and Migration Studies edited with Michael Jones-­Correa (2017). Emma Carmel is Senior Lecturer at the University of Bath, UK. She has published widely on the governance of public policy in the European Union (EU), particularly in migration, welfare and labour market policies. Her two most recent projects investigate the governance of intra­EU migrants’ social rights, and the political economy of knowledge in EU governance. Ivana Cvetkovic is a Doctoral Candidate in the Department of Communication & Journalism at the University of New Mexico. Her research and teaching interests are situated at the intersection between media, technology and culture. She primarily focuses on news discourses constructed in multimedia texts especially in Eastern European and Balkan media. Her research interests have been impacted by her long-­time career in journalism and rapid changes in the news industry. Anne-­Marie D’Aoust is an Associate Professor of Political Science at the Université du Québec à Montréal (UQAM). She is also director of UQAM’s Centre de recherche en immigration, ethnicité et citoyenneté. Her main research project centres on the connections between love, governmentality and security when it comes to marriage migration management practices in Europe and North America. Laure Delcour is a Senior Research Fellow at The French Institute for International and Strategic Affairs (IRIS). Her research interests focus on EU policies in the post-­Soviet area, the EU–Russia partnership and on the European Neighbourhood Policy. She currently coordinates, with Dr Kataryna Wolczuk, a research project (http://euimpacteast.org). She holds a BA in history (Paris IV-­Sorbonne), a MA and a PhD in political science (Sciences Po Paris). She joined the French School of Administration’s Directorate of European Affairs in 2009. She lectures at the College of Europe (Bruges, EU International Relations Department) and at the Institute of Political Studies (Strasbourg) on the European Neighbourhood Policy (ENP) and the Eastern Partnership. xv

Contributors

Anna Di Bartolomeo holds a PhD in Demography from the University of Rome ‘Sapienza’. She was also educated at the Max Planck Institute for Demographic Research in Rostock and the Institute National d’Etudes Démographiques in Paris. She is currently Senior Research Fellow at the Ca’ Foscari University of Venice after working at the Migration Policy Centre, European University Institute as a Research Fellow. Her research interests embrace international migration statistics, gender and migration, domestic work, immigrants’ children and education and the integration of migrants. Nora Dörrenbächer is a PhD candidate at the Institute for Management Research of Radboud University (NL). She has an interdisciplinary background in European law, political science and public administration. Her current research focuses on the practical implementation of migration law in local and national migration offices. She has a special interest in frontline implementation, Europeanisation processes and EU compliance. Within the field of migration, she studies particularly family migration, asylum reception and return. Costica Dumbrava is Associate Researcher to the Maastricht Centre for Citizenship, Migration, and Development (MACIMIDE) of Maastricht University. He obtained a PhD in Political and Social Sciences from the European University Institute after studying at Leiden University and Central European University. His main areas of expertise are citizenship, migration and nationalism. His book entitled Nationality, Citizenship and Ethno-­Cultural Belonging: Preferential Membership Policies in Europe was published by Palgrave Macmillan in 2014. He also published articles in international journals, such as the Journal of Ethnic and Migration Studies, Ethnopolitics and Ethnic and Racial Studies. Jan Willem Duyvendak is Distinguished Research Professor of Sociology at the University of Amsterdam. His main fields of research currently are the transformation of the welfare state, belonging and ‘feeling at home’, and nativism. His latest books include The Politics of Home. Nostalgia and Belonging in Western Europe and the United States (Palgrave Macmillan, 2011), European States and their Muslim Citizens: the Impact of Institutions on Perceptions and Boundaries (co-­edited with John Bowen, Jan Willem Duyvendak, and Mona Lena Krook, Cambridge University Press, 2013), and Culturalization of Citizenship. Belonging and Polarization in a Globalizing World (Palgrave Macmillan 2016, edited with Peter Geschiere and Evelien Tonkens). Agnieszka Fihel, PhD, is Research Fellow at Centre of Migration Research, University of Warsaw, and Assistant Professor at Université Paris Nanterre. She defended her PhD thesis in economics in 2009 at University of Warsaw. She was awarded the scholarship of the Foundation for Polish Science (2009) and the scholarship of the Polish Minister of Science for young prominent scholars (2012–2015). She stayed as a post-­doc at the Institut national d’études démographiques (INED) in Paris (2009, 2011). Her research interests include contemporary demographic phenomena, such as international mobility in ageing populations and mortality patterns in countries of post-­communist transition. Karolina S. Follis is a Political Anthropologist who teaches in the Department of Politics, Philosophy and Religion at Lancaster University, UK. Her research interests centre on the dynamic intersections of border regimes, surveillance technologies, and the ideas and practices of human rights. Her regional specialism is Eastern Europe, especially Poland and Ukraine, but in recent years she has also focused on the contradictions of border policing in the Mediterranean. xvi

Contributors

She is the author several publications on the EU border regime, including the monograph Building Fortress Europe. The Polish-­Ukrainian Frontier (University of Pennsylvania Press, 2012). Sonja Fransen is a Postdoctoral Researcher at the University of Amsterdam, where she studies the drivers of migration using a long-­term and cross-­national perspective. Previously, she worked as a postdoctoral researcher on several projects related to (forced) migration at Maastricht Graduate School of Governance, Maastricht University, in collaboration with the Centre for Migration, Policy and Society (COMPAS) at the University of Oxford. Sonja’s research interests include (forced) migration, return migration, (post-­conflict) development, and remittances. She has exten������ sive fieldwork experience in various countries and has published several academic articles, book chapters, policy briefs and reports in the area of (forced) migration studies and development. Blanca Garcés-Mascareñas is a Senior Researcher at Barcelona Center for International Affairs (CIDOB) in the area of migration. She holds a PhD (cum laude) in Social Sciences from the University of Amsterdam and a BA in History and Anthropology from the University of Barcelona. Her PhD thesis was awarded the Dutch Sociological Association (NSV) prize for the best sociological dissertation defended in the Netherlands in 2009 and 2010. She has worked on immigration policies in Malaysia and Spain, the policymaking of integration policies from a multilevel perspective, political discourses on immigration and on irregular immigration from a comparative perspective. Sara W. Goodman is Associate Professor of Political Science at the University of California, Irvine. Her research examines democratic inclusion and the shaping of political identity through citizenship, immigrant integration and education policy. She is the author of Immigration and Membership Politics in Western Europe (Cambridge University Press, 2014), winner of the Amer­ ican Political Science Association (APSA) European Politics & Society Best Book Award. Her research has also been published in Comparative Political Studies, World Politics, West European Politics, Political Studies and Journal of Ethnic and Migration Studies. Artur Gruszczak is Associate Professor of Political Science at the Faculty of International and Political Studies, Jagiellonian University in Krakow, Poland. He was a coordinator of the Forum on EU Justice and Home Affairs at the European Centre Natolin in Warsaw. His principal interests and research areas include: strategic studies; EU internal security; migration and border studies. Recently he published Intelligence Security in the European Union. Building a Strategic Intelligence Community (Palgrave Macmillan, 2016) and Technology, Ethics and the Protocols of Modern War (co-­edited with Paweł Frankowski, Routledge, 2018). Rebecca Hamlin is Assistant Professor of Legal Studies and Political Science at the University of Massachusetts, Amherst. She is interested in how administrative agencies and courts adjudicate migration and citizenship questions, and political responses to judicial involvement in migration matters, both in the United States and in comparative contexts. Her first book, Let Me Be a Refugee: Administrative Justice and the Politics of Asylum in the United States, Canada, and Australia (Oxford, 2014) addresses these questions through a comparison of immigration bureaucracies. Her new project is focused on questions of migrant categorisation and the concept of a refugee. Franca van Hooren in Assistant Professor at the Political Science Department of the University of Amsterdam. At the European University Institute in Florence she wrote her dissertation xvii

Contributors

on the politics and practices of migrant care work in Europe (2011). Subsequently her research has continued to concentrate on the comparative politics of social policy, with a particular focus on migration, domestic work and the role of the trade unions in the Netherlands. More information and recent publications can be found at www.francavanhooren.info. Marieke van Houte studies the relationship between migration, development, conflict and change, from the perspective of migrants, policy and public perceptions. Her research is grounded in empirical fieldwork in a large variety of contexts. She completed her PhD dissertation on return migration after conflict at Maastricht University in 2014. Her book Return Migration to Afghanistan: Moving Back or Moving Forward was published in 2016 by Palgrave Macmillan. After having worked at the International Migration Institute at the University of Oxford as a Marie Curie Research Fellow, she is currently connected to the Vrije Universiteit Amsterdam. Katya Ivaschenko-­Stadnik is a Historian, Sociologist and Cultural Manager. She worked as Social Policy Advisor in The United Nations Development Programme (UNDP) (Ukraine). Now, as a Post-­Doc Fellow of the Institute of Sociology, National Academy of Sciences (Ukraine), she examines the issues of adaptation and integration of the displaced youth. She is a member of the national research team conducting long-­term national surveys to trace the trends of social development in Ukraine. Her latest publications include articles on the societal changes in Ukraine under the influence of the military conflict. Igor Jakubiak is a PhD candidate and a Research Assistant at the University of Warsaw (Centre of Migration Research). His research focuses on the impact that welfare arrangements have on contemporary migration, particularly in the EU. Using advanced econometric techniques, he aims at providing qualitative assessment of the effect that welfare generosity has on individual migration decisions and assimilation. Marta Jaroszewicz is a Migration Policy Expert at the Centre for Eastern Studies (OSW) in Warsaw and affiliate at the Centre for Migration Research of Warsaw University. Her research areas focus around the issue of migration policies, labour migration, visa policy and border management in Central Europe and post-­Soviet countries. Among others, she has recently coordinated two multinational research studies on migration forecasts in Eastern Europe and links between migration and armed conflicts. In 2015–2016 she served as a policy officer in the European Commission in Brussels, EU Support Group for Ukraine, where she was responsible for assisting Ukraine in the pursued migration reform. Author, co-­author and editor of several migration related-­books and studies as well as numerous articles. Paweł Kaczmarczyk is Director of the Centre of Migration Research at the University of Warsaw and Assistant Professor at the Faculty of Economic Sciences, University of Warsaw; Institute of Labour Economics (IZA) fellow, TFMI (Transcontinental Forum on Migration and Integration) fellow, and SOPEMI correspondent for Poland at Organisation for Economic Co-­operation and Development (OECD); in 2008–2011 he was a member of the Board of Strategic Advisers to the Prime Minister of Poland (responsible for demography, migration and labour market-­related issues). His main research areas include causes and consequences of labour migration (with special attention paid to analysis of migration processes in Central and Eastern European (CEE) countries), highly skilled mobility, methodology of migration research, labour economics, population economics and demography, international economics and migration policy. xviii

Contributors

Hester Kan is a Visiting Fellow at the Department of Social and Policy Sciences of the University of Bath. Witold Klaus is a Professor of Law, Criminologist and Migration Researcher. He is Assistant Professor at the Institute of Law Studies of the Polish Academy of Sciences, and works in the Centre of Migration Studies at Warsaw University. He serves as President of the Association for Legal Intervention. In 2009, he was awarded ‘Social Nobel Prize’ by Ashoka Foundation – Innovators for the Public. His distinctions also include a second prize for the best legal PhD thesis awarded by one of the leading Polish legal journals, State and Law (‘Państwo i Prawo’). His research interests include human rights, refugee and immigrant rights, criminology and victimology. Katie Kuschminder is Assistant Professor at Maastricht Graduate School of Governance, ­Maastricht University/UNU-Merit. She recently was a Netherlands Organisation for Scientific Research (NWO) Rubicon Research Fellow at the Global Governance Programme, Robert Schuman Centre for Advanced Studies, European University Institute in Florence, Italy. Her current research focuses on forced migration, irregular and return migration. She is the author of Reintegration Strategies (Palgrave, 2017) and has published in the Journal of Refugee Studies, Migration Studies and International Migration. Clémence Ledoux is Assistant Professor at the University of Nantes, France. Her main research interests are domestic work and care policies, institutional theory, sociology of occupations as well as comparative welfare regime analysis. She has published on public policies, domestic work, reconciliation policies of paid work and private life. She is currently researching the role of actors in the dynamics of welfare markets, with a focus on domestic work. Martin Lemberg-­Pedersen is Assistant Professor at Global Refugee Studies, Aalborg University. His current postdoctoral work, funded by the Independent Research Fund Denmark, performs critical analyses of slavery and migration control during Danish colonialism. In an earlier post-­doc at the Centre for Advanced Migration Studies, University of Copenhagen, funded by the Carlsberg Foundation, he analysed EU, Greek and Turkish refugee policies. Between 2009–2012, he was a PhD Fellow in Philosophy, University of Copenhagen, looking at European border externalisation policies to North Africa. In 2010, he was a Visiting Fellow at the Refugee Studies Centre (RSC), Oxford University. Adam Luedtke is Assistant Professor of Political Science at City University of New York– Queensborough Community College. He has held teaching positions at Washington State University and University of Utah, as well as a post-­doc at Princeton. His PhD is from the University of Washington. His committee was chaired by James Caporaso. His research analyses the politics of EU-­level immigration policy. He is co-­editor with Frank Jacob of Migration and the Crisis of the Modern Nation-­State? (Vernon Press, 2017). He has also published articles in the British Journal of Political Science, Governance, European Union Politics and the Policy Studies Journal. Susana Martínez Guillem is Associate Professor in the Department of Communication & Journalism at the University of New Mexico, USA. Her research interests are in cultural studies, critical discourse studies, migration, anti/racism, and social in/equality. Her work has appeared in several internationally recognised journals, including Discourse & Society, Critical Discourse Studies, European Journal of Cultural Studies, Communication & Critical/Cultural Studies and Journal xix

Contributors

of Intercultural and Intercultural Communication. She is also co-­author of Reviving Gramsci: Crisis, communication, and change (Routledge, 2016). Hillary Mellinger is a PhD student in the Justice, Law and Criminology Program at Amer­ican University. She also holds an MA in Political Science from George Mason University and a BA in International Relations and Modern Languages from Beloit College. The focus of her research is on comparative asylum/refugee law and policy. Pierre Monforte is Associate Professor of Sociology at the University of Leicester. His research focuses primarily on civil society and social movements, with an emphasis on movements of migrants. He has carried out empirical research on the mobilisations of asylum seekers and refugees in France, Germany, Canada, the United Kingdom and at the European Union level, from a comparative perspective. Laura Morales is Professor of Comparative Politics at Sciences Po (CEE). Her research focuses on political behaviour, public opinion, political parties and the politics of immigration in ­established democracies. She is undertaking a number of projects on the politicisation of immigration and on the political inclusion of ethnic and migrant minorities. Pontus Odmalm is Senior Lecturer in Politics at the University of Edinburgh. Particular research interests include party politics of migration (broadly understood) and the changing nature of political conflict in comparative perspective. He has published extensively on these topics, including The European Mainstream and the Populist Radical Right (Routledge, 2017; co-­ edited with Eve Hepburn) and The Party Politics of the EU and Immigration (Palgrave, 2014). Phil Orchard is Associate Professor of International Relations at the University of Wollongong and a Senior Research Fellow at the Asia-­Pacific Centre for the Responsibility to Protect. His research focuses on international efforts to provide legal and institutional protections to forced migrants and war-­affected civilians. He is the author of A Right to Flee: Refugees, States, and the Construction of International Cooperation (Cambridge University Press, 2014), which won the 2016 International Studies Association Ethnicity, Nationalism, and Migration Studies Section Distinguished Book Award, and the forthcoming book Protecting the Internally Displaced: Rhetoric and Reality (Routledge, 2018). He is also the co-­editor, with Alexander Betts, of Implementation in World Politics: How Norms Change Practice (Oxford University Press, 2014). Ravi Parekh is Assistant Economist in the UK Civil Service currently based at the Ministry of Housing, Communities and Local Government (MHCLG). He previously worked at the Migration Observatory at the University of Oxford in 2017 as a Research Coordinator, and provided contributions to the Migration and Brexit project, as well as support to various other projects and pieces of work. He co-­authored this chapter during his time working at the Migration Observatory. Regine Paul is a political scientist at Bielefeld University’s Law and Society Unit and a John F. Kennedy Memorial Fellow at the Minda de Gunzburg Center for European Studies at Harvard University in 2017/2018. Her research and publications focus on migration and mobility governance in Europe, with a special focus on labour migration, and on institutions of risk regulation in Europe including in the domains of work safety, food safety, flooding and border control. She is a co-­chair of the research network ‘European Integration and the Global Political Economy’ at the Council for European Studies. xx

Contributors

Mikołaj Pawlak is Assistant Professor at the University of Warsaw and Vice-­president of Polish Sociological Association. His research interests include such topics as new institutionalism, labour market, migration and the sociology of knowledge/ignorance. Konrad Pędziwiatr holds a PhD from the Katholieke Universiteit Leuven, and an MA from University of Exeter and Jagiellonian University. He is Assistant Professor in the Department of European Studies at Krakow University of Economics, Poland. He is the author of numerous scientific publications on migration and social movements in Europe and the Middle East and on Islam and Muslims in Europe. His monographs include The New Muslim Elites in European Cities (VDM Verlag Dr. Müller, 2010) and From Islam of Immigrants to Islam of Citizens: Muslims in the Countries of Western Europe (Zakład Wydawniczy ‘Nomos’, 2005, 2007), and a co-­authored Polish Migration Policy: In Search of New Model (Warsaw University Press, 2015). Natasja Reslow is Assistant Professor at the Faculty of Law at Maastricht University. She holds a PhD in Political Science (Maastricht University, 2013). Her main research expertise is in the external dimension of EU migration policy. The results of this research have been published in the Journal of Common Market Studies, International Migration, and the European Journal of Migration Law. Currently Natasja is working on the National Integration Evaluation Mechanism (NIEM) project about the integration of refugees in Europe. Joanne van Selm is an Independent Consultant on Migration and Refugee Policy Issues, based in Washington DC. Her work has focused on European approaches to refugee protection, including studies for the European Commission on resettlement, relocation and joint processing. Her clients include UNHCR, UNDP, IOM, Dutch governmental and non-­governmental bodies and ECRE. She also serves as Associate Director for Research at Eurasylum. She co-­edited the Journal of Refugee Studies (OUP) (2001–2011) and was an Adjunct Professor at Georgetown University (2012–2013), Senior Policy Analyst at the Migration Policy Institute (2001–2006) and Lecturer in Political Science at the University of Amsterdam and the Vrij Universiteit, Amsterdam. Ariadna Ripoll Servent is Junior Professor of Political Science and European Integration at the University of Bamberg. Her research interests include European institutional and policy change in the area of EU internal security policies, in particular asylum, irregular immigration, counter-­terrorism and data protection. She has published widely on the role of the European Parliament in the area of freedom, security and justice. Tineke Strik is Professor of Migration Law of Radboud University (NL). She conducted research on the decision-­making of two migration directives and their effects on the national legislation of the Netherlands and Germany. She coordinated comparative researches on integration tests and on family reunification policies, and their impact on integration of migrants. Other fields of expertise are long-­term residence, asylum law, borders and the externalisation of migration policies. She is a member of the Dutch Senate since 2007 and a member of the Parliamentary Assembly of the Council of Europe, where she is rapporteur on migration issues. Florian Trauner is Research Professor at the Institute for European Studies of the Vrije Universiteit Brussel (VUB) and Visiting Professor at the College of Europe. His research interests concern the field of European integration, in particular migration, asylum, visa, return and counter-­terrorism policies, and dynamics of EU decision-­making. Among his recent publications is the Routledge Handbook of Justice and Home Affairs Research (with Ariadna Ripoll Servent, xxi

Contributors

Routledge, 2018). He had permanent or visiting positions at Renmin University of China, the University of Vienna, Sciences Po Paris and the EU Institute for Security Studies. Carlos Vargas-­Silva is Associate Professor and Senior Researcher at the University of Oxford where he is based at the Centre for Migration, Policy and Society (COMPAS). He currently leads the Horizon 2020 REMINDER project about the implications of intra-­EU migration and the ECONREF project which explores the integration of refugees in the UK. He is Associate Editor of the journal Migration Studies. He was also one of the researchers that developed the Migration Observatory at the University of Oxford in 2010, and acted as director of the Migration Observatory in 2014 and 2017. Rens Vliegenthart is Full Professor for Media and Society at the Amsterdam School of Communication Research, University of Amsterdam (UvA). His research focuses on media–politics relations, media coverage of social movements, election campaigns, and economic news coverage. Recent work has appeared in journals such as Communication Research, Social Forces and European Journal of Political Research. He is the editor of Acta Politica. Agnieszka Weinar is currently Adjunct Research Professor at the Institute of European Union and Russian Studies at Carleton University and previously a Research Fellow at the European University Institute (EUI). Her current research interests address external and internal aspects of EU migration and mobility policy and North–North migration. Apart from a wide range of policy papers and research reports, she has published articles in Journal of Ethnic and Migration Studies, International Migration, Journal of Migration and Refugee Studies, and she authored a number of chapters in edited volumes. She is editor and co-­editor of two special issues and three volumes. Anne Wetzel is Post-­Doctoral Fellow and project director at the Mannheim Centre for European Social Research (MZES), University of Mannheim, Germany. Her research interests include external democracy promotion, international organisations, and political transformation in Central and Eastern Europe. Among others, she has published on the reform of Ukrainian migration and asylum policy in a co-­authored book on Democracy Promotion by Functional Cooperation. The European Union and its Neighbourhood (Palgrave, 2015) and an article in Eurasian Geography and Economics (2016). Natascha Zaun is Assistant Professor in Migration Studies at the European Institute of the London School of Economics and Political Science (LSE). She holds a PhD in Political Science from the Bremen International Graduate School of Social Sciences. Prior to joining LSE, Natascha was Junior Research Fellow at the Refugee Studies Centre at the University of Oxford, specialising in Global Refugee Policies. Her research addresses EU and global refugee and immigration policies, with a special focus on EU decision-­making in asylum policies. She is an author of EU Asylum Policies: The Power of Strong Regulating States (Palgrave Macmillan, 2017). Lyubov Zhyznomirska is Assistant Professor in the Department of Political Science, Saint Mary’s University, Canada. Her research interests include such areas as migration, citizenship, foreign policy and security studies, with the specialisation in the post-­Soviet countries and the EU. She studies the politics of migration governance in Europe (with a focus on irregular migration) and the EU’s external migration relations with the neighbouring countries. She has published in Comparative European Politics, Ethnicities and Review of European and Russian Affairs, and in edited collections on the EU’s relations with its Eastern neighbourhood countries. xxii

Acknowledgements

The Editors would like to thank Melissa Siegel at UNU-­Merit for her work and support in the early stages of the editorial process. We also want to thank Andrew Taylor at Routledge for his support of the project and Laura Cleton for her work on the final submission. In addition, Agnieszka Weinar would like to acknowledge the funding of the EU 7th Framework Programme (MSC IOF, GA 624433) that made work on this project possible.

xxiii

Introduction The case for regional approach to study politics of migration Agnieszka Weinar, Saskia Bonjour and Lyubov Zhyznomirska

Unlike settler societies such as the United States or Australia, European nation-­states generally do not perceive of themselves as countries of immigration. Rather than being part of their national founding or ongoing nation-­making myths, immigration in Europe has historically been perceived as exceptional to the normal state of things – a disturbance or even a threat. However, Europe’s history is, in fact, characterised by migration driven by war, imperialism, trade, faith, poverty, love and myriad other reasons. More recently, the fall of communist regimes in 1989–1991 brought about radical changes in human mobility on the continent, as liberalised border regimes induced population outflows on a massive scale, and civil wars in the former Yugoslavia awoke the spectre of ethnic violence, displacing thousands of people. In addition, the post-­Maastricht European Union (EU) (1991) started building its migration policy, thus affecting people’s movements both within, and towards, the EU. Expanding European migration systems (i.e. East–West and South–North) prompted searches for new policy responses across the continent, as all countries in Europe gradually became both receiving and sending countries for migration. To a large extent, the successes of these policy responses have been uneven. The flow of asylum seekers from non-­European countries to the EU in 2014–2016, which eclipsed any previous asylum seeker flow to Europe since World War II, uncovered the variations in public and governmental responses to immigration across the continent. First of all, there were differences in the rise of anti-­immigrant attitudes expressed in public debates and policy reactions. While such attitudes may be observed throughout Europe, they have been particularly intense in European countries that had not previously experienced significant waves of immigration, such as Poland or Hungary. Second, there were differences in understanding and the level of awareness among political elites and the public in various European countries regarding immigration and the complexity of related social, economic and legal issues, which, arguably, have been the lowest in countries such as Romania and Lithuania, which experience negligible immigration flows. Within the EU in particular, the steep rise in asylum inflows has resulted in a severe political crisis. Any attempts to come up with an EU-­wide policy response that is in line with existing EU asylum and migration policies and their underlying principles of solidarity and burden-­sharing, have failed to gain acceptance from member states in which (non-­European) immigration flows have become suddenly politicised (and this does not concern only Central Eastern Europe). 1

Agnieszka Weinar et al.

The ‘asylum crisis’ that Europe has experienced has served to unmask the West-­East tensions on migration issues that had remained depoliticised and largely hidden in the context of the accession process for new EU member states. During that process, migration policy-­making was packaged into the ‘technocratic’ language of ‘policy transfer’ and ‘adaptation’ to existing norms, specifically in the area of human rights and humanitarian migration. In recent years, the question of how to share the burden of hosting increasing numbers of humanitarian migrants in the EU has provoked a fundamental political discussion about norms and values surrounding migration and political membership – a discussion that had been dormant in Eastern and Central European countries due to a lack of any meaningful migration intake since at least the early 2000s. In particular, xenophobic, racist and nativist responses have become strikingly visible in public and political discussions regarding the potential impact of hosting foreign populations that are perceived as culturally different from the receiving societies. These discussions are taking place in societies which largely remain emigrant-­sending within the pan-­European migration system and whose experiences since 1989 with immigration or foreign labour migration have largely been limited to hosting nationals from neighbouring European countries, as is the case for Poland and Hungary. Whether and how this newly heightened politicisation of migration and asylum seeking across Europe will affect both national and European regimes of migration management, and the politics of migration in Central Eastern and European (CEE) countries and Europe overall is worth pondering about. This Handbook seeks to capture the state of continually evolving responses and processes in European societies, in an attempt to better understand a potentially drastic and pervasive shift in the way politics of migration unfolds and affects people’s lives across the continent and beyond. It also highlights areas, issues, and questions for future research on the politics of migration in Europe.

Politics of migration We define the ‘politics of migration’ as a complex process in which various political, social and economic actors negotiate access to, and membership in, a given political community, with an understanding that these actors are not limited to the national arena. Politics of migration can thus be understood as politics of membership. These politics evolve from a basic negotiation over who is allowed in or out (politics of entry/exit), who is accepted as a permanent resident (politics of residence and integration), and how a community defines its boundaries (politics of citizenship and belonging). Within each of these realms is a scene where power plays take place between actors, practices and discourses, the continual interactions between which shape our understanding of migration and the ways to address it. The ways in which these power plays develop shape the politics of migration. The politics of migration has been a fashionable research topic in the last 40 years or so, with Zolberg (1978) initiating the line of inquiry in the North Amer­ican context. Since the late 1990s, a call to ‘bring the State back in’ (Brettell and Hollifield 2000) to the study of migration has sparked the evolution of a lively field of study. It has brought to light several pertinent questions on the nature of migration policy development and its impact on migration trends at the macro level, as well as its impact on individual choices at a micro level. However, migration studies developed with an internal fault: the field has created definitions, concepts and frameworks of analysis geared to studying its main subject of analysis – a Western liberal democratic country of destination (Joppke 1999; Mau et al. 2012, see Garcés-Mascareñas, in this volume). Moreover, the dominance of Amer­ican scholarship resulted in a greater focus on themes that have been characteristic to the pluralist conception of politics in the USA, including party 2

Introduction

p­ olitics (Tichenor 2009; Zolberg 2009), lobbyist groups (Freeman 1995), and voter behaviour in relation to migration (Alvarez and Butterfield 2000; Ramakrishnan and Espenshade 2001). This particular research agenda was exported outside of the North Amer­ican context and has been applied to the study of migration politics in some European states. This was frequently done from a comparative perspective (for example, see Fetzer 2000; Hollifield 1992), or by adding new research paths, such as in the comparative study of citizenship regimes (Brubaker 1992) or integration regimes (Castles 1995). Nevertheless, until the mid-­1990s, the study of the politics of migration remained focused on a limited number of western European countries, with a total absence of studies on Central and Eastern Europe and, for that matter, the EU itself. In contemporary research on the politics of migration in Europe, we observe a broad range of conceptualisations of ‘politics’, ranging from quantitative analyses of party politics (Betz 1993; Mudde 1999; van der Brug, Fennema and Tillie 2000; van Spanje 2010), to post-­structuralist discourse analysis (De Cillia, Reisigl and Wodak 1999; Huysmans 2000; Favell and Hansen 2002; Statham and Geddes 2006). However, the geographical scope of this scholarship has barely reached beyond the countries of the European West. A comprehensive ‘European’ analysis has therefore remained out of reach. Since the early 2000s, as the competences of the EU with regard to asylum and migration have become institutionalised, the EU level of migration politics has become a focus of analysis for migration scholars (Geddes 2005; Guiraudon and Joppke 2001; Lavenex 2001b; Triandafyllidou 2003). At approximately the same time, as the influence of the EU over the accession countries in Central and Eastern Europe in the area of migration and asylum increased, migration politics in the region began to attract scholarly attention (Boswell 2003; Lavenex 2001b). Still, research that examines the experiences of Central and Eastern European countries, within and beyond the EU, has not entered the mainstream of academic migration studies. The main reason for this state of affairs is the dominance of English in mainstream scholarship, whereas most scholarly work in Central and Eastern European countries is done in other languages. This has been slowly changing in recent years, but the knowledge gap persists.

European Union vs Europe By 2018, Europe as a continent had developed elaborate legal frameworks and practices that have shaped the politics of migration in all of its 51 countries. This happened as a result of European integration dynamics emanating from two cores. First, European countries found themselves under the influence of pan-­European institutions (such as the Council of Europe and the Organization for Security and Co-­operation in Europe) and various intergovernmental processes sprawling out across the continent (for example, the Budapest Process and Söderköping Process) as they pursued the ‘added value’ that these venues provided to governments. Second, since the late 1990s, the EU has acted as a major centre of gravity on the continent, with an active normative agenda and externalisation pressures emanating from harmonised migration and border regulations in the emergent ‘area of freedom, security and justice’ in the EU. Consequently, phenomena of policy convergence and/or divergence, policy learning, or policy resistance are at the core of studying the politics of migration in Europe. Political, social and economic changes sweeping across the continent over the last 30 years produced particular migration-­related tensions, which we believe to be distinctly European. They are tensions between migration and mobility, immigration and social class, and between human rights and migration controls.

3

Agnieszka Weinar et al.

Migration and mobility In European political discourse, ‘migration’ and ‘mobility’ represent two entirely different things. Across the continent, migration has been portrayed as a problematic and mostly negative phenomenon, whereas mobility tends to be viewed positively as an important element increasing people-­to-people contacts and economic growth. To give an obvious example of these differentiations in the discourse, students and researchers tend to be viewed as ‘mobile’ Europe­wide, while seasonal workers are ‘migrants’. Migration and mobility are thus key concepts to examine in order to understand political discourses across Europe. Whether people are perceived and categorised as ‘immigrants’ or as ‘mobile’ depends on their particular political context, which is determined by regional agreements, such as the Nordic Passport Union, State Union of Russia and Belarus, the EU or the Eurasian Union (Dumas and Goldner Lang 2015; Goldner Lang 2011; Weinar 2014). The citizens of such economic/political regions automatically gain certain rights, ranging from passport-­free international mobility, to settlement rights, and labour market and welfare rights, all of which are linked to their passports. The exact scope of these rights is based on multilateral treaties that establish such political and economic agreements. Persons who fall under such regional arrangements have more de-­facto migration rights – referred to as ‘mobility’ rights – than those who do not. A prime example of this tension is found when examining EU freedom of movement. In the EU jargon, its citizens do not migrate; rather, they exercise their right to mobility. Policy-­wise, EU nationals are excluded from national rules and regulations. In practice, this often means that they are excluded from integration pressure, such as compulsory courses and exams, but it also means they do not have access to integration support, as they are left to navigate the experience alone (Barbulescu 2013; Recchi and Favell 2009). However, as the Brexit debate has highlighted, in the eyes of the public, some EU nationals may very well be viewed as ‘unwanted migrants’, just like any other immigrant group. Interestingly, when it comes to the politics of migration, EU mobility or any other politically supported mobility of ‘the alike’ in Europe is rarely framed as an immigration issue, even in academic contexts. Most of academic work across the continent has been focused on non-­EU migration, and not on mobility within Europe. Our Handbook reflects this focus.

Immigration and social class Class plays a key role in the politics of migration in Europe, even though politicians very seldom mention ‘class’ explicitly. One of the recurring themes in the problematisation of immigration in various European countries is the notion that Europe has been receiving the wrong kind of immigrants – specifically, not the best and the brightest but rather the ones with ‘poor prospects’ (Bonjour and Duyvendak 2017) because of their low education and poor skills; they are deemed to be those who are likely to impact European economies and welfare states negatively rather than positively. Many European politicians speak enviously of North Amer­ican migration regimes, which they imagine to be entirely geared towards economic-­based selection. There is little awareness that family-­related migration makes up the largest part of permanent immigration to the United States. Family migrants represented 680,000 of the 1,051,000 persons obtaining lawful permanent residence status in 2015 (Homeland Security 2016). Similarly, the 60 per cent cap reserved for the economic migrants category in the Canadian point system includes the spouses and children of the primary migrant. In 2015, 79,000 primary applicants in economic class arrived with 91,000 accompanying family members, all of which were included in the 4

Introduction

count towards the economic migrant class cap (CIC 2015). Nevertheless, admitting migrants primarily on familial or asylum grounds rather than on economic grounds (labour migrants) is perceived as a European particularity – and a problematic particularity at that. It is this perception that led French President Nicolas Sarkozy to call for ‘immigration choisie’ rather than ‘immigration subie’, i.e. immigration that is actively chosen rather than passively undergone (FranceInfo 2012). In contrast to what such political discourses might suggest, European countries do have their own longstanding, economically driven labour migration policies. In the first post-­war decades, various north-­western European countries implemented large-­scale ‘guest worker’ recruitment programmes. By the time these programmes were closed in the mid-­1970s, an alternative policy framework for large-­scale labour migration in a large part of Europe had been put in place – that is, provisions for the free movement of workers within the Common Market in the European Communities. Other forms of labour migration policies have been developed since then, both at national and at EU levels for specific categories of workers, mostly targeting highly skilled and seasonal workers. Southern European countries, in particular, have also implemented regularisation programmes to allow undocumented labour migrants to access legal residence. In other words, European countries have long had a broad range of policy instruments at their disposal to selectively admit their immigration choisie. Furthermore, humanitarian admission policies, be they for family migrants or refugees, are not disconnected from economic rationales. Civic integration programmes, which have been implemented in a great many European countries (see Goodman, in this volume), require family migrants and refugees alike to participate in language and civic education, as well as labour market integration programmes, with the aim of decreasing their welfare dependency and increasing their economic and social participation. In the most restrictive countries, such as the Netherlands, failure to pass civic integration tests may not only result in serious financial costs, but also in the denial of permanent residency. The economic stratification of family reunification rights in Europe is especially well documented, with scholars pointing to the red carpet laid out for the families of highly skilled labour migrants (Staver 2015), while other migrants and – increasingly – citizens have to meet restrictive employment and income requirements in order to be allowed to bring their foreign spouses and children over (Block and Bonjour 2013; D’Aoust this volume; Kofman 2018). Finally, while the vast majority of scholars present economic considerations and identity concerns as two distinct rationales shaping migration policies in distinct ways, a recent strand of scholarship explores the ways in which perceptions of economic utility intersect with notions of cultural belonging in the politics of migration in Europe. Political sociologists working on labour migration and irregular migration have shown that self-­sufficiency, hard work and economic worth have become part of the ‘national values’ or ‘national identity’ serving to distinguish those who belong from those who do not (Anderson 2013; Chauvin, Garcés-Mascareñas and Kraler 2013; Paul 2015). More broadly, scholars have argued that the politics of migration and belonging in Europe are thoroughly classed, as they are based on implicit representations of the national community as hard-­working middle class, while unwanted migrants are framed as the undeserving poor (Bonjour and Duyvendak 2017; Elrick and Winter 2017).

Human rights and migration controls Europe perceives of itself as the birthplace of human rights. It has a powerful human rights framework, formulated in the European Convention of Human Rights, executed through the European Human Rights Court. The EU is credited for pioneering post-­national membership 5

Agnieszka Weinar et al.

rights by extending social, economic and even political rights to immigrants (Soysal 1994). These post-­national membership rights, derived from the principle of the free movement within the EU, have been further entrenched as EU citizenship rights in post-­Maastricht and post-­ Lisbon EU (Isin and Saward 2013; Maas 2007). In the area of migration, the humanitarian image of Europe, and specifically of the EU, has been a rhetorical driving force spurring policy change, among other things, with regard to addressing the abuse of irregular workers and, in the last decade, the loss of life at sea by migrants seeking access to Europe (for further problematisation of this image, see Follis and Lemberg-­Pedersen, both in this volume). However, historically, Europe has also been a place that various groups have left to escape famine, disease, poverty or persecution, as well as a place where others have sought refuge for similar and additional reasons (such as civil or colonial wars, persecution, or poor governance). Geography, wealth, political and economic order, and security continue to draw those seeking better life chances to Europe. However, in response to significant post-­1989 migration flows on the European continent, including the flow of less well-­to-do Europeans, (Western) Europe restricted its border and migration control policies. Since then European governments have been engaged in an intricate balancing act between preserving Europe’s humanitarian image on the one hand, and addressing anxieties about security, order and well-­being on the other hand. Europe has been engaged in controlling migration flows and reasserting sovereign control over the borders and access to the territory through, among other things, visa policies, the fortification/militarisation and technological equipping of borders, new wall and fence making in the south-­east of Europe, and increased surveillance and internal policing of foreign population. It is also a continent where detention and deportation have been growing, and where return is proclaimed as a ‘humane’ solution to ‘unwanted’ populations remaining in EU territory. There are constant challenges and tensions between labour demands and immigration restrictions, and between the need for protection and the lack of safe territorial passages for people fleeing persecution. Migration controls and policies preventing the arrival of asylum seekers on EU territory have further diversified irregular migration flows, pushing asylum seekers to mainly use illegal routes to access the EU, and revealing the inherent tension between human rights and the desire to maintain sovereignty over their borders and those policies which determine who gets to be included in the political community. The last two decades have revealed the ongoing tensions between preserving the sovereign right of European states to – individually or collectively within the EU – control their borders and arrivals into their territories, and the desire to preserve Europe’s image as a continent that honours its human rights and humanitarian commitments. Despite various efforts to seal the borders and engage ‘transit’ and origin countries in controlling and preventing the arrival of migrants on EU territory, mixed migration flows continue to pose multiple political, social, humanitarian, and moral challenges at the local, national and European level (Triandafyllidou and Bartolini 2017, p. 5). The reluctant and often chaotic reception of Syrian asylum seekers heightened Islamophobia throughout Europe but it also showed the compassion of Europeans. Praised by the Commission as an effective tool to stem migration flows towards the EU, the EU–Turkey migration deal and the EU’s migration pacts with countries like Libya, where slavery of migrant workers has been documented (IOM 2017), have also been highly criticised. Such diplomatic and policy solutions not only hurt Europe’s humanitarian image, but also place in jeopardy the result of years of promoting the EU’s asylum standards to neighbouring countries (Collett 2016; Rankin 2017; Toaldo 2017). Being of mixed nature, migration flows through the Southern routes (including Western Mediterranean, central Mediterranean and Eastern Mediterranean routes) have placed humanitarian issues related to migration management front and centre. Saving human lives at sea has 6

Introduction

been turned into a spectacle for mass consumption, prompting not only the security-­based rationale of the state apparatus in response to ‘uncontrolled’ flows and those who facilitate the ‘illegal’ journeys, but also expressing itself as compassion, such as that which was witnessed in the Greek citizens’ response to the arrivals of Syrians, and non-­governmental organisations’ mounting efforts to save lives. However, despite the political rhetoric about development and addressing the root causes of irregular migration, security is the driving logic of policy responses. Scholars have demonstrated that policies targeting networks and facilitators involved in moving people to Europe in illegal or semi-­legal ways constantly innovate and adapt their business models, in which, for that matter, desperate people partake for the sake of their survival or better life chances for themselves or their families. Being located in close proximity to major ongoing civil and international conflicts in Yemen, Syria, Ukraine, Sudan and South Sudan, each with their past colonial links, various parts of Europe still act as magnets to people on the move. Moreover, population growth in African countries, in conjunction with the growing share of young populations there, will continue to make people choose geographic mobility if economies and polities are unable to provide for growing workforces.

Scope and organisation of the Handbook This Handbook is organised into eight parts, each representing an important field of scholarly inquiry into the politics of migration in Europe. Each part, with the exception of the final methodological Part VIII, includes a commentary. The ambition of this Handbook is to go beyond the study of the politics of migration in the handful of Western European and Southern European countries to showcase a European approach to the study of migration politics, inclusive of the tendencies in all geographical parts of Europe (including Eastern Europe, the Western Balkans and Turkey), and of the influences of the EU on the continent and beyond. To that end, the overarching question being critically examined by the Handbook is: What is exceptional about European politics of migration and its study? However, it has proved challenging to offer a comprehensive continental European perspective with each contribution. Indeed, some areas of academic scrutiny have not been developed enough in many parts of Europe and thus have not yet influenced European academic thought. There are two related reasons for this. First, since the beginning of the second half of the twentieth century, only a handful of countries in north-­western Europe have had extensive experience with immigration and thus, have had the incentive, time, and resources to develop robust academic responses to the variety of issues surrounding the politics of migration. In a vast majority of European countries immigration did not become an issue until 2015. Second, scholars in Eastern Europe have been dealing with migration mostly from the perspective of countries of origin, because even in recent years emigration has often overshadowed immigration, both in terms of numbers and in terms of public and political concern. Scholarship on emigration is, in practice, a separate category in migration studies. The resulting dominance of Western-­centric perspectives in migration studies in Europe is reflected in various chapters in this Handbook. Nevertheless, in order to cover as much ground as possible in developing a continental approach to the study of the politics of migration, we invited section commentators to debate those concepts developed in Western Europe, and discuss their usefulness and relevancy in other European regions. The Governance part (I) identifies the peculiarities of European migration governance and the way in which it has been studied. The contributing authors explore the Europeanised and  multilevel structure of migration governance in Europe, as well as processes of policy 7

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i­mplementation and the role of expertise and media. Furthermore, this part critically examines common wisdoms in migration scholarship, such as the notion that migration governance in Europe is about immigration rather than emigration, or that it is characterised by a control gap. The authors contributing to the Institutions part (II) consider which institutions shape the politics of migration in Europe. They ponder whether the impact of the courts is more substantial in Europe than elsewhere, and whether EU institutions exercise restrictive or liberalising influences on EU member states. Finally, they zoom in on political processes – specifically, addressing whether anti-­immigrant politics shape European party politics in ways that are particular to the continent and whether immigrants in Europe have access to political institutions to a greater degree than in other parts of the world. The part dealing with Integration (III) proposes several approaches to this very European concept. The authors discuss how European nation-­states deal with being, or becoming, immigration countries and how useful ‘national models of integration’ are to understanding similarities and differences, or convergences and divergences among them. Furthermore, this part presents debates on citizenship and civic integration policies as policy instruments to regulate belonging in Europe. Moreover, the authors also debate how legal, economic and cultural hierarchies of belonging stratify access to specific rights, such as family reunification. The Irregular Migration part (IV) examines contemporary border and identity politics, as well as governance of migration through risk and security in Europe. While Europe is not unique in terms of experiencing irregular migration flows, it has arguably been unique in terms of the political responses it has designed thus far to address the mixed migration flows towards the continent and deal with persons without regulated status. Indeed, the integration of the European single market and the construction of the EU as an ‘area of freedom, security and justice’ has created a different context in which policy-­making operates in this domain, with EU-­made policies and practices having external effects beyond its territory. The authors in this part present the dominant themes, actors, policies, practices and dynamics related to how irregular migration has been conceptualised and dealt with more broadly across Europe. The part on Asylum and International Protection (V) examines the institutional, legal and political dimensions of asylum seeking and refugee protection in Europe. The discussion is situated in the history of forced displacement on the continent and Europe’s role in the construction of the international refugee regime. The authors present various aspects related to the politics of humanitarian migration in Europe, while entertaining questions of solidarity and the harmonisation of asylum seeking, and the limitations of the regional protection system in the EU. The part on Labour Migration (VI) in the European context adds to understandings of Europe as special or unique in this area, given not only its policies regarding labour migration, but also the impact of immigration on European economies and societies. That impact is often misrepresented in political and public discourses. The authors provide an overview of several ideas, misconceptions and research puzzles that dominate economically oriented scholarship on immigration in Europe, including an analysis of how the politics of migrant care work is shaped by intersecting care regimes and migration regimes. The part on Pan-­European Cooperation on Migration (VII) considers various aspects of the uniquely European phenomenon of mixing external relations with immigration policies. The authors consider a range of tools used by European actors to shape mobility and migration geographies on the continent. They also examine the complexity of European cooperation arrangements, including the migration and development agenda, which primarily has been developed on the European continent. 8

Introduction

Finally, the Handbook closes with a short part on Researching Migration in Europe (VIII). This part focuses on peculiarities of data collection and analysis, as well as methodological approaches across the continent. It sheds light on pan-­European efforts to make comparative studies possible, but also showcases uniquely European advances in methodologies of migration research.

References Alvarez, R. Michael and Tara L. Butterfield. 2000. ‘The Resurgence of Nativism in California? The Case of Proposition 187 and Illegal Immigration’. Social Science Quarterly 81(1): 167–179. Anderson, Bridget. 2013. Us and Them? The Dangerous Politics of Immigration Control. Oxford: Oxford University Press. Barbulescu, Roxana. 2013. ‘The Politics of Immigrant Integration in Post-­Enlargement Europe Migrants: Co-­Ethnics and European Citizens in Italy and Spain’. PhD thesis, Department of Political and Social Sciences, European University Institute, Florence, Italy.  Betz, Hans-­Georg. 1993. ‘The New Politics of Resentment: Radical Right-­Wing Populist Parties in Western Europe’. Comparative Politics, 25(4 ), 413–427. Block, Laura and Saskia Bonjour. 2013. ‘Fortress Europe or Europe of Rights? The Europeanisation of Family Migration Policies in France, Germany and the Netherlands’. European Journal of Migration and Law 15(2): 203–224. Bonjour, Saskia and Jan Willem Duyvendak. 2017. ‘The “Migrant with Poor Prospects”: Racialized Intersections of Class and Culture in Dutch Civic Integration Debates’. Ethnic and Racial Studies, online first: http://dx.doi.org/10.1080/01419870.2017.1339897. Boswell, Christina. 2003. ‘The “External Dimension” of EU Immigration and Asylum Policy’. International Affairs 79(3): 619–638. Brettell, Caroline and James Frank Hollifield. 2000. Migration Theory: Talking Across Disciplines. Routledge. Brubaker, Rogers. 1992. Nationhood and Citizenship in France and Germany. Cambridge, MA: Harvard University Press. Castles, Stephen. 1995. ‘How Nation-­States Respond to Immigration and Ethnic Diversity’. Journal of Ethnic and Migration Studies 21(3): 293–308. Castles, Stephen, Mark J. Miller and Hein De Haas. 2013. The Age of Migration: International Population Movements in the Modern World. Palgrave Macmillan. Chauvin, Sébastien, Blanca Garcés-Mascareñas and Albert Kraler. 2013. ‘Working for Legality: Employment and Migrant Regularization in Europe’. International Migration 51(6): 118–131. doi: 10.1111/ imig.12109. Citizenship and Immigration Canada (CIC). 2015. ‘Facts & Figures 2015: Immigration Overview – Permanent Residents – Annual IRCC Updates’. Retrieved 11 April 2018 from https://open.canada.ca/ data/en/dataset/2fbb56bd-eae7-4582-af7d-a197d185fc93. Collett, Elizabeth. 2016. The Paradox of the EU–Turkey Refugee Deal. Commentary, March 2016, Migration Policy Institute, accessed 8 January 2018, at www.migrationpolicy.org/news/paradox-­euturkey-­refugee-deal. De Cillia, Rudolf, Martin Reisigl and Ruth Wodak. 1999. ‘The Discursive Construction of National Identities’. Discourse & Society 10(2): 149–173. Dumas, Perrine and Iris Goldner Lang. 2015. ‘EU Mobility Regimes and Visa Policy towards ENP Countries’. EUI Working Paper RSCAS 2015/79, accessed 10 April 2018, at http://cadmus.eui.eu/bit stream/handle/1814/37538/RSCAS_2015_79.pdf?sequence=1. Elrick, Jennifer and Elke Winter. 2017. ‘Managing the National Status Group: Immigration Policy in Germany’. International Migration, online first, DOI 10.1111/imig.12400. Favell, Adrian and Randall Hansen. 2002. ‘Markets against Politics: Migration, EU Enlargement and the Idea of Europe’. Journal of Ethnic and Migration Studies 28(4): 581–601. Fetzer, Joel S. 2000. Public Attitudes toward Immigration in the United States, France, and Germany. Cambridge University Press. FranceInfo 2012. ‘L’immigration choisie de Sarkozy est restée une promesse’. Retrieved 17 November 2017 from www.francetvinfo.fr/france/l-­immigration-choisie-­de-sarkozy-­est-restee-­une-promesse_69821.html. Freeman, Gary P. 1995. ‘Modes of Immigration Politics in Liberal Democratic States’. International Migration Review 29(4): 881–902.

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Agnieszka Weinar et al. Geddes, Andrew. 2005. ‘Europe’s Border Relationships and International Migration Relations’. JCMS: Journal of Common Market Studies 43(4): 787–806. Goldner Lang, Iris. 2011. From Association to Accession: How Free Is the Free Movement of Persons. Eleven International Publishing. Guiraudon, Virginie and Christian Joppke. 2001. Controlling a New Migration World. Vol. 4. Psychology Press. Hollifield, James Frank. 1992. Immigrants, Markets, and States: The Political Economy of Postwar Europe. Harvard University Press. Homeland Security. 2016. ‘Statistical Yearbook 2015’. Retrieved 17 November 2017 from www.dhs.gov/ immigration-statistics/yearbook/2015#*. Huysmans, Jef. 2000. ‘The European Union and the Securitization of Migration’. JCMS: Journal of Common Market Studies 38(5): 751–777. IOM. 2017. ‘IOM Learns of “Slave Market” Conditions Endangering Migrants in North Africa’. Press Release, 4 November 2017. Retrieved 8 January 2018 from www.iom.int/news/iom-learns-slavemarket-conditions-endangering-migrants-north-africa. Isin, Engin F. and Michael Saward, eds. 2013. Enacting European Citizenship. Cambridge University Press. Joppke, Christian. 1999. Immigration and the Nation-­State: The United States, Germany, and Great Britain. Oxford University Press. Kofman, Eleonore. 2018. ‘Family Migration as a Class Matter’. International Migration, online first: https:// doi.org/10.1111/imig.12433. Lavenex, Sandra. 2001a. The Europeanisation of Refugee Policies: Between Human Rights and Internal Security. Aldershot and Burlington, VA: Ashgate. Lavenex, Sandra. 2001b. ‘The Europeanization of Refugee Policies: Normative Challenges and Institutional Legacies’. JCMS: Journal of Common Market Studies 39(5): 851–874. Maas, Willem. 2007. Creating European Citizens. Rowman & Littlefield. Mau, Steffen, Heike Brabandt, Lena Laube and Christof Roos. 2012. Liberal States and the Freedom of Movement: Selective Borders, Unequal Mobility. Palgrave Macmillan. Mudde, Cas. 2007. ‘The Single-issue Party Thesis: Extreme Right Parties and the Immigration Issue’. West European Politics, 22(3): 182–197. Paul, Regine. 2015. The Political Economy of Border Drawing: Arranging Legality in European Labor Migration Policies. Berghahn. Ramakrishnan, S. Karthick and Thomas J. Espenshade. 2001. ‘Immigrant Incorporation and Political Participation in the United States’. International Migration Review 35(3): 870–909. Rankin, Jennifer. 2017. ‘Migration: EU Rejects Proposals for Turkey-­style Deal for Libya’. Guardian, 25 January. Retrieved 8 January 2018 from www.theguardian.com/world/2017/jan/25/migration-eurejects-proposals-for-turkey-style-deal-for-libya. Recchi, Ettore and Adrian Favell. 2009. Pioneers of European Integration: Citizenship and Mobility in the EU. Edward Elgar. Soysal, Yasemin N. 1994. Limits of Citizenship: Migrants and Postnational Membership in Europe. The University of Chicago Press. Statham, Paul and Andrew Geddes. 2006. ‘Elites and the “Organised Public”: Who Drives British Immigration Politics and in Which Direction?’ West European Politics 29(2): 248–269. Staver, Anne. 2015. ‘Hard Work for Love. The Economic Drift in Norwegian Family Immigration and Integration Policies’. Journal of Family Issues 36(11): 1453–1471. Tichenor, Daniel J. 2009. Dividing Lines: The Politics of Immigration Control in America: The Politics of Immigration Control in America. Princeton University Press. Toaldo, Mattia. 2017. ‘Commentary. The EU Deal with Libya on Migration: A Question of Fairness and Effectiveness’. European Council on Foreign Relations. Retrieved 8 January 2018 from www.ecfr.eu/ article/commentary_the_eu_deal_with_libya_on_migration_a_question_of_fairness_a. Triandafyllidou, Anna. 2003. Immigrants and National Identity in Europe. Routledge. Triandafyllidou, Anna and Laura Bartolini. 2017. Irregular Migrants and Rejected Asylum Seekers: Conceptual and Policy Challenges for Europe. Global Exchange on Migration and Diversity, Autumn Academy 2017: Strategic Approaches to Migrants with Irregular Status in Europe. van der Brug, W., Fennema, M. and Tillie, J. 2000. ‘Anti-immigrant Parties in Europe: Ideological or Protest Vote?’ European Journal of Political Research, 37(1): 77–102. van Spanje, Joost. 2010. ‘Contagious Parties: Anti-­Immigration Parties and Their Impact on Other Parties’. Immigration Stances in Contemporary Western Europe, Party Politics, 16(5): 563–586.

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Introduction Weinar, Agnieszka. 2014. ‘A Look at Migrations in the Post-­Soviet Space – the Case of Eastern Europe, South Caucasus and Russian Federation’. International Migration 52(5): 47–51. https://doi.org/10.1111/ imig.12168. Zolberg, Aristide R. 1978. ‘International Migration Policies in a Changing World System’. In: Human Migration: Patterns and Policies, edited by William H. McNeill and Ruth S. Adams. Bloomington, IN: Indiana University Press, 241–286.  Zolberg, Aristide R. 2009. A Nation by Design: Immigration Policy in the Fashioning of America. Harvard University Press.

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Part I

Governance

1 Migration Governance in Europe A historical perspective Adam Luedtke

Europe will be forged in crises, and will be the sum of the solutions adopted for those crises. Jean Monnet

Introduction Past waves of European unification, like the slow unification of the Amer­ican colonies (Egan 2015), occurred during moments of grave crisis. Just as Washington’s power grew most during the US Civil War and the Great Depression, the biggest gains in the power of the European Union (EU) came amid the oil shocks of the 1970s and the turbulent end of the Cold War. The dramatic refugee flows of the 1990s were perhaps the biggest upheaval in this latter period. Ethnic cleansing in places like former Yugoslavia sparked a crisis over the westward migration of refugees, which helped to launch the EU’s first cooperation on migration. From the early 1990s to today, migration crises have contained imperatives that gradually led EU member states to accept the need for a common EU response to foreigners arriving from outside the EU, particularly given the liberalisation of internal free movement. This chapter focuses on the evolution of EU-­level policy towards immigration from outside the EU, as well as on the tensions it has exposed among member states and EU institutions. However, we cannot ignore the issue of intra-­EU (Schengen) migration by EU citizens, since this situation facilitated the push for common external border controls and policies on admitting non-­EU citizens. This chapter will show how reluctant governments gradually decided to participate in migration policy cooperation in the form of security-­focused initiatives offered by Brussels, which allowed for more effective responses to crises at the EU’s external frontiers. While the 1990s asylum crisis spawned innumerable predictions of EU doom and gloom, it actually led to the creation of a legal framework for common EU tools, which have arguably helped countries keep out large numbers of migrants. Although human rights advocates criticise the security orientation of EU migration policy, it is counterfactually true that by pooling sovereignty, Europe has averted far greater migrant inflows (and greater political backlashes) that would have otherwise faced individual nations. 15

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Migration policy has been a tool of crisis management by the EU member states since the end of the Cold War. EU cooperation on immigration policy has advanced greatly since the 1990s, from the weak intergovernmental structures contained in the Maastricht Treaty (1993), to the binding, supranational system of immigration law finally implemented by the Lisbon Treaty (2009). From the initial intergovernmental steps towards harmonisation to the subsequent deepening of the EU’s institutional capacity to deal with immigration more collectively, EU cooperation on migration is a response to external pressures on Europe, such as refugees fleeing war, as well as to internal imperatives such as the single market, which mandates free movement inside the EU (requiring common entry rules). Again, this chapter focuses on immigration from outside the EU, and traces historically the evolution of common EU policy towards this type of immigration. Because the analysis is at the supranational level, and looks at the historical evolution of EU immigration policy harmonisation in Brussels, readers must look to other sources for more detail about individual member state preferences (Luedtke 2009), the effect of EU enlargement (Lavenex 2006) and the evolution of free movement law for EU nationals (Guiraudon 2000). This chapter traces the move away from ‘intergovernmentalism’ (EU member states making policy outside the legal framework of Brussels) towards ‘supra­ nationalism’, which is defined as placing immigration law in Brussels under the sole agenda-­ setting powers of the Commission, majority voting in the Council, legislative co-­decision by the European Parliament (EP) and judicial review by the European Court of Justice (ECJ). Compared to other areas of EU policy (e.g. agriculture), common policies on the immigration of non-­EU nationals took longer to develop, offered more variability of participation (some national opt-­outs) and allowed more national discretion in implementation. Nevertheless, by 2010, full supranational policies were developed on asylum, border policy and several types of legal immigrants: family members, students and researchers, skilled migrants, seasonal migrants and long-­term permanent residents. This (slow) progress has proven the conventional wisdom wrong. As European governments began to identify mutual interests in areas related to immigration – especially areas of national security, such as border controls and illegal immigration – intergovernmental fora were developed to share data and strategy among the relevant branches of national governments. Accordingly, the evolution of supranational harmonisation cannot be understood without analysing intergovernmental initiatives pre-­Maastricht. Analysis of this phase will show that even as member states placed immigration policy off limits to Brussels, they created conditions that would make a stronger role for Brussels too appealing to resist.

End of the Cold War and first refugee crisis (1986–1996) With European integration moving forward in other areas, the member states began to experiment with ad hoc, intergovernmental cooperation on policies towards migrants from outside the EU, spurred on by the end of the Cold War and the arrival of large numbers of asylum-­ seekers. It was not until the turbulent economic slowdowns of the mid-­1970s that worried politicians began to gain political mileage by earnestly denying the reality of permanent settlement, in line with the new politics of xenophobic exclusionism that went hand-­in-hand with economic recession and unemployment. During this period, European political elites began to pander to xenophobic politics – in response to their own declining legitimacy and electoral support – by proclaiming their nations to be ‘zero-­immigration’ vis-­a-vis non-­EU nationals. However, by pursuing this strategy of denial, governments left themselves unable to formulate coherent strategies to deal with the existence of settled and legally resident immigrant populations, as well as 16

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the consequences of future immigration flows (Layton-­Henry 1990; Cornelius, Martin and Hollifield 1994). It was only the EU that would provide a response (albeit partial) by 2009. The first essential factor paving the way for convergence among the older member states (which by the 1970s had become permanent homes for settled labour immigrants) was the range of common humanitarian obligations faced by all labour-­importing countries of northwest Europe, which blocked exclusionary attempts to limit both permanent settlement and the entry of new migrants. Aside from the basic acceptance of guest-­worker settlement, which (along with employer demand) allowed temporary labour populations to gain legal residence and avoid forced repatriation, two important humanitarian forces have fundamentally shaped EU immigration policy. These are: relatively robust adherence to international law on family reunification, which allowed colonial and guest-­worker immigrants to bring family members (Joppke 1998); and adherence to the right of political asylum (Freeman 1995) in the face of international conflicts in the EU’s neighbourhood. The most important facet of immigration cooperation in the 1980s came out of a liberalising move on the economic side: the single market and its requirement of free movement, which created an irreversible linkage between immigration and the drive for a unified Europe. In 1986, the Single European Act legally codified and institutionalised Brussels’ policy authority over EU member states to new levels. The Act succeeded in removing mobile EU workers from the limits of national immigration regimes and placing them firmly under the EU legal framework as elements of the single market. That move gave birth to perennial confusion as to who the ‘migrant’ in Europe is. It also pushed for a harmonised policy towards intra-­EU movers, which does not fall under national state prerogatives. With internal movement increasingly liberalised in EU law, member states had increased incentives to cooperate on the external admission of non-­EU nationals; for example, a migrant entering Italy would now face less control and restrictions in moving to the Netherlands. In this way, internal free movement policy, although it deals with EU citizens, has always had an indirect linkage with driving the harmonisation of policies towards non-­EU immigrants. Given the new spirit of internal liberalisation and accompanying institutional activity, harmonising restrictions on non-­EU immigrants was prioritised quickly. It stemmed from the security panic over asylum-­seekers in the 1990s, as dire predictions of ex-­communist refugee swarms grabbed headlines across the continent (Rogers 1992; Soysal 1994; Den Boer 1995; Santel 1995; Weiner 1995; Mitchell and Russell 1996). This amplified response created a paradox for immigration policymaking, since the new security threats made cooperation more difficult, and yet more necessary. Although member states were obsessed with national sovereignty and border controls, it was also clear that the immediate goal of harmonising border controls at the EU level was crucial to the political stability of post-­Cold War Europe, and hence crucial to protecting national sovereignty itself. The national interests of the (then 12) EU member states coincided quite readily on security issues, which allowed an increasingly systematic discussion of harmonisation. The intergovernmental frameworks of the time emphasised keeping national sovereignty as intact as possible through protection of borders. One example is the substantial progress made by Trevi Group in the late 1980s in cooperating on cross-­national information sharing and law enforcement. Mitchell and Russell (1996) framed the paradox as follows: ‘partial loss of legal sovereignty is the price that must be paid for maintaining a measure of state autonomy in the face of mounting migration’ (p. 58). Consequently, the EU’s first intergovernmental organisation devoted specifically to immigration, the Ad hoc Immigration Group (AHIG), was established in 1986. The AHIG’s mandate represented the ongoing obsession with security issues (Waever 1993; Huysmans 2000) and 17

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reflected the priority of the time: strengthening EU external borders to keep pace with the reduction of internal borders among the 12 members. The AHIG mandate covered: (1) visa policy, including a common list of countries whose nationals would require visas to enter the EU; (2) improving external border controls and evaluating implementation of internal controls; (3) aiding implementation of free movement in a security-­conscious way; and (4) the harmonisation of political asylum policies, focusing on eliminating false or duplicate asylum claims (aka ‘asylum-­shopping’). Although this emphasis on control led to criticisms of ‘Fortress Europe’, a new era of cooperation was unfolding institutionally. The Commission was given a place at the table but its role was left ambiguous, merely to ‘broker’ between member states (Ugur 1995). And with such weak institutional grounding, the eventual establishment of full EU competence over the AHIG did not seem likely. Yet some were optimistic. Philip (1994) saw the creation of the AHIG as launching the harmonisation of EU migration policy and necessarily giving the central institutions (Commission, EP and ECJ) a role in this process, however limited. ‘While outwardly denying in the 1980s that there was any need for an EC-­wide immigration policy, governments … laying the foundations for just such a policy … continued to inch their way towards an ever-­closer union of their immigration policies’ (p. 174). History would vindicate this view in 2009 when the Lisbon Treaty instituted full EU competence over migration policy, with sole right of initiative for the Commission, majority voting in the Council, co-­decision (veto) power for the EP and full ECJ jurisdiction. The first concrete step towards harmonising immigration policy was the Dublin Convention on political asylum, which came out of the AHIG in 1990, and was signed by all 12 member states. The Dublin rules, which formed the foundation for today’s common EU asylum system, codified common provisions for eliminating asylum ‘abuse’ by determining which state was responsible for examining an application. By demanding that refugee claims be heard in the first signatory (‘safe’) country of arrival or transit, this enticed even reluctant members such as the UK into eventually joining most of the EU’s common asylum system, based on the Dublin Convention’s ‘safe third country’ rule and a biometric database to eliminate fraud and ‘asylum­shopping’. Member state unwillingness to commit to increased harmonisation, given the practical shortcomings of the current ad hoc groupings, was put to the political test leading up to the 1992 Maastricht Treaty. The pre-­Maastricht Intergovernmental Conference (IGC), charged with hearing proposed revisions to the Rome Treaty, provided a new forum in which supranationalists could air concerns over perceived shortcomings in the nature and extent of harmonisation thus far. The only political solution, in the eyes of the supranationalists, was the establishment of full EU competence over immigration. Accordingly, the Benelux countries, with Commission support, proposed amendments to the Rome Treaty that would bring all various intergovernmental groupings into the EU’s institutional framework. This proposal was fiercely opposed by the UK, Denmark and Ireland, who expressed clear preference for the status quo. This intergovernmentalist opposition was incorporated into a compromise treaty by the Luxembourg Presidency at the 1991 IGC, which assuaged Eurosceptic worries by creating a split institutional framework under which immigration and law enforcement were put in a separate intergovernmental ‘pillar’ of EU law, instead of in the ‘first pillar’ of ‘normal’ EU law and institutions. Although this ‘pillar’ grouping for immigration seemed more coherent, it was still intergovernmental (and therefore not subject to Commission, EP or ECJ control). Importantly though, intra-­EU mobility fell under the first pillar, together with the internal market, burying the hopes of some Eurosceptics that this category of migrants could be controlled nationally. In 1992, intra-­EU movers were not perceived as a significant threat. The Maastricht Treaty sealed 18

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the two-­tier approach to non-­nationals in the EU and to a large extent removed the question of EU citizens from this debate. The Commission continued to work on its own proposals for full competence over non-­EU immigration, despite apparent member state unwillingness to give up on intergovernmentalism. Part of this new attempt at cooperation was the Commission’s decision to limit calls for harmonisation to the areas of control and restrictions, a familiar strategy for appeasing member state objections. In its communications, the Commission urged the ratification of the Dublin Convention, along with other measures of asylum policy harmonisation, in order to meet the widely shared goals of streamlining asylum claims and eliminating asylum abuse. It was primarily because of this renewed push by the Commission towards further harmonisation (albeit of a fundamentally restrictionist variety), that a process of further momentum was launched. The most important step in this process was the AHIG’s submission of an ‘Action Plan’ to the 1991 European Summit in Maastricht. This Action Plan took into account the Commission’s wishes by stressing the need for harmonisation across all areas of immigration policy. However, the concrete institutional impact of the Maastricht Treaty was minimal, given its limited reorganisation of immigration-­related policy frameworks. The ‘Luxembourg compromise’ proposal finally accepted for incorporation into the Union structure featured two separate pillars for intergovernmental cooperation: one for foreign and security policy (the ‘second pillar’), and another for justice and home affairs, including immigration (the ‘third pillar’). What should be made of these formal and apparently substantive moves towards a limited degree of EU competence over immigration policy? At the time, optimism was rampant, in part because a new IGC would be convened in 1996, to continue working on the harmonisation objectives laid out in the treaty. This IGC completed its work with the 1997 Amsterdam Treaty, a significant step towards harmonisation, albeit more than four years after the Maastricht process was set in motion.

Securitised harmonisation, opt-­outs and first steps to supranationalism (1997–2003) As Brussels successfully managed crises around enlargement, cooperation on immigration policy, internal free movement and increased restriction of migration flows, all but a few member states decided to take a step towards supranationalism, trusting Brussels with the authority to begin making binding EU law on immigration from outside the EU in the 1997 Amsterdam Treaty. In the absence of a supranational push for migrant integration, human rights or liberalisation, the post-­1992 migration agenda continued to focus upon the perceived crises around security, restrictions and the fight against illegal immigration. The fact that little harmonisation was accomplished even in these areas, however, meant that in the four years between 1993 and 1997, the pillar structure of Maastricht proved unworkable. Despite the Commission’s continuing efforts to promote increased coordination and harmonisation of immigration control issues, the list of failures under the pillar structure is impressive. The most important shortcomings were: (1) the failure to ratify the External Frontiers Convention (EFC), which was held up mainly by a dispute between Spain and the UK over Gibraltar; (2) humanitarian-­minded member states blocking the ratification of the Dublin Convention – wherein asylum-­seekers are processed and settled in the first ‘safe’ country of transit – over criticism from the non-­ governmental organisation (NGO) sector that Dublin would mean endorsing the asylum standards of member states with weaker domestic protections and/or weaker adherence to international norms; and (3) visa policy, wherein member states could not reach agreement upon either a common ‘visa list’ of third countries or the format for a universal EU visa. The Commission, 19

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exercising its competence over visa policy, prepared a list of 126 countries in need of a common visa. However, the inclusion of several Commonwealth countries predictably did not meet with the UK’s approval, since this meant that citizens of former colonies could no longer receive preferential treatment from UK immigration law. Thus, once again, a final agreement was blocked by the objections of one member state. And the proposed format of the common visa suffered a similar fate when ‘ “Eurosceptics” in the British Parliament persuaded Prime Minister Major … to delay agreement. Tory “rebels” likened the mutual recognition of visas to relaxing internal border controls – another move … toward the “slippery slope” of … federal Europe’ (Papademetriou 1996, p. 94). Because of the high expectations created by the Maastricht process, the subsequent failure to achieve even a minimal degree of substantive harmonisation meant renewed hope for supranationalism. All advocates of closer cooperation and harmonisation, whether arguing from pro-­ immigrant or restrictionist positions, came to realise that the complex institutional arrangements created by Maastricht were inadequate to the task of coherent policy harmonisation. These critiques of the pillar structure finally hit their mark at the Amsterdam Summit in 1997, when supranationalists spoke out. Although the UK (wishing to preserve the national veto in the pillar system) adamantly opposed the extension of majority voting in the Council to areas of immigration policy, this extension was a necessary requirement for further progress, especially in light of the imminent EU enlargement. Thus, the EP proposed: (1) a call for majority voting in the Council; (2) the establishment of full parliamentary review (co-­decision, including veto power) for the EP, which had only been given weak powers of ‘consultation’ under Maastricht; and (3) the establishment of judicial review for the ECJ, which had not been granted jurisdiction over immigration-­related cases under the pillar structure. At the time, these changes were seen as bringing new legitimacy into the policymaking process: the elected officials of the EP would be directly accountable to Europe’s citizens for debates and voting on immigration, while Europe’s NGOs would be able to lobby the EP to ensure that their perspectives were taken into account. The granting of judicial review to the ECJ was seen as providing legitimacy to the EU’s policy framework by providing a neutral arbitrator to resolve disputes among member states and third parties, and a legal forum where grievances could be heard, including asylum applicants making human rights claims. This would rectify the humanitarian situation as it stood under the pillar structure, where there was no legal recourse for these cases. However, one problem for the supporters of EU competence in advancing these normative critiques against defenders of intergovernmentalism was the legitimacy-­based arguments that human rights advocates have often made against Brussels. For them, national systems are often seen as friendlier and more responsive than EU-­level legal remedies. Eurocrats are seen by many NGOs as elitist, operating in legal grey areas and serving the interests of national law enforcement officials. These arguments, along with Eurosceptic sovereignty-­based objections, consolidated support for continuing the pillar structure. Accusations of aloofness, elitism and lack of accountability coming from both humanitarian and nationalist quarters did much to blunt arguments for full EU competence on immigration policy, delaying its arrival to 2009’s Lisbon Treaty. In June 1997, the Intergovernmental Conference was held in Amsterdam, wherein representatives of the member states and EU institutions made new harmonisation proposals to pave the way for enlargement and a ‘Maastricht II’ Treaty. During this conference, the Council reached full agreement on a new draft treaty, to be signed in October 1997, under which the EU’s supranationalists gained a key victory: it was agreed that immigration issues would eventually be transferred from the third to the first pillar. With this step, over UK objections, supranationalist member states secured a commitment to eventual EU competence over immigration, including: (1) the right of sole initiative for the Commission to propose new laws; (2) majority 20

Migration governance in Europe

voting in the Council: (3) the right of parliamentary oversight (co-­decision) for the EP; and (4) ECJ jurisdiction over immigration cases. Furthermore, after a protracted struggle over asylum harmonisation and adequate guarantees for human rights protections at the European level, the Dublin Convention on asylum was finally ratified. This meant the EU could finally implement common standards and procedures on political asylum hearings and granting asylum status. The transfer of immigration and asylum issues to the first pillar under the new treaty promised that individual human rights would eventually be bolstered through an ECJ review of cases. It was this particular guarantee that allowed more human rights-­oriented member states, such as the Netherlands, to finally withdraw their concerns. Concurrently, after seven years of failure to resolve disputes over the EFC policy on common external borders, it was decided to incorporate the (then) institutionally separate Schengen free movement zone into the EU itself. This decision was cleared by granting opt-­outs to Ireland, Denmark and the UK, consistent sceptics, who had previously blocked attempts to implement a Schengen-­like situation in the EU. At the time, many debated the wisdom of this ‘two-­speed’ or ‘variable’ Europe, which had not yet been tried in other policy areas such as currency (Neunreither and Wiener 2000). Since Schengen dealt with internal free movement of EU nationals, opt-­outs granted to the UK, Denmark and Ireland allowed them to selectively participate in laws on immigrants from outside the EU. To summarise, three factors contributed to a great leap forward for supranationalism at the turn of the millennium. First, the Amsterdam Treaty incorporated the Schengen agreement (on free travel) into the EU’s institutional structure. Thus, external borders became common borders, obviously lending new salience to immigration cooperation. Second, the modest cooperation already achieved on asylum (e.g. agreements over common standards on political asylum, to prevent asylum-­shopping), was seen by national governments as a success, in that it allowed them to crack down on immigration at the EU level, where they were relatively free of pressure from pro-­immigrant NGOs and courts (Guiraudon 2000; Lahav and Guiraudon 2000; Givens and Luedtke 2004). The ongoing crises of illegal immigration and the rising numbers of political asylum-­seekers gave these issues even more pressing salience. And finally, most member states and EU officials agreed that the ‘pillar’ structure was relatively inefficient, given the plethora of intergovernmental groups that lacked the power to forge binding commitments (Geddes 2000). Again, it was these factors that pushed all but the most reluctant member states (the UK, Ireland and Denmark) to rethink their opposition to EU control. Thus, the Amsterdam Treaty achieved a partial supranationalisation of immigration policy authority (Moravcsik and Nicolaïdis 1999). It was agreed that five years from the Treaty’s implementation in 1999, the Commission would gain sole right of initiative, the EP would gain power of co-­decision, the unanimity requirement (national veto) in the Council would disappear, and decisions would be taken by majority vote. It was also agreed to give the ECJ jurisdiction over immigration, though with a special exception: only high courts could refer cases to the ECJ. Since the most sceptical member states (the UK, Denmark, Ireland) were not participants in the Schengen agreement, they were allowed to opt out of this new decision-­making structure, which permitted them to drop their objections (Geddes 2000).

Moving towards full supranationalism with crisis on the horizon (2004–2010) Despite crises around economic and financial turmoil, the failure of the Constitutional Treaty, worries over ‘enlargement fatigue’, and a rising populist right, the 2009 Lisbon Treaty made 21

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immigration policy a fully supranationalised realm of law, with full jurisdiction for EU institutions. As the five-­year transition period neared its end in 2004, it was overshadowed by the now-­ forgotten ‘Convention on the Future of Europe’ and the resulting draft ‘constitution’. Secure in the knowledge that EU control had allowed them to be ‘tough’ on immigration by passing restrictive measures (most notably various steps to reduce the number of asylum-­seekers, which even the UK embraced), member states surprisingly agreed in the ‘constitution’ to further expand EU control beyond the bounds of the Amsterdam Treaty. Not only would the Commission get sole right of initiative, the EP would get co-­decision, and member states would lose the national veto in the Council (as agreed at Amsterdam, after five years). The ECJ was also given full jurisdiction over immigration (any national court could request an ECJ ruling). The only full (opting-­in) participant to openly express strong scepticism was Germany, which succeeded in inserting a compromise clause that member states retain control over quantitative levels of national immigrant admissions. This clause tempered the worries of countries that were opposed to EU control. The draft constitution infamously failed to pass, however, just as the five-­year transition was ending (Lavenex 2006). Member state governments thus agreed in 2004 on the ‘Hague Programme’, a blueprint for future harmonisation, which laid the groundwork for immigration provisions to be included in the next round of Treaty revision. The Hague Programme was seen by many as a setback for supranationalism, in that it prevented the ECJ from having full jurisdiction over immigration (again, only national high courts could refer cases), and, more importantly, moved all areas of immigration policymaking to co-­decision and majority voting except for one key area: legal migration. In other words, other areas of immigration policy (most notably asylum and illegal immigration) would have become normal EU policy areas (supranationalised), but control over legal migration would have remained intergovernmental (unanimity voting in the Council, no EP co-­decision). However, seemingly against all odds, the 2009 Lisbon Treaty – the last major reform of EU institutions – achieved a supranational immigration policy, with unqualified EU competence for immigration, including the ability of any national court to request an ECJ preliminary ruling on an immigration case. The UK secured opt-­outs, as usual, but this did not prevent it from selectively opting in to many of the immigration and asylum control institutions as they were subsequently expanded, strengthened and given firmer legal standing; these policies allow the UK to ‘offshore’ and ‘outsource’ border controls to the EU, ensuring more difficulty for would-­be asylum-­seekers to reach London (Gibney 2004). However, in subsequent years the implementation of the Lisbon Treaty would coincide with grave challenges to the vision of a supranational EU immigration policy.

The Arab Spring and its aftermath: the ultimate test? (2011–2017) For a time, it seemed that the supranational vision of Monnet and Schuman had won the day – Europe showed slow, tectonic progress, federalising a controversial policy during a time of multiple crises: economic downturn, terrorism, and tensions among a growing EU. Despite increasing Euroscepticism and xenophobia, control incentives offered by EU membership made Brussels a useful border guard. However, controversies over the Arab Spring, the Brexit vote, the reintroduction of internal border controls on the continent, the rise of the far right, Eurozone debt and violations of EU norms by countries like Hungary threatened the future viability of a harmonised EU immigration policy. By 2015, due to the Arab Spring and the ensuing violence in Syria and elsewhere, the number of asylum applications to EU countries had grown to crisis proportions. Starting in 22

Migration governance in Europe

2012, the number of asylum applications steadily increased, ‘with 431 thousand applications in 2013, 627 thousand in 2014 and around 1.3 million in both 2015 and 2016 … approximately double the number recorded within the EU-­15 during the previous relative peak of 1992’ (Eurostat 2017). In the face of this crisis, the EU was beset with arguments over burden-­sharing (with newer and geographically more exposed members demanding help from wealthier, older member states such as Germany in the north) and the imposition of temporary internal border controls in 2015 by countries such as Germany, Austria, Denmark and Sweden (which are only allowed for six months under Schengen rules). Meanwhile, the world witnessed horrific images of asylum-­seeker deaths at sea and on the EU’s southern shores, and hostility towards refugees along its eastern borders. In response to these pressures, we have seen a tug-­of-war between EU responses based on human rights and rule of law, on the one hand, and EU and national responses based on restrictiveness and increased control over both European and national borders, on the other. Under this pressure, the European Asylum System and the norms of solidarity on burden-­sharing and internal free movement seemed to arrive at a breaking point (Hansen and Randeria 2016; Kallius et al. 2016; Klaus 2015; Hatton 2017). For instance, the European Commission, alleging non-­compliance with EU rules over the treatment of asylum-­seekers, initiated infringement procedures against Poland, Hungary and the Czech Republic. Also, in 2017 Italy announced it would no longer serve as the primary point of entry for rescued migrants if other member states did not show more solidarity for the massive increases in numbers of arrivals at Italian ports (Bamberg et al. 2017). As Italy sought to relieve pressure by any means necessary, this saw the end of the longstanding intergovernmental arrangements regulating smuggling corridors in Libya and elsewhere (Paoletti 2011). Finally, the EU’s 2016 deal with Turkey – offering financial support as an inducement for refugees to stay in Turkey – has kept numbers down, alleviating some of this problem. However, questions remain about burden-­sharing and human rights standards (Collett 2016; Kirişci 2016; Rygiel et al. 2016; Baban et al. 2017). In combination with Brexit, these developments cast doubt on the viability of the EU’s migration and asylum policy, particularly given the tensions over increased fears of terrorism and the resulting increase in far­right voting (Lucassen and Lubbers 2012; Camus and Lebourg 2017), as well as the increasing securitisation of migration policy (Lazaridis 2016; d’Appolonia 2017). Harmonisation has allowed governments to more effectively respond to voter sentiment by coordinating exclusive measures of immigration control, such as offshoring to third countries, biometric databases, border patrols and rules on asylum reception to eliminate ‘asylum-­shopping’. Such exclusive EU measures have helped wealthier states keep more foreigners away than would have otherwise been possible, but this raises questions of burden-­sharing with member states on the EU’s Southern and Eastern periphery, as well as with third countries lacking in human rights oversight. One of the main research questions of this volume is the issue of European exceptionalism. European migration policy harmonisation is indeed exceptional, as it represents the first time in history that a group of democracies has pooled sovereignty to regulate the flow of persons. This puts European nations in a sovereignty paradox of unclear political costs and benefits, ceding de jure national sovereignty to a supranational entity in order to fulfil voting publics’ de facto protectionist wishes, collectively regulating, policing and controlling the inflow of (often unwelcome) outsiders.

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References Baban, F., Ilcan, S. and Rygiel, K. 2017. ‘Syrian Refugees in Turkey: Pathways to Precarity, Differential Inclusion, and Negotiated Citizenship Rights’. Journal of Ethnic and Migration Studies 43(1): pp. 41–57. Bamberg, K., Funk, M., McNamara, F. and Pascouau, Y. 2017. Policy Update July 2017 (Brussels: European Programme for Integration and Migration). Camus, J. and Lebourg, N.  2017. Far-­Right Politics in Europe (Cambridge, MA: Harvard University Press). Collett, E. 2016. The Paradox of the EU–Turkey Refugee Deal (Washington DC: Migration Policy Institute). Cornelius, W.A., Martin, P.L. and Hollifield, J.F. 1994. ‘Introduction: the Ambivalent Quest for Immigration Control’ in Cornelius, W.A., Martin, P.L. and Hollifield, J.F. (eds), Controlling Immigration: A Global Perspective (Stanford: Stanford University Press), pp. 3–41. d’Appollonia, A.C. 2017. ‘Xenophobia, Racism and the Securitization of Immigration’ in Bourbeau, P. (ed.), Handbook on Migration and Security (Cheltenham: Elgar), pp. 252–72. Den Boer, M. 1995. ‘Moving Between Bogus and Bona Fide: The Policing of Inclusion and Exclusion in Europe’ in Miles, R. and Thranhardt, D. (eds) Migration and European Integration: The Dynamics of Inclusion and Exclusion (London: Pinter), pp. 92–111. Egan, M. 2015. Single Markets: Economic Integration in Europe and the United States (Oxford: University Press). Eurostat. 2017. Asylum Quarterly Report (Brussels: Eurostat). Freeman, G. 1995. ‘Modes of Immigration Politics in Liberal Democratic States’, International Migration Review 29(4): pp. 881–902. Geddes, A. 2000. Immigration and European Integration: Towards Fortress Europe? (Manchester: University Press). Gibney, M. 2004. The Ethics and Politics of Asylum: Liberal Democracy and the Response to Refugees (Cambridge: University Press). Givens, T. and Luedtke, A. 2004. ‘European Union Immigration Policy: Institutions, Salience and Harmonisation’, Policy Studies Journal 32(1): pp. 145–65. Guiraudon, V. 2000. ‘European Integration and Migration Policy: Vertical Policy-­Making as Venue Shopping’, Journal of Common Market Studies 38(2): pp. 251–71. Hansen, R. and Randeria, S. 2016. ‘Tensions of Refugee Politics in Europe’ Science 353(6303): pp. 994–5. Hatton, T. 2017. ‘Refugees and Asylum Seekers: The Crisis in Europe and the Future of Policy’, Economic Policy 32(91): pp. 447–96. Huysmans, J. 2000. ‘The European Union and the Securitisation of Migration’, Journal of Common Market Studies 38(5): pp. 751–77. Joppke, C. 1998. ‘Why Liberal States Accept Unwanted Immigration’, World Politics 50(2): pp. 266–93. Kallius, A., Monterescu, D. and Rajaram, P. 2016. ‘Immobilizing Mobility: Border Ethnography, Illiberal Democracy and the Politics of the “Refugee Crisis” in Hungary’ Amer­ican Ethnologist 43(1): pp. 25–37. Kirişci, K. 2016. ‘Turkey’s Role in the Syrian Refugee Crisis’, Georgetown Journal of International Affairs 17(2): pp. 80–5. Klaus, W. 2017. ‘Security First: The New Right-­Wing Government in Poland and its Policy Towards Immigrants and Refugees’, Surveillance & Society 15(3/4): pp. 523–8. Lahav, G. and Guiraudon, V. 2000. ‘A Reappraisal of the State Sovereignty Debate: The Case of Migration Control’, Comparative Political Studies 33(2): pp. 163–95. Lavenex, S. 2006. ‘Shifting Up and Out: The Foreign Policy of European Immigration Control’, West European Politics 29(2): pp. 329–50. Lavenex, S. and Wichmann, N. 2008. ‘The External Governance of EU Internal Security’, Journal of European Integration 31(1): pp. 83–102. Layton-­Henry, Z. 1990. ‘Race and Immigration’ in Unwin, D.W. and Patterson, W.E. (eds). Politics in Western Europe Today (London: Longman), pp. 162–81. Lazaridis, G.  2016. Security, Insecurity and Migration in Europe (Abingdon: Routledge). Lucassen, G. and Lubbers, M. 2012. ‘Who Fears What? Explaining Far-­Right-Wing Preference in Europe by Distinguishing Perceived Cultural and Economic Ethnic Threats’, Comparative Political Studies 45(5): pp. 547–74. Luedtke, A. 2009. ‘Uncovering European Union Immigration Legislation: Policy Dynamics and Outcomes’, International Migration 49(2): pp. 1–27.

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Migration governance in Europe Mitchell. M. and Russell, D. 1996. ‘Immigration, Citizenship and the Nation-­State in the New Europe’ in Jenkins. B. and Sofos, S.A. (eds), Nation and Identity in Contemporary Europe (New York: Routledge), pp. 54–80. Moravcsik, A. and Nicolaïdis, K. 1999. ‘Explaining the Treaty of Amsterdam: Interests, Influences and Institutions’, Journal of Common Market Studies 37(1): pp. 59–85. Neunreither, K. and Wiener, A. (eds) 2000. European Integration after Amsterdam: Institutional Dynamics and Prospects for Democracy (Oxford: Oxford University Press). Paoletti, E. 2011. The Migration of Power and North–South Inequalities: The Case of Italy and Libya (New York: Palgrave Macmillan). Papademetriou, D.G. 1996. Coming Together or Pulling Apart?: The European Union’s Struggle with Immigration and Asylum (Washington DC: Carnegie Endowment for International Peace). Philip, A.B. 1994. ‘European Union Immigration Policy: Phantom, Fantasy or Fact?’, West European Politics 17(2): pp. 168–91. Rogers, R. 1992. ‘The Future of Refugee Flows and Policies’, International Migration Review 26(4): pp. 1112–43. Rygiel, K., Baban, F. and Ilcan, S. 2016. ‘The Syrian Refugee Crisis: The EU–Turkey “Deal” and Temporary Protection’, Global Social Policy 16(3): pp. 315–20. Santel, B. 1995. ‘Loss of Control: The Build-­Up of a European Migration and Asylum Regime’ in Miles, R. and Thranhardt, D. (eds) Migration and European Integration: The Dynamics of Inclusion and Exclusion (London: Pinter), pp. 75–91. Soysal, Y.N. 1994. Limits of Citizenship: Migrants and Postnational Membership in Europe (Chicago: University of Chicago Press). Ugur, M. 1995. ‘Freedom of Movement vs. Exclusion: A Reinterpretation of the ‘Insider’-’Outsider’ Divide in the European Union’, International Migration Review 29(4): pp. 969–99. Waever, O. 1993. Identity, Migration and the New Security Agenda in Europe (New York: Palgrave). Weiner, M. 1995. The Global Migration Crisis: Challenge to States and Human Rights (New York: Harper Collins).

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2 Research on the Multi-­Level Governance of Migration and Migrant Integration Reversed pyramids Ilke Adam and Tiziana Caponio

Introduction Although international migration is per definition a transnational phenomenon, migration and migrant integration policies are mostly associated with national policies. The national models approach has been dominant throughout the 1990s in the study of both immigrant integration and immigration control policies. However, for decades already, several aspects of immigration and immigrant integration policies have increasingly been shifted upwards, to the international level (to the European Union (EU) and international organisations), downwards, to the sub-­state level (regional and local authorities) and outwards, to sending states, civil society and private actors. Since the early 2000s scholars have been more engaged in making sense of these processes of the redefinition of state competence and the diffusion of power. They have challenged the ‘national models’ heuristic and its underlying assumption of the existence of internally consistent and homogeneous national approaches to migration (e.g. Bertossi, 2011; Adam, 2013). In the general political science literature, the move away from the nation state as the ‘natural container’ of political processes, and therefore as the main focus of scientific investigation, had already started at least one decade before. Confronted with the increasing consolidation of supranational EU institutions as well as with processes of devolution of powers towards lower tiers of government and non-­public actors, political scientists coined the concept of multi-­level governance (MLG) (Hooghe and Marks, 2001; Bache and Flinders, 2004; Stubbs, 2005; Piattoni, 2012). While very critically debated in political science (see for instance Tortola, 2016), the MLG approach has indeed contributed to a refocusing of the research agenda away from state-­centred policy-­making in many policy fields, migration included (for a first review of MLG-­relevant studies in the migration field see Zincone and Caponio, 2006). As a theoretical perspective, this concept, with its specific emphasis on the intersection between intergovernmental vertical interactions and state-­society horizontal relations, has complemented studies on federalism, which developed well before the 1990s but whose focus lay mostly1 on the vertical 26

The multi-level governance of migration

dimension of MLG, i.e. intergovernmental relations (IGRs) between the federal and regional tiers of government (Agranoff, 2004; Bolleyer, 2006). To undertake a literature review of this emerging and burgeoning literature in migration policy studies is a challenging and complicated task, especially because only very few studies on migration policies have explicitly adopted the MLG conceptual tools. We argue, in this chapter, that existing MLG-­relevant research on migration policy on the one hand, and immigrant integration policy on the other hand looks like two reversed pyramids. While research on migration policy focuses mostly on the interaction in upper governmental tiers, namely between international organisations (IOs) (among which the EU) and the state, research on the MLG of migrant integration is mostly situated at lower tiers of government, namely between the state and the local authorities and/or regions. Beyond differences between the subfields of the MLG of migration and migrant integration, the chapter also sheds light on different research foci of North Amer­ican and European research. The present chapter unfolds as follows. In the first section we clarify the definition of MLG that we adopt for the sake of this literature review, and we shortly elaborate upon the conceptualisation of MLG in the very few studies on immigrant integration policy which explicitly use the concept. In the second section, we analyse the contributions of the scholarly work focusing on multi-­level interactions at the top tiers of authority. We sub-­divide this section into an overview of the studies addressing the interactions with (global) IOs and those focusing on interactions with the EU. In the second section, we review the scholarship that has addressed multi-­level interactions at the lower tiers of authority, between states and regions, and between states and local authorities.

Multi-­level governance: which definition(s)? Less than a handful of migration researchers have explicitly used and defined the concept of MLG. This is not specific to migration studies. More than a decade ago Hooghe and Marks (2003) inventoried the multiplicity of concepts used to describe processes of state authority redefinition and referred to ‘islands of theorising’ within local government studies, federalism studies, European studies and International Relations. The few studies on migrant integration that did use the concept of MLG explicitly made the parsimonious choice to not just refer to the dispersion of authority over multiple levels of governance but to indicate with this notion a particular outcome of this dispersion of authority, namely vertical policy coordination between governance levels (Scholten, 2013; Scholten and Penninx, 2015). In that vein, Caponio and Jones-­Correa (2017) also argue that beyond the mere existence of governance levels, a minimal degree of bargaining and negotiation among all of the involved institutions and actors should take place before one can speak of MLG. For the sake of this literature review, we adopt a broader definition of MLG as the process of dispersion of authority away from the nation state and across interdependent, and yet autonomous, public authorities and non-­public organisations placed at different levels of government (Hooghe and Marks, 2001: xi), therefore considering not only the vertical dimension of MLG, but also the horizontal dimension of interaction between public and non-­public actors (Hooghe and Marks, 2003). A crucial element of MLG in this perspective is that of interaction, in order to account for how decisions are taken and implemented in complex vertical and horizontal policy networks. Following this approach, and for the sake of narrowing down a wide research field, we only review those studies that focus on the dynamic aspect of the ‘shift of authority’, i.e. on the interaction between governance levels in the migration and immigrant integration policy field. 27

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As anticipated above, we graphically represent the relevant literature in the migration policy field as two reversed pyramids (see Figure 2.1). The reversed pyramids as well as the size of the different sections of the pyramids illustrate the different quantity of research on each level of interaction. Regarding migration policy, the larger quantity of research on MLG focuses on interactions among authorities at the top tiers of governmental hierarchies, and therefore we obtain a reversed triangle, with a heavy basis on the top. A small section of the basis, in the upper left corner, is occupied by research on governance interactions with (global) IOs, and a larger section on governance interaction with regional organisations (in this case, the EU). On migrant integration the figure shows exactly the opposite, since as mentioned above, research has focused on governance interaction taking place at lower tiers of government. The small section in the top of the integration policy pyramid epitomises the quasi-­absence of research on MLG interactions with the top tiers of authority. Both reversed triangles also illustrate the different amount of research on MLG engaging with regions:2 such research is quasi-­absent in the field of migration governance, but much more prevalent in the field of migrant integration governance. The studies of the MLG interactions between states and local authorities are more numerous on migrant integration, and particularly focus on Europe. The studies that investigate the role of local authorities in immigration enforcement situate mostly in the US (Varsanyi, 2010; Lewis et al., 2012; Wong, 2012; Filomeno, 2017), since migration law enforcement in this country rests upon the cooperation of state and local authorities. Therefore a number of studies have documented how states, counties and/or cities have either collaborated with the federal state or overtly opposed national legislation, turning it nil (Spiro, 2001; Freeman and Tendler, 2012; Newton, 2017). Regarding Europe, research has focused mainly on how regional or local authorities have implemented specific migration-­related provisions (see for instance: Ellerman, 2007 on deportations in Germany; van der Leun, 2006 on the treatment of undocumented migrants in the Netherlands), and far less on how they attempt to influence national-­level legislative process (for a partial exception see Spencer, 2017). In both subfields, relations between public and non-­public actors, i.e. non-­governmental organisations (NGOs), are studied primarily in relation to lower tiers of government, even though scholars pay increasing attention to the relations between IOs and civil society organisations mobilised globally on migration issues. Taking into account appeals to migrant-­sending countries to enhance the EU’s capacity for migration control, researchers on EU migration

IOs IOs

EU

State

EU Regions

Local

State

State

Regions

State

State

NGOs Local

Figure 2.1 Multi-level governance

28

State

The multi-level governance of migration

governance have also increasingly considered interactions that engage the authorities of migrants’ countries of origin (Bosswel, 2003, Lavanex, 2006). However, this emerging research stream generally takes an International Relations perspective, since most studies focus on horizontal relations between the EU and sovereign – sending – states rather than on MLG interactions, and therefore lies outside the scope of this literature review.

The study of multi-­level interactions at the top tiers of authority: mostly on immigration Research studying the interaction between spheres of authority at the upper governmental tiers mostly addresses migration governance, and hardly touches upon immigrant integration policies. Two specific research streams can be identified: one very meagre field of International Relations studies focused on the relations between global IOs (United Nations High Commissioner for Refugees (UNHCR), International Organisation for Migration (IOM), International Centre for Migration Policy Development (ICMPD), International Labour Organisation (ILO), World Trade Organisation (WTO) etc.) and the state, and an increasingly productive research area on the relations between the EU and its member states. A third emerging stream, still in its very infancy though, is that centred on the interaction between IOs and NGOs.

Interaction with global international organisations  Bibliographies on migration interactions among IOs, between IOs and the state or between global IOs and the EU are still extremely short (Betts, 2010, 2011a, 2011b; Lavenex, 2016). The existing scholarly accounts are mainly written by Europeans. Interestingly however, this small research field introduces migration scholars to different conceptual tools to study interaction between governance levels. While its authors hardly refer to the MLG concept, they borrow concepts that are common in International Relations like ‘international regime complexity’ (Alter and Meunier, 2009) and ‘inter-­organisational relations’ (Biermann and Koops, 2017) as well as its typologies like ‘formal versus informal’ relations and multilateral versus bilateral or regional (Betts, 2011b). Recently an original contribution distinguished between three types of institutional interplay between IOs and the EU: one of counterweight, wherein the IOs are able to act as agenda-­setters; one of subcontracting, wherein the IOs act as EU policy implementers, and a third one of rule transmission, wherein IOs transfer EU rules to third countries (Lavenex, 2016). These studies on the interactions between governance actors at the upper tiers of authority enrich migration studies with International Relations concepts, and thus contribute to foster new insights into MLG of migration. Theory-­building however, to answer the many why-­ questions relating to the interaction between IOs and regions/states, still lacks. Why are some interactions at the upper levels of authority organised multilaterally and others bilaterally? Why do certain global IOs set the agenda on migration in their relation with the EU while others merely implement EU policies? An emerging research topic is relations between IOs and global NGOs. Of a particular relevance in this respect are studies on the Global Forum on Migration and Development (GFMD). While still leaning towards the descriptive side, the studies of Rother (2012, 2013 and 2016) address explicitly the question whether the GFMD – which brings together representatives of the UN, other IOs such as IOM, United Nations member states, NGOs and to a lesser extent the private sector – can play a role in the global governance of migration beyond traditional state-­centric and top-­down decision-­making approaches. Its informal and non-­binding character, 29

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as well as the fact that the GFMD is placed outside the UN system and is still to a large extent state-­led, seem to undermine such a possibility. Nevertheless, Rother (2016) shows how it has contributed to socialising states to human rights and cooperation norms.

Interactions with the European Union In contrast to the scholarship on relations with global IOs presented above, studies on interaction with the EU have burgeoned since the 2000s. Most of the studies have focused on EU-­ state interactions, to analyse either bottom-­up relations with the EU, i.e. the communitarisation/ European integration of migration and migrant integration policies (e.g. Guiraudon, 2003; Geddes and Guiraudon, 2004; Roos, 2013), or Europeanisation, namely the ‘impact’ of EU policies on member states (e.g. Faist and Ette, 2007; Kaunert and Léonard, 2012; Block and Bonjour, 2013). The studies on the communitarisation and Europeanisation of migration policies are far more numerous than those focusing on migrant integration policies (Rosenow, 2009; Goeman, 2012). This difference can probably be attributed to the competencies of the EU on migration-­related matters. While the Amsterdam Treaty (1999) attributed legislative power to the EU on migration and asylum, the Lisbon Treaty (2009) still excludes the harmonisation of national legislation on immigrant integration (Art 79.4 TFEU) but allows EU institutions to encourage and support migrant integration actions undertaken by member states. Most analyses of EU states’ relations on migration use the classical lens and tools of European studies. They aim at explaining the policy outcomes of the interaction (namely EU policies and their impact on states’ policies) rather than focusing on the interaction as a dependent variable. This includes the few existing analyses adopting a multi-­level perspective in Eastern Europe, which examine in particular the relative impact of Europeanisation on the development of Polish immigration policies. While some authors show that the impact of European integration outweighs domestic factors (Vermeersch, 2005), a more recent study demonstrates that in particular sub-­policy areas like visa policy, the interaction between EU policies and national domestic factors have to be taken into account to understand policy change (Kicinger, 2009). Among the few authors who address specifically EU states’ interactions, no academic consensus has yet been reached on the impact of the shifting-­up of powers from the state to the EU level. Authors disagree on whether EU policies and institutions represent a liberal constraint or a venue for restriction. This disagreement, it has been argued, is due to the existence of conceptual and methodological fuzziness (Bonjour et al., 2017). A clear catalyst study on the interaction between the EU and its member states on migration is Guiraudon’s (2000) venue shopping hypothesis, which states that many EU migration and asylum measures were first discussed in intergovernmental working groups (such as the Trevi Group) by representatives of the national home affairs ministries seeking cooperation at a EU level in order to escape the legal and political constraints they faced in their own countries. Following in Guiraudon’s footsteps, many studies have confirmed (e.g. Lavenex, 2006) but also challenged the ‘escape to Europe’ thesis especially after the communitarisation of immigration policies since the Treaty of Amsterdam (1997) (for an overview see Bonjour et al., 2017; see also Geddes and Scholten, 2016). Several studies have also explored EU interactions with NGOs mobilised on migration issues. Guiraudon (2003) and Geddes and Guiraudon (2004) have shown that the emergence of a European immigrant integration policy sphere framed in terms of anti-­discrimination has been strongly influenced by anti-­discrimination groups like the Starting Line Group, dominated by Dutch-­British activists. Hoffman et al. (2013) also demonstrated the increasing role of Civil Society Organisations (CSOs) in the European asylum policy. 30

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Last but not least, recent studies have started to explore relations between the EU and transnational city networks (TCNs). According to Penninx (2015), because of their strong connections with the European Commission, TCNs can be considered ‘new coalitions in the MLG of migration and integration in Europe’ (106). However, whether and to what extent these networks actually promote cities’ interests and agendas at a EU level is still an open question. In comparing the role of two different Italian cities (Milan and Turin) in different TCNs, Caponio (2017) shows how rather than achieving the officially stated goals, those networks provide symbolic resources that can be spent to strengthen local policy networks and/or to lobby the national government.

The study of multi-­level interactions at the lower tiers of authority: mostly on migrant integration Regional authorities Regional studies of migration and (mostly) migrant integration governance became a productive research area from approximately 2010 onwards. These studies counter the long dominant idea of ‘national models’ of immigrant integration by demonstrating the existence of regional immigrant integration policy frames (Adam, 2013; Campomori and Caponio, 2013). Also here, the evolution of the scholarly field closely follows real-­world processes. Scholarly interest in sub-­state actor’s responses to migration increased after the devolution of relevant political authority during the 1990s. In contrast to the study of upwards-­shifting of policy responsibilities to the EU, we observe that studies of regional migration governance in Europe mainly focus on migrant integration and far less on migration policies (for a literature review see Adam, forthcoming). This also reflects developments in real-­world policy-­making processes. Regions and sub-­state nations in Europe have mainly been empowered on immigrant integration policy (Seidle and Joppke, 2012; Hepburn and Adam, forthcoming), and are, with some exceptions,3 generally deprived of policy-­making authority on immigration. This is different for Canada, which is the most decentralised immigration and reception regime of all liberal democracies (Banting, 2012). Several studies have addressed immigration federalism in Canada and the United States (e.g. Varsanyi et al., 2012; Paquet, 2016). Within this burgeoning literature, composed of primarily (comparative) case-­studies, one can roughly distinguish between studies describing the division of competencies (e.g. Tränhardt, 2013), those that describe (Seidle and Joppke, 2012) and try to interpret the variation in policy responses of regional authorities (see e.g. Adam, 2013; Arrighi de Casanova, 2014; Barker, 2015; Jeram, 2014) and research describing and explaining IGRs on immigrant integration in multi-­ level states (Hepburn and Adam, forthcoming). Similarly to research on interactions with the EU, most existing studies on the regional level focus on policy contents rather than on policy-­making interaction. Actually, in a similar vein to EU studies, territorial politics scholars have scrutinised whether the shift of authority away from the state has fostered more restrictive or more liberal policies. This is particularly the case for the study of migration-­related issues in one distinct type of regions, namely sub-­state nations (those regions claiming more autonomy or independence because of a perceived distinctive regional identity). The singular challenges and opportunities to which sub-­state nations are confronted when designing their responses to migration as liberal or restrictive, has been labelled ‘the legitimation paradox’ (Adam, 2013: 4; Jeram et al., 2015). Including immigrants into the sub-­state nation’s community could reduce the cultural homogeneity needed to legitimise the claims for regional distinctiveness by undoing the nation concept of its thick socio-­cultural elements 31

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(Gagnon and Iacovino, 2007). Yet, to exclude them could discredit the nation-­building process as it would be seen as an intolerant and illiberal project (Kymlicka, 2001). Empirical studies have demonstrated that regions and sub-­state nationalist responses are not necessarily exclusionary, but go in all directions, are diverse and complex, and vary across time and space. Next to the theorisation of the features of regional actor’s responses to immigration, more recently (Adam and Hepburn, forthcoming) scholars also explicitly address multi-­level interactions between the state and regions as a dependent variable. These have been labelled as ‘intergovernmental relations’ (IGR), a common research area in federal and regional studies (Agranoff, 2004; Bolleyer, 2006). Adam and Hepburn bring the labels categorising multi-­level interactions in the IGR literature to the migration scholarship. The features of these immigrant integration IGR are categorised as multilateral and bilateral, institutionalised or not, conflictual versus cooperative and weak or strong. These explicit categorisations of multi-­level interactions on immigrant integration will help further theorising. However, the still inductively generated definitions of these categorisations need to further develop into common conceptualisations and measurements. The authors also demonstrate that institutional variables are key to account for the mechanisms and the nature of the interactions between the state and the regions, but that these have to be complemented with variables such as party (in)congruence between levels, sub­state claims for distinctiveness and Europeanisation. Scholars studying the regional level have also demonstrated that the type of multi-­level interactions is a crucial factor in accounting for regional migrant integration policy choices. For instance, authors have shown that Quebec’s interculturalism policy clearly originates in the objective of being different from Canadian multiculturalism (e.g. Barker, 2015). The features of the Flemish civic integration policies also seem to be determined by their relations with the federal level and the French Community (Adam, 2013).

State-­local authorities Since the early 2000s, an increasing number of studies have convincingly shown that local migrant integration policy frames can diverge from and even contradict national frames (for recent reviews see Borkert and Caponio, 2010; Scholten and Penninx, 2015; Zapata-­Barrero et al., 2017). Similarly to the study of state-­regions interaction, the European scholarly work on state-­local interactions mostly focuses on immigrant integration rather than on immigration policies. This is very different in the United States where a majority of studies zoom in on the varying local immigration enforcement policies (removals of undocumented migrants, access to rights) (see e.g. Varsanyi, 2010; Lewis et al., 2012; Wong, 2012) rather than on immigration integration (for an exception see Jones-­Correa, 2001). Scholars investigating local policies and local policy-­making processes have put forward two diverging hypotheses to account for local policy variance: the localist thesis and the relational approach. The localist thesis argues that local policies are shaped by local conditions in terms of local problems (immigration numbers, economy, demographics, etc.), local political variables including the power relations among local political parties (Garbaye, 2005), and last but not least governance relations with civil society organisations. Recently, cross-­city/cross-­country comparisons have been carried out to shed light on the role horizontal policy networks play in stimulating convergence at the grassroot level of cities’ policy practices (see: Schiller, 2015; Caponio et al., 2016). The localist thesis is clearly dominant, both in the (mostly European) studies on local migrant integration policies (e.g. Alexander, 2007; Caponio and Borkert, 2010; De Grauw and Vermeulen, 2016) and in the (mostly North Amer­ican) studies on immigration enforcement policies (Lewis et al., 2012; Wong, 2012). 32

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The proponents of the relational thesis argue that local migrant integration policies are not so much or not only shaped by local conditions, but rather by the relations between states and local authorities (Filomeno, 2017; Scholten, 2016). Multi-­level interactions are therefore constituted into independent variables. In this vein, Scholten (2016) argues that vertical policy coordination fosters frame convergence, while an absence of coordination may lead to contradictory policies. While this is a thought provoking contribution, further research should enquire into the causal direction of this link. Is there policy divergence because of the absence of coordination or no coordination because of policy divergence? More recently the local turn has become contested in particular regarding immigrant reception programmes, where central governments seem to reclaim control (Emilsson, 2015; ­Gebhardt, 2016). In his study on local integration policy in Denmark and Sweden, Emilsson argues that while most frame analyses have concluded on competing frames between local and central state authorities, a more fine-­grained study of power relations between levels of government and of the instruments of compliance used by central governments, i.e. funding or direct state involvement in policy implementation, shows how in both countries national governments are still able to steer immigrant integration policies, and therefore to constrain the capacity of local authorities to implement contrasting policies (Emilsson, 2015: 13).

Conclusion This chapter shows that researchers studying migration and migrant integration governance have definitively shifted their attention upwards, downwards and outwards from the nation state. From 2000 onwards, they have increasingly focused on international, regional and local modes of governance. While we adopted a broad definition of MLG as the process of dispersion of authority away from the nation state, we have focused in this chapter on research that has scrutinised the dynamics of this dispersion, namely interactions between governance levels and actors. Our overview clearly demonstrates that scholarly literature focusing on the interaction between governance levels on migration and migrant integration can be presented as two pyramids (see Figure 2.1). The first, on migration governance, is a reversed pyramid, with a heavy top since there are more studies on multi-­level interaction at the top tiers of authority than at the lower tiers. The second is a regular pyramid, showing that research on the multi­level interaction on immigrant integration has mostly analysed the lower tiers of governance. However, throughout the chapter we also highlighted some differences in this respect between North Amer­ican and European foci. European scholars have addressed multi-­level interactions both at the top tiers of authority and at the lower levels, whereas North Amer­ican scholars have mainly studied multi-­level interactions primarily at the lower levels of authority. This is not surprising, considering the absence of a supranational institution like the EU and the federal structure of both North Amer­ican states. There are also differences between US and Canadian approaches to MLG. In the US scholars tend to focus on migration governance in order to account for the – difficult – interactions between the federal government on the one hand and states and local authorities on the other in the enforcement of migration controls, since, as mentioned above, these latter have considerable autonomy in deciding how to carry out federal regulations. The absence of MLG research on immigrant integration in the United States is not surprising, considered its laissez-­faire approach on matters of integration (Bloemraad and De Grauw, 2012). In contrast, scholars zooming in on Canada also address state provinces’ interactions on immigrant integration, particularly with a focus on the impact of Quebec’s claims for distinctiveness. 33

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This overview also indicates that only a few scholars addressing the dispersion of authority and multi-­level interactions in migration and migrant integration policy have explicitly used the concept of MLG and its theoretical tools. Hence, they have started to address conceptual issues such as: what is meant by MLG, how different types of governance interaction can be labelled and defined as well as explained, and how governance interaction can account for policy content. We are still far from definitive conclusions on these research questions. However, compared to only one decade ago, migration scholarship can now rely upon some solid basic building blocks for further concept defining and theory-­building. This is most needed to make sense of the complex mechanisms of the MLG of migration and migrant integration.

Notes 1 The studies mostly focus on vertical relations and sometimes, on horizontal relations between regions. However, they do not study horizontal relations with civil society organisations. 2 In the sense of meso-­level authorities, Länder in Germany, states in the USA, Provinces in Canada, Autonomous Communities in Spain. 3 Labour migration programmes in Canada and the attribution of labour permits in Catalonia and the Belgian Regions.

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The multi-level governance of migration Stubbs, P., 2005. Stretching Concepts Too Far? Multi-­Level Governance, Policy Transfer and the Politics of Scale in South East Europe. Southeast European Politics, 6(2), pp. 66–87. Tränhardt, D, ed. 2013. Immigration and Federalism in Europe Federal, State and Local Regulatory Competencies in Austria, Belgium, Germany, Italy, Russia, Spain and Switzerland. Osnabrück: IMIS. Tortola, P.D. 2016. Clarifying Multilevel Governance. European Journal of Political Research, published online 3 November 2016, doi: 10.1111/1475-6765.12180. van der Leun, J.P. 2006. Excluding Illegal Migrants in The Netherlands: Between National Policies and Local Implementation. West European Politics, 29(2), pp. 310–326. Varsanyi, M.W., 2010. Taking Local Control: Immigration Policy Activism in U.S. Cities and States, Stanford: Stanford University Press. Varsanyi, M.W., Lewis, P.G., Provine, D.M. and Decker, S., 2012. A Multilayered Jurisdictional Patchwork: Immigration Federalism in the United States, Law & Policy, 34(2), pp. 138–158. Vermeersch, P., 2005. EU Enlargement and Immigration Policy in Poland and Slovakia. Communist and Post-­Communist Studies, 38(1), pp. 71–88. Wong, T.K., 2012. 287(g) and the Politics of Interior Immigration Control in the United States: Explaining Local Cooperation with Federal Immigration Authorities. Journal of Ethnic and Migration Studies, 38(5), pp. 737–756. Zapata-­Barrero, R., Caponio, T. and Scholten, P., 2017. Theorizing the ‘Local Turn’ in the Governance of Immigrant Policies: A Multilevel Approach, International Review of Administrative Sciences, Special Issue, 83(2), pp. 241–246. Zincone, G. and Caponio, T. 2006. The Multilevel Governance of Migration. In: Penninx, R., Berger, M. and Kraal, K., eds. The Dynamics of International Migration and Settlement in Europe. A State of the Art. IMISCOE Joint Studies Series. Amsterdam: Amsterdam University Press.

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3 Politics of emigration in Europe Agnieszka Weinar

Introduction Emigration is a term that has had a much longer life in European scholarship than immigration. Indeed, immigration is a quite new phenomenon in Europe: it took off substantially in the decades after the World War II. Emigration on the other hand has a centuries-­long tradition. Moreover, while some countries of Europe shifted to net immigration, a higher number of countries stayed on the net emigration side. In the European Union (EU) alone in 2016, fifteen countries had net immigration while thirteen had net emigration. It is clear that Europe is a continent of emigration as much as it is a continent of immigration. The mainstream scholarship has not been equally engaged with both ends of the migration continuum. Nuancing the two-­way migration status of Europe has been abandoned and instead, the projected image of Europe is that of an immigration continent. This image projects a relatively recent experience of a handful of Western European countries onto the entire continent. In this chapter, I will present the main debates on emigration in Europe in the following way: first, I will describe historical developments of European emigration scholarship; then I will discuss the place European emigration research has in global migration and diaspora studies. I will conclude this brief review with considerations of the conceptual issues that might pose barriers to the development of the field, as well as the way forward.

Perspectives on European emigration Historical views Europe has a long tradition of regulating the exit of people. In fact, it had the first migration policy in history, practiced over centuries in all the states that were developed enough to assure administrative control of its subjects (Mau et al., 2012; Torpey, 2000). Until the post-­World War II period, emigration was not perceived (socially and legally) as a right (Dowty, 1989). The state (or another administrative unit) was in full control over the mobility of its subjects, and later, citizens. An individual was the basic element of the systems of production, taxation and culture. This vision lay behind the indenture structures (approved by the state but executed on lower levels of government) binding peasants to the land, for example. Emigration was seen as 38

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a loss, especially in situations of increased need for human capital, e.g. during wars or industrialisation periods (Zolberg, 1989). As a result, the outward mobility of vast parts of the population in Europe was restricted for centuries. The massive transatlantic migration of the late 1800s/ early 1900s was caused by the Europe-­wide release of indentured peasants and artisans, which was in turn made possible by the demographic boom and industrialisation. Policies regulating exit became more sophisticated and even if mobility was easier, it was still regulated (e.g. by the requirement of permits to move between jurisdictions, especially in the late period of colonialism and transatlantic migrations (Mau et al., 2012)). In the post-­World War II period, the approach to individual rights changed. The Cold War and the division of the continent into liberal Western democracies and the totalitarian block of communist states which restricted the outflow of citizens made emigration a fundamental human right (legislated for) in the West. Indeed, emigration began to be portrayed as a state failure. In Western Europe, decreasing outflows led scholars to focus their attention elsewhere. The issue of emigration from Northern European countries has rarely been discussed by Western social studies scholars, even despite the fact that countries such as West Germany or the UK saw net emigration well into the 1960s. Indeed, the vast field of European emigration and diaspora studies has been left to the historians. The longer tradition of outflows from Southern European countries has been analysed more but even this stream of literature weakened over time (Baganha, 1988; Gabaccia, 1997; Russell, 1986; Weiner, 1995). Emigration policy studies in post-­war Europe developed over the years in two different directions: (1) criticism of emigration restrictions imposed by totalitarian states in Eastern Europe; and (2) emigration seen as an economic policy of developing states outside Europe. The first substantially equated emigration policy with exit bans, while the second paved the way to what is known today as diaspora studies. Critique of emigration policies understood as exit bans was popular with Western academics. Dowty (1989) systematically analysed two processes used by totalitarian states to regulate the flows of its own citizens: exit restrictions and forced emigration. Dowty found that egalitarian regimes (or systems) tend to restrict exit more than nationalistic regimes. Left-­wing regimes (i.e. communist regimes) saw emigration as a betrayal of ideology, an escape from a common community project and an individualistic choice. Moreover, the arguments used were generally economic: in the communist era, the authorities argued that they did not want people educated at the expense of the society (community) to profit other countries and societies. The promoted image of emigration as a dangerous and painful experience only added arguments for a strict control on exits. Interestingly, in European communist states emigration was banned only in Albania and Romania (until 1989). However, in other countries exit control was implemented bureaucratically, for example, through difficult passport procedures (Stola, 2012). This is not to say that communist regimes did not encourage emigration: they did, for political opponents. Forced emigration was usually achieved through indirect actions (administrative difficulties, limits to rights) or direct invitations to leave (Kłoczowski and Beauvois, 2000; Matelski, 1999; Stola, 1992, 2000). In these cases, the exit bans were lifted and passports were delivered quickly. The second view on emigration policy has been developed in the area of development studies and focuses on the impact of brain-­drain on the development prospects of low-­income countries (Adams and Rieben, 1968). Interestingly, scholars from highly developed countries did not focus at all on the same questions in relation to their own societies. Rather, they engaged in the debate in the context of low-­income countries. In this way, emigration policy became something for less fortunate states and began to be associated with social, political and economic failure. At the opposite end, immigration policy has become the prerogative of wealthy and successful states. 39

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This is not to say that European scholars did not look into emigration at all. In Southern Europe, but also in Ireland, emigration has been a core part of research developed side by side with immigration studies. Emigration scholars were interested mainly in the way diaspora and emigrants build connections with the country of origin (Glynn, 2011; Tintori, 2009). Some focused on the impact of emigration on the economic prospects of the country (Baganha, 1994; Faini and Venturini, 1994). However the most work on emigration has been done since 1989 by scholars in Eastern and Central Europe, for obvious reasons: the volume of emigration there is still higher than immigration, a trend that was actually reinforced after the fall of communism, when people were finally free to move.

Post-­1989 emigration in Europe Emigration and emigration policy are still the main focus of scholarship in post-­communist European states (Hazans, 2010; McCollum and Apsite-­Berina, 2015; Okólski and Stola, 1999; Vaculík, 2002). This scholarship has tackled the impact of emigration on the country of origin, as well as on the emigrants themselves. Brain-­drain, development, citizenship, costs to the society of origin, and the human rights of emigrants are the main concepts discussed in this literature. In contrast to Western European (or Southern European) accounts, the scholars in post-­ communist states had a rare occasion to push forward the theoretical framing of emigration and diaspora studies while studying their own societies, given the new phenomena that emerged in 1990s: millions of Europeans across the continent engaged in what has been conceptualised as ‘shuttle migration’ (Iglicka, 2000), ‘pendular migration’ (Kupiszewski, 2006) or ‘incomplete migration’ (Okólski, 2001). All these terms denoted the same phenomenon: the back-­and-forth mobility created by the peculiar mobility policies developed on the continent after 1989. Visa liberalisation for the citizens of the post-­communist states of Eastern and Central Europe in 1995 allowed for periodic, circular movements of workers between the EU and this region. At the same time, the citizens of several Eastern European post-­Soviet states did not need visas to enter the Central Eastern European (CEE) post-­communist countries until their accession to the EU in 2004, which created another zone of mobility. CEE migrant workers would go for short periods of time to work in specific sectors of the Western and Southern European economy (domestic care, construction or agriculture), while citizens from post-­Soviet states chose CEE countries as their destinations in the same sectors (Kindler, 2011; Weinar, 2006). All would enter as ‘tourists’ for ninety days and their employment was more often than not illegal. Shuttle migration stabilised after the EU accession and became less popular among the citizens of the EU Eastern Member States (Grabowska-­Lusińska and Okólski, 2008, 2009), but it is still a predominant form of mobility in the post-­Soviet space (Di Bartolomeo et al., 2012; Marchetti and Venturini, 2014). Apart from describing and conceptualising mobility patterns, scholars also looked at the economic and social impacts of this mobility on the countries of origin. ‘Incomplete migration’ eased the pressures on the labour market during the difficult transition years of the 1990s and mitigated the economic instabilities. Social remittances brought about by this migration supported the European integration because they built visible links with what was perceived as Europe’s core (Jazwinska and Okólski, 2001). The year 2004 brought seismic changes to emigration patterns in Europe. Eight post-­ communist countries that had become new members of the EU saw a new phenomenon of what is now called in literature ‘post-­accession emigration’ (Black et al., 2010; Grabowska-­ Lusińska and Okólski, 2009; Hazans and Philips, 2009; Levitz and Pop-­Eleches, 2010). In the 40

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same period, migration from the non-­EU Eastern European countries was more and more equally distributed between the EU and Russia (Bara et al., 2013a, 2013b). In the Western Balkans, regional circular mobility has been the predominant form of emigration (Kupiszewski et al., 2009). Interestingly enough, the destinations for emigrants from the European continent as a whole changed in that period as well: countries outside Europe, such as the US or Canada, lost their dominant position as emigration destinations for Europeans, and European destinations, such as the UK, Germany and Russia became the top destinations (Grabowska-­Lusińska and Okólski, 2008; Kaczmarczyk et al., 2012). This was clearly related to the facilitated mobility on the European continent in two sub-­regional political and economic zones: the EU and the Commonwealth of Independent States. EU destinations benefited from the intra-­EU mobility for EU nationals, as well as from the complex web of agreements and labour mobility programs negotiated by the non-­EU countries of origin (European Training Foundation, 2015). Likewise, Russia maintained a multilayered structure of facilitated mobility for citizens of various CIS states (Iontsev and Ivakhnyuk, 2012; Kupets, 2012b). At the same time, the periods spent abroad grew longer: for the intra-­EU movers, the legality of stay was no longer linked to the ninety-­days rule; for non-­EU Eastern Europeans, the periods spent abroad became longer due to the obstacles posed by regulations on a Schengen visa, the specific circular migration programmes offered by some of the EU Member States (e.g. Italy, Spain or Poland) as well as by facilitated mobility within the Commonwealth of Independent States (Di Bartolomeo et al., 2012; Weinar, 2014). Post-­enlargement emigration has been the focus of the largest wave of English-­language studies on emigration in the post-­World War II era. Scholars from all disciplines were interested in the effects that such massive flows of people had on the economies and societies of the countries of origin. These seemed to be varied. As regards labour markets, Poland benefited from the outflows, which stimulated its economy (Kaczmarczyk et al., 2012), while a country like Latvia faced depopulation and economic stagnation (McCollum et al., 2013). The topic of ‘Euro-­ orphans’ was on the scholarly agenda as well (Lutz and Palenga-­Möllenbeck, 2012; Marchetti and Venturini, 2014; Urbanska, 2009), reflecting on children that were left in the countries of origin by parents working in Western EU Member States. This theme linked the literature of intra-­EU mobility with the literature of emigration to the EU from Eastern Europe: scholars from countries like Moldova or Ukraine also engaged in studies of the social impacts of prolonged labour mobility and especially the effects on those left behind (Mosneaga, 2012; Tolstokorova, 2010). The economic effects, especially as regards remittances, have also been studied to some extent (Kupets, 2012a). In the margin of these academic developments were studies that followed a very particular type of emigrants: life-­style emigrants. This relatively small stream of emigration literature focused on relatively wealthy Northern Europeans who chose to emigrate for extended periods abroad, mostly pensioners moving to Southern destinations. The research in this stream presents largely sociological and ethnographic accounts of their experience and has not been involved in policy analysis (Benson and O’Reilly, 2009; King et al., 2000), with the exception of a handful of scholars looking at the public policy impacts of mobile retirees (Coldron and Ackers, 2009; La Parra and Mateo, 2008). The latest wave of interest in emigration across the continent was brought about by the financial crisis of 2008. Those leaving Western Europe were a reminder that Europe is, in fact, a region of emigration (Finch et al., 2010; Gilmartin, 2015; Glynn et al., 2013; Marques, 2014; Okólski, 2009). The issue of emigrating skilled youth (especially from the countries most hit by the recession) was put at the centre of several EU-­wide research activities1 and prompted a 41

Agnieszka Weinar

renewed interest in European emigration in the twenty-­first century in mainstream literature (Balci and Michielsen, 2013; Cairns, 2014). This included emigration to non-­EU destinations (Weinar, 2017a). That interest turned attention to the policies governing relations with European emigrants and diasporas.

Emigration and diaspora policies in Europe In this section I would like to make a distinction between temporary workers and diaspora members. The definition of diaspora is a very contentious one and has been debated elsewhere (Bauböck and Faist, 2010). As explained elsewhere in this volume (van Houte, this volume), it is not perfectly clear who can be counted as a diaspora member, and indeed it seems the inclusion/exclusion criteria are based on a political choice of the country of origin (Desiderio and Weinar, 2014). There is however a fundamental difference between individuals moving temporarily, such as students and temporary workers, and those settled permanently abroad or born abroad: they need different types of support from their country of origin (Weinar, 2017b). So far, these distinctions have not been widely recognised by the scholarship in diaspora studies, although some debates have been initiated (Délano and Gamlen, 2014). Recently, I suggested making a distinction between policies that influence the mobility of citizens (emigration policies) and policies that build links with diaspora (Weinar et al., 2017; Weinar, 2017b). The distinction in my opinion must be made in the face of new processes shaping the mobility of people worldwide: states have been more and more involved in managing the outward mobility of their citizens, not so much through exit bans, but through the use of bilateral and multilateral arrangements that support visa-­free mobility or facilitate access to foreign labour markets for temporary or more permanent periods. These types of policies cannot be called ‘diaspora policies’ because they do not focus on a settled community of kinspeople abroad and on their political, economic or cultural rights. Their primary targets are citizens willing to migrate for shorter or longer periods of time and who thus expect mobility facilitations. The prior example of such an arrangement is intra-­EU mobility: from the perspective of the countries of origin, it brings about the perfect legal framework, lowering risks related to outward mobility, supporting more temporary movements and replacing permanent emigration in many cases. Diaspora policies are much broader, assuring links with the countries of origin for the populations that are settled abroad, much in line with the definitions provided in the literature (citizenship rights, economic rights or heritage promotion). Following this line of analysis, it is clear that in post-­1989 Europe emigration policies as defined above have been in full bloom. Mobility has become much easier for the majority of Europeans across the continent. The countries aspiring to EU membership were able to secure almost risk-­free emigration for their citizens after accession. Those in the EU neighbourhood have been able to negotiate not only visa facilitation or liberalisation agreements, but also a range of bilateral labour mobility agreements (this includes temporary workers programmes and youth mobility programmes) with the EU but also Russia. The focus on equal access to labour markets and workers’ rights for emigrants in the EU has been a top concern for countries such as Moldova or Turkey. The mobility towards the Russian Federation has also pushed several countries in Eastern Europe to raise the question of equal treatment for their emigrants (Makaryan, 2013; Makaryan and Chobanyan, 2014). It seems that non-­European countries of origin have a harder time assuring mobility facilitation than the countries in the web of political arrangements on the continent (Weinar, 2017a). The particular stream of diaspora studies focuses on the policies and politics of dealings with diaspora and migrant populations abroad. Promoted by international organisations (Agunias, 42

Politics of emigration in Europe

2009; de Haas, 2006; Weinar, 2010), the policies of countries of origin such as the Philippines or Mexico are now being replicated all over the globe, including in some European countries (Collyer, 2013). The main two axes of these policies are diaspora-­building and diaspora-­ engagement (Gamlen, 2008). The first type of policies focuses on building political and cultural extraterritorial communities (e.g. extending citizenship and voting rights to populations abroad), while the second targets the economic engagement of diaspora in the country of origin (especially through remittance programmes for investment in the countries of origin). Political rights have been a focus of research developed primarily at the European Union Democracy Observatory.2 The research was prompted by the observation that more and more European countries were accepting or tolerating dual citizenship (Bauböck et al., 2009; Faist, 2012; Vink and Bauböck, 2013). It was a natural process for the post-­communist states, who relinked in this way to those who had left the country during the years of the regime. Several Western European countries simply followed the decades-­long tradition of building links with emigrants (like Ireland or Portugal) or giving citizenship rights to mobile citizens (Spain or France). Voting rights for emigrants have been an important part of these analyses. Arringhi et al. (2013) noted that countries in Europe have given more voting rights to the populations residing abroad over the last 20 years (Collyer, 2013; Lafleur, 2011, 2015; Lisi et al., 2014; Tintori, 2012; Vink and Bauböck, 2013). As regards national elections, EU nationals who migrate are subject to the national legal framework on electoral rights: they can be allowed to vote as non-­migrant residents; they may be allowed to vote for representatives in specific external districts (Italy, France, Portugal, Croatia); they may be allowed to vote only when they go back to their country of origin; or, they may face disenfranchisement altogether if they stay away for a longer period (the case for six countries in 2014). The European Commission also seems to have held an important influence as regards voting rights in the case of European elections. The EU itself does not legislate on national voting rights, but it can influence the national legislation to assure equal treatment of EU citizens who reside in their country of origin and those who do not. In the 2014 elections to the European Parliament, the legislation of four EU Member States made it impossible for their citizens staying abroad to vote for candidates in their country of origin. The only way mobile EU citizens could have voted was to be a resident of another EU Member State and vote for the candidates of that state. Obviously, EU nationals who do not take up residence (e.g. visitors or short-­term students), as well as those EU citizens who stay outside of the EU, are excluded from this possibility. A closer look at the publications in the field of political rights for emigrants shows that there is a correlation between how the state defines nationhood and how it builds political bonds with those who have left (Collyer, 2013; Lafleur, 2015; Lisi et al., 2014; Tintori, 2012; Vink and Bauböck, 2013). There is no particularly European pattern to this (Weinar, 2017c). The approach has been elaborated through decades of emigration and diaspora-­building (or diaspora­shaming) and thus the end result is not homogenous, although we see a certain preference for more generous policies in this domain. The countries with more historical and recent emigration flows and a strong ethno-­national identity tend to confer more rights to their diaspora in an effort to promote nation-­building (Collyer, 2013). The differences are not really about Northern, Southern, Eastern or Western Europe, but about how the given country historically thought about their diaspora. In France, emigres are perceived as citizens, a valuable element of French international power, and hence emigres have strong political ties to France and benefit from active mobility policies, such as support for labour market insertion in several countries, extensive youth exchange programmes and support for information on outward mobility possibilities (Hampshire, 2013). In the UK, emigres are not thought of at all; they are treated as a part 43

Agnieszka Weinar

of the global flows of people and as having no special consequence for the country, hence e.g. their limited political rights. The long-­term positive historical discourses overshadow periods of shaming in the case of the post-­communist states, which cherish their emigrants before and after the communist rule, while shaming them during that rule (Stola, 2000). Century-­long traditions of cherishing emigrants as heroes escaping poverty are present in Italy and Portugal, for example (Franzina, 2014, Santana-­Pereira and Horta, 2017). The Russian approach to diaspora, however, is now quite puzzling: on the one hand, it provides generous citizenship policies to Russophone communities (especially in neighbouring countries) and often threatens pre-­emptive action to protect their cultural and economic rights; on the other, it has become highly suspicious towards dual nationals and people emigrating abroad for longer periods. Finally, there are countries that do not confer political rights to those living abroad for fear of disproportionate influence: Ireland and Malta’s populations of emigrants, for example, outnumber their domestic populations (Buttigieg and DeBono, 2015; Glynn et al., 2013). Diaspora engagement is an area where the European states have had a mixed record. They tend to focus more on heritage promotion than on economic engagement for investment. European states support cultural events and cultural education (e.g. language courses) among the diasporas, but they are less interested in investment and economic ties (with some exceptions). One reason for this is that the migration and development agenda has been, for the longest time, identified as the policy for developing countries of the Global South. European countries, in or out of the EU, would not want to admit to being interested in a policy prescribed for low-­income countries on other continents. Yet some of the countries in Southern and Eastern Europe, particularly Albania and Moldova, have become leaders in this approach. Another reason is that diaspora engagement has been mainstreamed in the majority of the EU Member States and is referred to as business promotion, with companies that are linked to the diaspora being the main targets. However, a proper diaspora strategy is a novelty for many European countries that only decided to develop one in the aftermath of the 2008 financial crisis (e.g. Latvia). Only a few European countries have a policy towards returnees (temporary workers coming back or returning diaspora members). Interestingly, these policies tend to be promoted by the EU as a part of the Global Approach to Migration and Mobility in non-­EU countries (see Reslow, this volume), while EU Member States do not bother to engage in such policies at all. Probably the core difference between the EU and non-­EU Europe as regards emigration and diaspora is the image of each. The EU Member States focus their efforts on immigration rather than on emigration, even if they are net emigration countries. They have no incentive, coming from either peer policy networks or the EU-­level, to invest in diaspora engagement or returnee policies. However, the European countries outside of the EU have been the target of international policy networks to adopt such policies (see van Houte, this volume).

Emigrants and mobile citizens: a new/old research area In the previous sections I sketched the state-­of-the-­art in emigration scholarship in Europe. There are still research and policy gaps that could be addressed in the future academic work in this domain. The first problem in existing scholarship is conceptualisation. Who is a European emigrant in the twenty-­first century? The dominant image of European emigrant is that of an ethnic European individual leaving for a permanent stay abroad. The growing temporary and circular mobility due to supporting policies make this particular image outdated. International mobility is now a European value, seen as an important feature of the life of the European educated 44

Politics of emigration in Europe

elites: the ‘Eurostars’ (Favell, 2011) have become ‘Euroboomerangs’, i.e. Europeans engaged in prolonged periods of work or studies abroad, with many actually returning home at some point. The second problem is the assumptions we make about the characteristics of the diaspora and migrants. Somehow, the nation states (not only in Europe, but predominantly so) visualise their diaspora as a mono-­cultural and mono-­ethnic entity. Only the UK openly suggests that it does not have a developed diaspora policy because of the diversity of its own emigrants. In other countries, especially those building close political ties with the nation-­beyond-the-­borders, the diaspora policies always focus on the ethnic majority (e.g. Turkish diaspora policies do not target the Kurds, Polish diaspora outreach does not take the Polish Ukrainians into account). And yet the people emigrating from European countries reflect European diversity, be it ethnic or linguistic (e.g. on the Belgian case see (Lafleur, 2011)). There is also the migration of naturalised citizens, or their descendants, that must be taken into account. How to develop diaspora policies (be it heritage promotion or diaspora engagement) towards a diverse group is probably the most important challenge for the European emigration and diaspora policymakers in the twenty-­first century. A third issue is the presence of the EU, which actually changed the understanding of migration on the continent. There is a clear inside/outside division in how migration is defined. Inside the EU, internal migration is seen as flows of EU citizens exercising their rights to mobility. The internal framework supporting rights and eliminating risks to migration makes many diaspora and emigration policies of individual states superfluous. However, the EU does not support EU citizens trying their luck outside of the EU (e.g. in the US or Australia), leaving this to the individual Member States. It seems that in non-­European countries, consideration of emigration has also shifted, prompted by the EU example. The Commonwealth of Independent States (CIS) and Eurasian Union is focusing on creating a legal framework that fundamentally changes the risks of emigrating within this geopolitical region (Iontsev and Ivakhnyuk, 2012). The question that needs to be further explored is whether such regional entities create a fundamentally different experience of emigration, and thus shape the diaspora and emigration policies of their Member States in a meaningful way. Fourth and finally, there is the new wave of trade agreements that include important facilitations of the mobility of people while lowering the risks of emigration. They involve the EU and other developed countries, but also include neighbouring countries in Europe. What might be the role of the trade agreements in changing the landscape of diaspora policy making? Emigration and diaspora policies as well as politics in Europe thus offer several promising avenues for research and academic inquiry.

Notes 1 E.g. www.imiscoe.org/what-imiscoe-does/research/research-groups/146-yamec. 2 www.eui.eu/Projects/EUDO/Home.aspx/.

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Agnieszka Weinar Baganha, M.I. (1988) Social marginalization, government policies and emigrants’ remittances: Portugal 1870–1930. Estudos e Ensaios, pp. 431–449. Baganha, M.I.B. (1994) As correntes emigratórias portuguesas no século XX eo seu impacto na economia nacional. Análise Social, pp. 959–980. Balci, Z. and Michielsen, J. (2013) Emigrate from Belgium to the ancestral homeland: the motives and experiences of Turkish descendant youth. In: Young adult mobility options and alternatives in times of economic crises. Malmo, Sweden. Bara, A., Di Bartolomeo, A., Brunarska, Z., Makaryan, S., Mananashvili, S. and Weinar, A. (2013a) Regional migration report: Eastern Europe. Available from: http://cadmus.eui.eu/handle/1814/28898 [Accessed 22 April 2014]. Bara, A., Di Bartolomeo, A., Brunarska, Z., Makaryan, S., Mananashvili, S. and Weinar, A. (2013b) Regional migration report: South Caucasus. Bauböck, R. and Faist, T. (2010) Diaspora and transnationalism: concepts, theories and methods. Amsterdam, Amsterdam University Press. Bauböck, R., Perchinig, B. and Sievers, W. (2009) Citizenship policies in the new Europe. Amsterdam: Amsterdam University Press.  Benson, M. and O’Reilly, K. (2009) Migration and the search for a better way of life: a critical exploration of lifestyle migration. The Sociological Review, 57 (4), pp. 608–625. Black, R., Engbersen, G. and Okólski, M. (2010) A continent moving west?: EU enlargement and labour migration from Central and Eastern Europe. Amsterdam: Amsterdam University Press. Buttigieg, E. and DeBono, D. (2015) Country report on citizenship law: Malta. Available from: https:// dspace.mah.se/handle/2043/18591 [Accessed 13 April 2017]. Cairns, D. (2014) ‘I wouldn’t stay here’: economic crisis and youth mobility in Ireland. International Migration, 52 (3), pp. 236–249. Coldron, K. and Ackers, L. (2009) European citizenship, individual agency and the challenge to social welfare systems: a case study of retirement migration in the European Union. Policy & Politics, 37 (4), pp. 573–589. Collyer, M. (2013) Emigration Nations. London; New York, Palgrave Macmillan. Available from: http:// us.macmillan.com/emigrationnations/MichaelCollyer [Accessed 16 July 2013]. Délano, A. and Gamlen, A. (2014) Comparing and theorizing state–diaspora relations. Political Geography, 41, pp. 43–53. Desiderio, M.V. and Weinar, A. (2014) Supporting immigrant integration in Europe? Developing the governance for diaspora engagement [Internet]. Available from: www.migrationpolicy.org/research/ immigrant-integration-europe-developing-governance-diaspora-engagement [Accessed 22 June 2015]. Di Bartolomeo, A., Makaryan, S., Mananashvili, S. and Weinar, A. (2012) Circular migration in Eastern partnership countries: an overview. Available from: http://cadmus.eui.eu/handle/1814/24873 [Accessed 20 April 2014]. Dowty, A. (1989) Closed borders: the contemporary assault on freedom of movement. New Haven, Yale University Press. European Training Foundation (2015) Migrant Support Measures From An Employment And Skills Perspective (MISMES): global inventory with a focus on countries of origin. Available from: www.etf. europa.eu/web.nsf/pages/MISMES_global_inventory [Accessed 25 March 2017]. Faini, R. and Venturini, A. (1994) Italian emigration in the pre-­war period. In: Hatton, T.J. and Williamson, J.G. eds. Migration and the International Labor Market, 1850–1939. London and New York: Routledge, pp. 72–90. Faist, T. (2012) Dual citizenship in Europe: from nationhood to societal integration. Farnham, Ashgate. Favell, A. (2011) Eurostars and Eurocities: free movement and mobility in an integrating Europe. Chichester: John Wiley & Sons.  Finch, T., Andrew, H. and Latorre, M.C. (2010) Global Brit: making the most of the British diaspora. London, Institute for Public Policy Research. Franzina, E. (2014). Una patria espatriata. Lealtà nazionale e caratteri regionali nell’immigrazione italiana all’estero (secoli XIX e XX). Edizioni Sette Città. NOTE  Gabaccia, D.R. (1997) Per una storia italiana dell’emigrazione. Altreitalie, 16, pp. 7–14. Gamlen, A. (2008) The emigration state and the modern geopolitical imagination. Political Geography, 27 (8), pp. 840–856. Gilmartin, M. (2015) Ireland and migration in the twenty-­first century. Manchester. Manchester University Press. 

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Politics of emigration in Europe Glynn, I. (2011) Emigration across the Atlantic: Irish, Italians and Swedes compared, 1800–1950. Available from: http://d-nb.info/1031445013/ [Accessed 8 June 2015]. Glynn, I., Kelly, T. and MacEinri, P. (2013) Irish emigration in an age of austerity. Cork, Department of Geography & Institute for the Social Sciences in the 21st Century, University College Cork. Grabowska-­Lusińska, I. and Okólski, M. (2008) Migracja z Polski po 1 maja 2004 r.: jej intensywność i kierunki geograficzne oraz alokacja migrantów na rynkach pracy krajów Unii Europejskie. CMR Working papers. Available from: www.econstor.eu/handle/10419/140817 [Accessed 12 April 2017]. Grabowska-­Lusińska, I. and Okólski, M. (2009) Emigracja ostatnia? Warszawa: Wydawnictwo Naukowe Scholar . de Haas, H. (2006) Engaging diasporas: how governments and development agencies can support diaspora involvement in the development of origin countries [electronic resource]. Oxford, International Migration Institute, University of Oxford. Hampshire, J. (2013) An emigrant nation without and emigrant policy: the curious case of Britain. Emigration nations: the ideologies and policies of emigrant engagement, Basingstoke, Palgrave, pp. 302–326. Hazans, M. (2010) Latvijas emigrācijas mainīgā seja: 2000–2010. Izdevumā Zepa B., Kļave E. (red.), Latvija. Pārskats par tautas attīstību, 2011, pp. 70–91. Hazans, M. and Philips, K. (2009) The post-­enlargement migration experience in the Baltic labor markets. In: EU labor markets after post-­enlargement migration. Berlin and Heidelberg: Springer, pp. 255–304. Iglicka, K. (2000) Mechanisms of migration from Poland before and during the transition period. Journal of Ethnic and Migration Studies, 26 (1), pp. 61–73. Iontsev, V. and Ivakhnyuk, I. (2012) Role of international labour migration in Russian economic development. Available from: http://cadmus.eui.eu/handle/1814/23479 [Accessed 20 April 2014]. Jazwinska, E. and Okólski, M. (2001) Ludzie na hustawce. Migracje miedzy peryferiami Polski i Zachodu. Warsaw, Scholar. Kaczmarczyk, P., Lesinska, M., Uniwersytet Warszawski and Osrodek Badan nad Migracjami (2012) Krajobrazy migracyjne Polski. Warszawa, Osrodek Badan nad Migracjami Uniwersytetu Warszawskiego. Kindler, M. (2011) A risky business?: Ukrainian migrant women in Warsaw’s domestic work sector. Amsterdam: Amsterdam University Press. Available from: www.oapen.org/search?identifier=416051 [Accessed 12 April 2017]. King, R., Warnes, A.M., Warnes, T. and Williams, A.M. (2000) Sunset lives: British retirement migration to the Mediterranean. Oxford: Berg. Kłoczowski, J. and Beauvois, D. eds. (2000) Historia Europy Środkowo-Wschodniej. Lublin, Instytut Europy Środkowo Wschodniej. Kupets, O. (2012a) The development and the side effects of remittances in the CIS countries: the case of Ukraine. Available from: http://cadmus.eui.eu/handle/1814/23477 [Accessed 20 April 2014]. Kupets, O. (2012b) The economic and demographic effects of labour migration in the EU Eastern partners and Russia: a synthesis report. Available from: http://cadmus.eui.eu/handle/1814/24869 [Accessed 20 April 2014]. Kupiszewski, M., Kicinger, A., Kupiszewska, D. and Flinterman, F.H. (2009) Labour migration patterns, policies and migration propensity in the Western Balkans. CEFMR. Available from: www.iom.hu/ PDF/Labour%20Migration%20Patterns_Policies%20and%20Migration%20Propensity%20in%20 the%20Western%20Balkans.pdf [Accessed 12 April 2017]. Kupiszewski, M. (2006) Migration in Poland in the period of transition: the adjustment to the labour market change. Economic Research Series, Institute of Economic Research Hitotsubashi University, 40, p. 255. Lafleur, J.-M. (2011) Exporting ethnic divisions? The political participation of Belgian citizens abroad. Available from: http://orbi.ulg.ac.be/handle/2268/91987 [Accessed 13 April 2017]. Lafleur, J.-M. (2015) The enfranchisement of citizens abroad: variations and explanations. Democratization, 22 (5), pp. 840–860. La Parra, D. and Mateo, M.Á. (2008) Health status and access to health care of British nationals living on the Costa Blanca, Spain. Ageing and Society, 28 (1), pp. 85–102. Levitz, P. and Pop-­Eleches, G. (2010) Monitoring, money and migrants: countering post-­accession backsliding in Bulgaria and Romania. Europe-­Asia Studies, 62 (3), pp. 461–479. Lisi, M., Belchior, A.M., Abrantes, M. and Azevedo, J. (2014) Out of sight, out of mind? External voting and the political representation of Portuguese emigrants. South European Society and Politics, pp. 1–21. Lutz, H. and Palenga-­Möllenbeck, E. (2012) Care workers, care drain, and care chains: reflections on care, migration, and citizenship. Social Politics: International Studies in Gender, State & Society, 19 (1), pp. 15–37.

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Agnieszka Weinar Makaryan, S. (2013) Emigration-­diaspora policy nexus in migration policies of the EU Eastern Partnership countries and in Russia. European Unviersity Institute, Research Paper. Makaryan, S. and Chobanyan, H. (2014) Institutionalization of migration policy frameworks in Armenia, Azerbaijan and Georgia. International Migration, 52 (5), pp. 52–67. Marchetti, S. and Venturini, A. (2014) Mothers and grandmothers on the move: labour mobility and the household strategies of Moldovan and Ukrainian migrant women in Italy. International Migration, 52 (5), pp. 111–126. Marques, J.C. (2014) A emigração portuguesa contemporânea e o Estado: uma Nação dispersa, um Estado longínquo. Revista População e Sociedade, (22), pp. 55–71. Matelski, D. (1999) Niemcy w Polsce w XX wieku /. Wyd. 1. Warszawa, PWN. Mau, S., Brabandt, H., Laube, L. and Roos, C. (2012) Liberal states and the freedom of movement: selective borders, unequal mobility. Basingstoke: Palgrave Macmillan. McCollum, D. and Apsite-­Berina, E. (2015) Recruitment through migrant social networks from Latvia to the United Kingdom: motivations, processes and developments. Migration Letters, 12 (1), pp. 50–66. McCollum, D., Shubin, S., Apsite, E. and Krisjane, Z. (2013). Rethinking labour migration channels: The experience of Latvia from EU accession to economic recession. Population, Space and Place, 19 (6), 688–702. Mosneaga, V. (2012) Социально-Политическое Влияние Трудовой Миграции В Молдове. Available from: http://cadmus.eui.eu/handle/1814/24860 [Accessed 20 April 2014]. Okólski, M. (2001) Incomplete migration: a new form of mobility in Central and Eastern Europe. The case of Polish and Ukrainian migrants. In: Patterns of migration in Central Europe. Berlin: Springer, pp. 105–128. Okólski, M. (2009) Transition from emigration to immigration, is it a destiny of modern European countries? In: Arango, J. et al. ed. Europe, The continent of immigrants. Trends, structures and policy implications. Warsaw, pp.  10–27. Available from: www.idea6fp.uw.edu.pl/pliki/WP13_Europe_continent_of_ immigrants.pdf#page=10 [Accessed 16 July 2013]. Okólski, M. and Stola, D. (1999) Migrations between Poland and the European Union: the perspective of Poland’s future membership of EU. Ośrodek Badań nad Migracjami, Inst. Studiów Społecznych UW. Russell, S.S. (1986) Remittances from international migration: a review in perspective. World Development, 14 (6), pp. 677–696. Santana-­Pereira, J. and Horta, A.P. (2017) A global nation? The evolution of emigration and diaspora policies in Portugal (1960–2016). In: Weinar, A. ed. Emigration and Diaspora Policies in the Age of Mobility. Cham: Springer, pp. 121–137. Stola, D. (1992) Forced migrations in Central European history. International Migration Review 26 (2), pp. 324–341. Stola, D. (2000) Emigracja pomarcowa. Instytut Studiów Spolecznych UW. Available from: www.migracje. uw.edu.pl/download/publikacja/459/ [Accessed 17 July 2013]. Stola, D. (2012). Kraj bez wyjścia?: migracje z Polski 1949-1989. Warsaw: Inst. Pamięci Narodowej. Tintori, G. (2009) Nuovi italiani e italiani nel mondo. Il nodo della cittadinanza. Storia d’Italia-Annali–24 Migrazioni, pp. 743–64. Tintori, G. (2012) Il voto degli altri: rappresentanza e scelte elettorali degli italiani all’estero. Available from: http://cadmus.eui.eu/handle/1814/39782 [Accessed 28 April 2016]. Tolstokorova, A.V. (2010) Where have all the mothers gone? The gendered effect of labour migration and transnationalism on the institution of parenthood in Ukraine. Anthropology of East Europe Review, 28 (1), pp. 184–214. Torpey, J. (2000) The invention of the passport: surveillance, citizenship and the state. Cambridge: Cambridge University Press.  Urbanska, S. (2009) Matka migrantka. Perspektywa transnarodowosci w badaniu przemian ról rodzicielskich). Studia Migracyjne-­Przeglad Polonijny, 1 (35), pp. 61–84. Vaculík, J. (2002) Češi v cizině-emigrace a návrat do vlasti. Masarykova univerzita. Vink, M.P. and Bauböck, R. (2013) Citizenship configurations: analysing the multiple purposes of citizenship regimes in Europe. Comparative European Politics, 11 (5), pp. 621–648. Weinar, A. (2006) Europeizacja polskiej polityki wobec cudzoziemców: 1990–2003. Warsaw, Wydawn, Naukowe Scholar. Weinar, A. (2010) Instrumentalising diasporas for development: international and European policy discourses. In: Bauböck, R. and Faist, T. eds. Diaspora and transnationalism: concepts, theories and methods, Diaspora and transnationalism: Concepts, theories and methods. Amsterdam University Press, Amsterdam, pp. 73–89. 

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Politics of emigration in Europe Weinar, A. (2014) A look at migrations in the post-­Soviet space – the case of Eastern Europe, South Caucasus and Russian Federation. International Migration, 52 (5), pp. 47–51. Weinar, A. (2017a) Cooperation on migration and the revised European Neighbourhood Policy. In: The Revised European Neighbourhood Policy. Cham: Springer, pp. 263–283. Weinar, A. ed. (2017b) Emigration and diaspora policies in the age of mobility. Cham: Springer. Weinar, A. (2017c) From emigrants to free movers: whither European emigration and diaspora policy? Journal of Ethnic and Migration Studies 43 (13), pp. 1–19. Weiner, M. (1995) The global migration crisis: challenge to states and to human rights. New York, HarperCollins College. Weinar, A., Unterreiner, A. and Fargues, P. (Eds). (2017) Migrant Integration Between Homeland and Host Society Volume 1: Where Does the Country of Origin Fit? (Vol. 7). Springer. Zolberg, A.R. (1989) The next waves: migration theory for a changing world. International Migration Review, 23 (3), pp. 403–430.

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4 Beyond methodological western-­centrism The ‘control gap’ debate reconsidered from a global perspective Blanca Garcés-Mascareñas Introduction Theories of migration policies have paid particular attention to the questions why migration policies fail (Castles 2004) or why liberal states accept unwanted migration (Joppke 1998b). Although often mixed up, these two questions point to two different policy gaps. The first question pertains to a gap between policy goals and policy outcomes. According to Hollifield (1992), this gap results from what he calls the ‘liberal paradox’, that is, the mismatch between the economics and the politics of migration: while the former would push states towards openness, the latter would push them towards greater policy closure. Similarly, Cornelius and Tsuda (2004: 5) explained this gap by referring to four main factors: (1) the reliance on policy instruments with inherent flaws; (2) macro-­structural processes, such as the structural demand for migrant workers or cross-­national disparities and transnational economic and social ties; (3) domestic and international constraints; and (4) ambiguous policy intentions. The second question pertains to a gap between public and policymakers at the decision-­ making stage. Taking a neoclassical political economy approach, Freeman (1995) noted a discrepancy between the desires of a largely anti-­immigration public and the expansive bias of policies, which would be formulated under direct pressure from employers and immigrant groups. From a neo-­institutionalist stance, Hollifield (1992, 2005), Joppke (1998a, 1998b, 2005) and Guiraudon (1998, 2000, 2002) explained the gap between a restrictionist rhetoric and an expansionist reality by referring to the self-­limited sovereignty of liberal democracies and, more specifically, to the constraints imposed by liberal constitutions and strong and independent judiciaries. From this standpoint, the gap between public and policymakers would be the result not so much of the (mostly economic) processes of globalisation, but of the difficulties liberal democracies face when it comes to excluding migrants who are already inside their national territory. While these studies have offered greater understanding of the political and legal processes underlying the ‘making’ of immigration policies, their scope is markedly limited: their analysis of migration control in liberal democracies is done from within – in other words, comparing Western liberal democracies with other Western liberal democracies. Comparisons beyond the traditional geographies of migration studies are still very rare. While methodological nationalism is the naturalisation of the nation-­state by the social sciences, assuming that countries are the 50

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natural units for comparative studies and equating society with the nation-­state (Wimmer and Glick Schiller 2003), methodological Western-­centrism would be in this case the naturalisation of the Western liberal democratic state, assuming that Western liberal democracies are the natural and exclusive units for comparative studies. Researchers adventuring in comparisons beyond Western liberal democracies have often been misunderstood by the academia: first accused of comparing ‘apples with oranges’ and second not quite fitting in any debate, neither in political science analyses of migration policies in Western countries nor in more anthropological studies focusing on non-­Western cases. Fortunately, this is slowly changing in the last years. Taking cues from this emerging strand of research but also considering the more recent literature challenging the alleged liberalness of liberal democracies, this chapter challenges the Western-­centrism that dominates the ‘policy gap’ debate by asking: to what extent are liberal democracies unique in their response to migration? And more particularly, to what extent do rights constrain their capacity to exclude unwanted immigrants?

Liberal policies: from institutional to economic accounts In the context of migration, civil and human rights translate into limitations on the state’s capacity to exclude foreigners. This is because civil and human rights are not citizenship rights, strictly speaking. Unlike the latter, the former are guaranteed not only to state members, but to all foreigners (Sassen 1996: 89; Joppke 1998a: 71; Bader 2005: 348). As they are bestowed on individuals qua persons rather than qua citizens – or, in other words, as they turn any individual into an object of the law and a locus of rights – civil and human rights can sabotage restrictive policies. Several scholars have signalled the extent to which human rights constrain state sovereignty and particularly its right to decide who enters and who does not, or who is an insider and who an outsider. The approach of these scholars varies in the way they define the source of these rights. Scholars such as Soysal (1994) and Sassen (1996) have explained rights constraints on the state’s sovereignty by the rise of an international human rights regime based on international agreements and conventions enshrining the rights of migrant workers or the status of refugees, which, they argue, would protect migrants regardless of their nationality. According to these authors, although there are no global mechanisms to guarantee the rights conferred by international conventions, the emergence of the individual as the object of international law and the growing ability of non-­governmental organisations (NGOs) and individuals to make claims on the basis of international human rights instruments would have gradually forced states to be accountable not only to its citizens, but also to all its residents. Other scholars such as Hollifield (1992, 2005), Joppke (1998a, 1998b) and Guiraudon (1998, 2000) have understood rights limitations as being internally rather than externally produced. They emphasise how all Western constitutions enshrine a catalogue of elementary human rights that, together with strong and independent judiciaries, would hamper state capacity to restrict immigration, as any draconian measure in liberal states may be challenged and overturned by the courts as unconstitutional or as a violation of civil rights. Adopting a historical perspective, these authors refer to nationally defined rights and the role of courts to explain the extension of social and residence rights to post-­war guestworkers and their families, as well as the admission of major refugee flows in Western Europe from the 1980s onwards. From a more theoretical perspective, this brings them to the conclusion that rights constraints do not result from declining sovereignty in an increasingly globalised world, but rather from the functioning of the legal system (or rule of law) in liberal states. As Joppke (1998b: 290) notes in a seemingly tautological 51

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sentence: ‘accepting unwanted immigration is inherent in the liberalness of liberal states’. Similarly, Hollifield (2000: 148) has referred to what he calls the ‘liberal state thesis’, or the notion that ‘rights’ (beyond push-­pull and social network factors) are a key explanatory factor for the persistence of international migration to liberal states. Freeman (1995) began from a similar observation when he noticed that, contrary to the widespread rhetoric of restrictionism, the politics of immigration in liberal democracies is ‘broadly expansionist and inclusive’. However, he identified the political process, rather than the legal system, as the major factor of self-­limited sovereignty in liberal states, arguing that their immigration policy is characterised by a ‘client politics’ and a universalistic idiom of liberalism that prevents political elites from playing the ethnicity or race card. In this context, he explained the expansionist, inclusive character of immigration policies by the fact that, while the benefits of immigration (such as cheap labour for employers and reunited families for migrant communities) are concentrated, its costs (such as increased social expenses or rising population) are diffuse. Freeman’s argument suggests that such a distribution of costs and benefits would lead policymakers to be more responsive to their immigration-­advocating clients (employers and immigrant groups) than to the more ambivalent if not hostile general public. Though constituting a first important step in attempts to clarify the logic of immigration policy within the political process of liberal democracies, Freeman’s work has been severely criticised. Three main comments are worth mentioning here. First, Brubaker (1995) observes that many of the trends identified by Freeman are either a general feature of migration or a ‘particular feature of particular discursive fields’. This means that some of the features are either to be found in other political systems, thus not unique to liberal democracies, or are the result of a cultural-­political story about particular times and places, thus not applicable to all liberal democracies. Second, Joppke (1998a: 19–20) points out that Freeman’s approach to immigration policy as client politics seems to work better in settler societies, where immigration coincided with nation-­building. By contrast, in European societies, where immigration postdated nation­building, Joppke finds immigration politics more likely to have been guided by a restrictionist national interest, i.e. by a demand for policy closure. Finally, Freeman does not identify the legal process as a separate source of expansiveness and inclusiveness towards immigrants. This is particularly problematic if we recall (see Guiraudon 1998, 2000) that social rights for immigrants were not only achieved in the open arena of democracy, where different interest groups may have a say, but also behind the closed doors of bureaucracy and the courtroom. Discussions on the limits of migration control in liberal democracies continue to be central in most political analyses of migration policies. Recently, a new strand of research has pointed to the morals of policymakers rather than the legal system or the political process as the main explanatory factor for the inclusiveness of immigration policies. In her study on the making of family migration policies between 1995 and 2005, Bonjour (2011) argues that the influence of court decisions on policymaking was much less significant than assumed by the literature so far. As conditions for entry and stay of foreign family members were entirely in the hands of Dutch politicians and civil servants, she claims that the policymaking of family migration policies was not externally constrained by courts but rather shaped by immaterial norms such as family unity, equal treatment and individual responsibility. Kawar (2015) and Bonjour (2016) add later that, if courts influence migration policies, it may be indirectly by reshaping how political actors frame migration issues. These studies thus confirm that ‘rights-­based politics’ are key to understand migration policymaking in liberal democracies but this is rather due to policymakers’ morals than a result of external constraints imposed by the legal system or the political process. Finally, from a very different perspective, but still regarding the discussion on rights constraints in liberal democracies, the economists Ruhs and Martin (Ruhs and Martin 2008, Ruhs 52

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2013) have signalled that low-­skilled migration in high-­income countries inevitably entails a trade-­off between numbers and rights, arguing that the more rights low-­skilled migrants have, the less advantageous (or desirable) they are. Two basic reasons for this are forwarded. First, if low-­skilled migrants have the right to equal wages and all work-­related benefits, their cost is higher and therefore fewer will be employed. The other side of the coin is that fewer and more limited migrant rights mean lower costs for employers and more migrants employed (ibid.: 7). Second, there is the suggestion that migrants with lower-­than-average incomes tend to pay less in taxes and, because of their lower incomes, may be eligible for more government-­funded services. Although this is up for discussion, Ruhs and Martin conclude (ibid.: 8) that, in order to minimise the fiscal costs of low-­skilled migrants, high-­income countries may limit migrant numbers or their access to welfare benefits. Ruhs and Martin suggest that a key point regarding the role of rights in labour migration is that (low-­skilled) migrants are desirable as long as their access to membership and rights is restricted. If liberal states are self-­constrained by rights and cannot therefore limit migrants’ membership, this would imply that these states are de facto compelled to adhere to a policy of low numbers and high rights. By this logic, countries with few rights constraints would be more inclined to admit numerically significant labour migration flows, as they seem to have more ways of excluding newcomers and hence shoring up the bulwark that protects citizenship. In fact, this same argument is implicit in the typology of different models of immigration suggested by Arango (2003: 3). Leaving aside what we might call the traditional countries of immigration (the US, Canada, Australia and New Zealand), Arango distinguishes between democratic and non-­democratic or autocratic societies. The former would recognise moral and political obligations vis-­à-vis the immigrants while attempting to keep the numbers admitted as low as possible; the latter would tend to have no compunctions about letting in large numbers of people, though only on the condition that they be temporary labourers with limited rights. In brief, to recall the words of Ruhs and Martin (2006), the former would restrict numbers while the latter would restrict rights.

Liberal vs illiberal states: what is the difference? While the above-­mentioned literature has offered greater understanding of the political and legal processes underlying the ‘making’ of immigration policies in liberal democracies, their scope is still limited by their methodological Western-­centrism. Only by going beyond the traditional geographies of migration studies, beyond Western liberal democracies and beyond liberal democracies as such, can we consider to what extent and how politics determine policies. What does recent research say about it? To assess the uniqueness of migration policies in liberal democracies, I compared labour migration policies in Spain and Malaysia (Garcés-Mascareñas 2012). Both countries were similar in their dependence on migrant workers (from the 1990s to 2007) while they are different in their political systems: in contrast to Spain, Malaysia has fundamental limitations in terms of democracy, rule of law and human rights. Based on extensive archival research, interviews with the main stakeholders (40 in each country) and secondary documents, I compared the making, implementation and outcomes of policies regulating entry and stay, regularisation programmes and deportation campaigns. At first sight, a review of these policies over the past 20 years in both countries led me to the conclusion that Spain indeed opted for a policy of low numbers and increasingly higher rights while Malaysia chose for a policy of high numbers and low rights. However, when considering regularisation policies and policy outcomes, it became clear that Spain in fact also opted for a policy of high numbers. 53

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This evidence is corroborated by more recent studies. By analysing a sample of 80 labour immigration programmes across 34 immigrant-­receiving high-­income countries in 2009, Schmid (2016) shows that in high-­income democracies relatively high levels of openness can be combined with relatively high levels of rights. In other words, high rights do not necessarily translate into low numbers. In contrast, in high-­income autocracies openness seems to be clearly prioritised over rights, translating into a policy of high numbers and low rights. The trade-­off between numbers and rights would thus not apply or, at least, not to liberal democracies, because numbers are always high when demand is high: as many immigrants as required by employers tend to enter a country regardless of its political context. This leads one to the conclusion that the economics of migration, rather than the politics of migration, is what matters at the end when we look at labour migration. But what about rights? The comparison between Spain and Malaysia led me to the conclusion that both countries opted for some degree of restriction. Nevertheless, the forms the closure took were different. In Malaysia, migrants’ stay is severely limited: migrants’ residence permits depend on their employer and they are deportable at any moment, in case of economic crisis, illness or pregnancy and after five years of working in the country. This policy is justified in terms of getting labour without getting migrants. In Spain the policy of high rights is the outcome only in the last instance. Given the mismatch between the politics and the economics of migration, most immigrants in Spain entered or stayed irregularly. Irregular immigrants are only partially recognised in the social domain and not recognised in the labour domain, while their presence in the country did not pave the way for their remaining in the country as permanent residents or citizens. In addition, in the early years of legal residence, immigrants acquired only conditioned rights as legal residence depends on the first five years of formal, effective integration into the labour market. But in Spain, indeed, exclusion is only feasible in a partial, temporary form. In the long run most immigrants become permanent residents and citizens. Using a quantitative data set, Koopmans and Michalowski (2012) examine which variables seem to explain changes in immigrant rights over the period 1980–2008 in ten West European countries. Their findings point towards the importance of electoral factors: countries where a significant share of the electorate had immigrant roots were more likely to see subsequent liberalisations of immigrant rights which in turn, if they led to easier naturalisation and more immigration, expanded the immigrant electorate. However, as pointed out by Guiraudon (1998, 2000) with regard to Freeman’s work (1995), this is problematic if we recall that immigrants’ rights have not only been achieved in the open area of democracy but also due to particular court decisions and, in Europe, through the transposition of EU priorities and Directives. To be more precise, the liberalisation of migrants’ rights in Southern and Eastern Europe has more to do with the role of the judiciary and the effects of the European integration process than with an electorate with immigrant roots (Garcés-Mascareñas 2012; Doomernik and Bruquetas-­ Callejo 2016). In a more recent article, Koopmans and Michalowski (2017) come back to the question whether liberal democracy affects immigrant rights and whether it matters to what extent countries are integrated in, and committed to, supranational institutions and conventions. This time they expand the data set to 29 countries worldwide, including immigration countries in Southern and Eastern Europe, North and South America, Africa, the Middle East, East Asia and Oceania. One of their most relevant conclusions is that past matters: having being a major colonising power (e.g. the United Kingdom, France, Spain, Portugal, the Netherlands and Belgium) or a former colony with mass immigration of settlers (e.g. Argentina, Venezuela and Singapore) makes a country more likely to extend rights to immigrants. Despite conditions of sharp inequality and conflict, the colonial past and the subsequent experience with cultural difference 54

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is what seems to account for a much more open position towards immigrants. The final reason is electoral politics again: it is thanks to democracy, through voting, that this openness towards immigrants is finally expressed. But how to reconcile this electoral explanation of generous migration policies with increasingly negative public opinion towards immigrants both in traditional countries of immigration as well as in former colonies of settlement? While the discussion on the relationship between politics and policy has mostly taken the nation-­state as the exclusive arena for policymaking, recent studies have pointed to the increasing relevance of transnational institutions and practices. With regard to the Gulf region, Hélène Thiollet (2016) shows how migrants have been strongly alienated by institutions and practices designed and generated by states and transnational companies, notably oil firms creating an illiberal transnational management of migrations and migrants lives. According to Thiollet, ‘although liberal values and agency are obviously as generally enshrined in transnationalism as in cosmopolitism, transnationalism in the Gulf is associated with an illiberal context and illiberal practices that extend well beyond the state’ (ibid.: 20). In contrast to this ‘illiberal globalisation’, other scholars note the role of international actors in the liberalisation of immigration policies in non­Western countries. Natter (2017), for instance, describes how in Tunisia the presence of International Organisations (IOs), funding agencies and NGOs, bringing with them their funds, activities and discursive frameworks, increased the pressure on state institutions to take the topic of immigration and asylum into account. But can we conclude that democracy leads to more liberal immigration policies and vice versa? There is no clear answer so far. On the one hand, authors such as Cook-­Martin and Fitzgerald (2014) have recently shown that democratic countries in North America were in fact the first to establish ethnic selection criteria in their immigration policies and the last to abolish them, much later than most authoritarian regimes in Latin America. On the other hand, non-­ Western countries sometimes deploy much more inclusive discourses and immigration policies. Acosta Arcarazo and Feline Freier (2015) argue that in Argentina, Brazil and Ecuador inclusive policies do not result from the pressure exerted on the state (by interest groups, bureaucracy and judiciary or supranational actors) but are rather driven by concerns regarding emigration and diaspora policies and the aim to challenge the restrictive immigration rhetoric of Western immigrant-­receiving states. Natter also notes that authoritarian regimes such as Morocco’s monarchy since 2013, Ghaddafi’s regime in the 1990s or Uganda since 2006 have enacted surprisingly liberal policies on entry and stay, mostly based on economic and foreign policy interests. The difference between democratic and non-­democratic states thus seems to be not so much the policy outcome (more or less liberal migration policies) but rather the degree of state autonomy vis-­à-vis other political and institutional actors.

Towards illiberal policies in liberal states A recent strand of research is pointing to the increasing illiberalness of liberal democracies (Guild et al. 2009) or, using Hannah Arendt’s words (2013), to an increasing contesting of foreigners’ ‘right to have rights’. At first sight this has taken place above all at the borders and beyond, through the externalisation of migration control to neighbouring countries. The first reason is that border control, as noted by Lemberg-­Pedersen (2011: 32), posits a moral and political dilemma between state’s rights to sovereign discretion over their borders, on the one hand, and migrants’ right to move and – in the case of refugees – be granted protection, on the other. The increasing securitisation of immigration has translated into a ‘quasi-­military border control approach’ (Spijkerboer 2007), which has systematically led to prioritise state’s rights over immigrants’ rights. The second reason is that democratic and judicial accountability is more lax at the 55

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borders and beyond, meaning that this is where liberal democracies can most easily get around the constraints imposed by their own legal and political systems. In this regard, it is no surprise that it is especially at the border and beyond where the largest­scale, most frequent forms of exclusion occur: at the borders, in the form of detention centres, illegal push-­backs and indiscriminate use of state’s force; in neighbouring countries, with unlimited detention, deadly deportations (e.g. in the middle of the desert) and all kind of abuses. In my comparison between Spain and Malaysia, I argued (2012, 2015) that the images of the ‘border spectacle’, as defined by De Genova et al. (2014), with crowded ships, deaths at the border or deployment of border guards in the so-­called ‘hotspots’, are a specificity of Western liberal democracies. The border’s dominance is a form of excluding immigrants where exclusion is still possible – which is to say, where the state can still get around the constraints imposed by the legal and political systems. In most postcolonial states, in contrast, borders are not erected as walls separating those inside from those outside. Via the country’s airports, crossing land borders or aboard small boats, regular and irregular immigrants cross the country’s borders without much difficulty. Once they are inside, however, illiberal postcolonial states may impose severe control on them, particularly under the threat of being detained and deported at any moment and at life risk. But it would be wrong to conclude that liberal democracies exercise migration control at the borders, while postcolonial illiberal states do it at the heart of their national territories. Several studies (Bigo 2002; Salter 2004; Balibar 2005; Mezzadra 2005; Walters 2006; De Genova et al., 2014) have signalled a tendency towards ‘de-­localisation’ or ‘de-­territorialisation’ from the border inwards. Along with the reinforcement of exterior walls and the externalisation of the border towards the countries of origin and transit, new internal borders are being constructed in liberal democracies too. The first and more evident one is represented by the intensified repression of irregular immigrants over the recent period, with the proliferation of internment spaces and ‘states of exception’ along with their increasing exclusion from the labour market and the most basic social provisions. This has reinforced the equation of illegality with civic exclusion to the extent that several scholars have referred to Giorgio Agamben’s figure of the ‘homo sacer’ (1998), that is, of individuals excluded from juridical existence and reduced to the ‘bare life’ of pure dehumanised corporeity (see Chauvin and Garcés-Mascareñas 2012). But new borders are also being imposed on non-­nationals in general. In contrast to the previously mentioned literature, which assumes that the liberalness of liberal states fosters greater inclusion, openness and pluralism with respect to migration policies and minority rights, several scholars have noted that (mostly) Europe is increasingly deploying liberal norms as boundary-­ makers between insiders and outsiders, between those having ‘the right to have rights’ and those who don’t (Guild et al. 2009). The best examples are compulsory integration courses and citizenship tests. By requiring adherence to liberal values, these ‘soft policy instruments’ become a tool to control the non-­national ‘inside’ the nation-­state, particularly at the moment of entry, residence renewal, family reunification and protection against expulsion (Guild et al. 2009; Adamson et al. 2011; Triadafilopoulos 2011). In all these moments, adherence to liberal values is being used to facilitate the state practice of a restrictive immigration policy. In short, liberal values are used as a means for illiberal purposes. According to Triadafilopoulos (2011: 867), with the demise of scientific racism and the weakening of extreme nationalism among liberal democratic countries, the boundary maintenance both within and among states is increasingly being cast in terms of value compatibility. Boundaries are now based on ‘principles’ rather than biological descent or culture. But this does not make them less exclusionary. The framing of the problem in existentialist terms, as a way to preserve ‘Western civilisation’ from illiberal threats, particularly those based on ‘fundamentalist 56

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Islam, justifies policies that otherwise would have been seen to contravene liberal principles of toleration and equality’ (ibid.: 863). From this perspective, Triadafilopoulos follows, ‘immigrant integration is not simply another public policy challenge among others’ but rather ‘a crucial front in a larger war in which the very survival of “Western civilisation” is at stake’. In such a war, immigrants are either ‘with us or against us’ (ibid.: 873). As it is presented as a battle that may not be lost, rules and procedures are deemed over-­costly impediments and therefore presented as secondary and, ‘if necessary’, susceptible to be ignored.

Conclusions Reconsidering migration regulations in Western liberal democracies from today’s context and with an ‘outside’ world perspective beyond the traditional geographies of migration studies allows us to conclude that Western liberal democracies are indeed unique but in a much more complex and multi-­directional way than what has been pointed out by the literature so far. It is undeniable that rights-­based politics in liberal democracies accounted for the relaxing of residence rules in the second hand of the twentieth century and the expansion of foreigners’ rights to family reunification. Rights-­based politics account as well for more recent policy shifts, such as the adoption of anti-­discrimination legislation across Europe or the liberalisation of citizenship laws, even in very restrictive countries such as Germany. However, we cannot conclude that liberal politics automatically translate into liberal policies. Recent publications highlight that democratic countries have had much more exclusionary immigration policies than some of their contemporary authoritarian regimes and, the other way around, that non-­ Western democracies and even authoritarian regimes may end up having much more liberal policies on entry and stay. What the literature so far has shown is that numbers – i.e. immigrants’ entry – are always high if there is an economic demand. This leads us to two considerations. First, the gap between restrictive immigration policies and open outcomes is not necessarily a policy failure but a policy in itself. As I have argued elsewhere (Garcés-Mascareñas 2013) following Boswell (2007: 93–95), contradictions and inefficiencies in policies may be a way for states to respond simultaneously to contradictory demands in the field of migration policies. In Southern European countries, irregular immigration and subsequent and repetitive regularisations have been a way to respond simultaneously to demands for immigrant labour and demands for a restrictionist policy and rhetoric. Second, the economics of migration, rather than the politics of migration, is what matters when regulating (formally or informally, a priori or a posteriori) labour migration flows. Where politics does seem to make a difference for policies is when we look at the nature of the immigration policymaking and the degree of restriction imposed on those already in the country. The less democratic states are, the less they seem to be constrained not only by liberal constitutions and independent judiciaries but also by different interest groups, public opinion and electoral politics. However, it would be wrong to conclude that autocratic states have a free hand. Contradictory demands within the state apparatus, different policy interests by domestic and international actors and incoherencies and discrepancies between policy discourse and policy practice are common there too. Probably because these trends are a feature of policymaking in general and immigration policies in particular. In terms of rights of those already in the country, liberal democracies are indeed much more constrained than non-­liberal democracies as bans on entry for particular nationalities, arbitrary detention and deportation campaigns or important restrictions to family reunification rights have had their own (legal, political and moral) limits. 57

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However, liberal democracies may also impose strict limits to immigrants’ rights. This is particularly clear at the border and beyond. There, securitisation arguments are given priority over immigrants’ rights. But within the national territory restrictions on immigrants’ rights are also becoming more and more common. First, the so-­called ‘fight against irregular migration’ has led to the increasing detention, deportation and exclusion of irregular immigrants. Here discourses on national sovereignty and the ‘need’ to protect citizenship rights and privileges justify spaces of exception where those rights that – as we said at the beginning – are bestowed on individuals qua persons rather than qua citizens are not always granted. Second, as we have also seen, new boundaries are being set up on the basis of principles and values. Here the alleged need to preserve ‘Western civilisation’ often serves to justify the increasing use of liberal values for exclusionary (often illiberal) purposes. This crusade in the name of values is probably a unique feature of liberal democracies too.

References Acosta Arcarazo, D. and L. Feline Freier. (2015), ‘Turning the immigration policy paradox upside down? Populist liberalism and discursive gaps in South America’. International Migration Review 49 (3): 659–696. Adamson, F. B., T. Triadafilopoulos and A. R. Zolberg. (2011), ‘The limits of the liberal state: Migration, identity and belonging in Europe’. Journal of Ethnic and Migration Studies 37 (6): 843–859. Agamben, G. (1998), Homo sacer: Sovereign power and bare life. Stanford: Stanford University Press. Arango, J. (2003), ‘Dificultades y dilemas de las políticas de inmigración’, Circunstancia. Revista de Ciencias Sociales del IUIOG 1 (2): 3–7. Arendt, H. (2013), The human condition. Chicago: University of Chicago Press. Bader, V. (2005), ‘The ethics of immigration’, Constellations 12 (3): 331–360. Balibar, E. (2005), Europe constitution frontière. Bègles: Editions du Passant. Bigo, D. (2002), ‘Security and immigration: Toward a critique of the governmentality of unease’, Alternatives 27 (1): 63–92. Bonjour, S. (2011), ‘The power and morals of policy makers: Reassessing the control gap debate’, International Migration Review 45 (1): 89–122. Bonjour, S. (2016), ‘Speaking of rights: The influence of law and courts on the making of family migration policies in Germany’, Law & Policy 38 (4): 328–348. Boswell, C. (2007), ‘Theorizing migration policy: Is there a third way?’, International Migration Review 41 (1): 75–100. Brubaker, R. (1995), ‘Comments on “modes of immigration politics in liberal democratic states” ’, International Migration Review 29 (4): 903–908. Castles, S. (2004), ‘Why migration policies fail”, Ethnic and Racial Studies 27 (2): 205–227. Chauvin, S., and B. Garcés-Mascareñas. (2012), ‘Beyond informal citizenship: The new moral economy of migrant illegality’, International Political Sociology 6 (3): 241–259. Cook-­Martín, D. and D. FitzGerald. (2014), Culling the masses: The democratic origins of racist immigration policy in the Americas. Harvard: Harvard University Press. Cornelius, W. A. and T. Tsuda. (2004), ‘Controlling immigration: The limits of government intervention’, in W. A. Cornelius, P. Martin and J. Hollifield (eds), Controlling immigration: A global perspective. Stanford: Stanford University Press, 3–48. De Genova, N., S. Mezzadra and J. Pickles. (2014), ‘New keywords: Migration and borders’, Cultural Studies 29 (1): 55–87. Doomernik, J. and M. Bruquetas-­Callejo. (2016), ‘National immigration and integration policies in Europe since 1973’, in Garcés-Mascareñas, B. and R. Penninx (eds), Integration Processes and Policies in Europe. Cham: Springer International, 57–76. Freeman, G. P. (1995), ‘Modes of immigration politics in liberal democratic states’, International Migration Review 29 (4): 881–902. Garcés-Mascareñas, B. (2012), Labour migration in Malaysia and Spain. Markets, citizenship and rights. Amsterdam: Amsterdam University Press. Garcés-Mascareñas, B. (2013), ‘Reconsidering the “policy gap”: policy implementation and outcomes in Spain’, GRITIM Working Paper, Barcelona.

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Beyond methodological Western-centrism Garcés-Mascareñas, B. (2015), ‘Revisiting bordering practices: Irregular migration, borders, and citizenship in Malaysia’, International Political Sociology 9 (2): 128–142. Guild, E., K. Groenendijk and S. Carrera. (2009), ‘Illiberal liberal states’, Immigration, Citizenship and Integration in the EU 8. Guiraudon, V. (1998), ‘Citizenship rights for non-­citizens: France, Germany and the Netherlands’, in C. Joppke (ed.), Challenge to the nation-­state: Immigration in Western Europe and the United States. New York: Oxford University Press, 272–318. Guiraudon, V. (2000), ‘The Marshallian triptych reordered: The role of courts and bureaucracies in furthering migrants’ social rights’, in M. Bommes and A. Geddes (eds), Immigration and welfare: Challenging the borders of the welfare state. London: Routledge, 72–89. Guiraudon, V. (2002), ‘The constitution of a European immigration policy domain: A political sociology approach’, Journal of European Public Policy 10 (2): 263–282. Hollifield, J. (1992), Immigrants, markets and states: The political economy of postwar Europe. Cambridge: Harvard University Press. Hollifield, J. (2000), ‘The politics of international migration: How can we bring the state back in?’, in C. B. Brettell and J. F. Hollifield (eds), Migration theory: Talking across disciplines. New York: Routledge, 132–160. Hollifield, J. (2005), ‘The emerging migration state’, in I. Toshio and I. Masako (eds), Motion in place/place in motion. JCAS Symposium Series 22. Osaka: The Japan Center for Area Studies, 19–44. Joppke, C. (1998a), Challenge to the nation-­state: Immigration in Western Europe and the United States. New York: Oxford University Press. Joppke, C. (1998b), ‘Why liberal states accept unwanted immigration’, World Politics 50 (2): 266–293. Joppke, C. (2005), ‘Exclusion in the liberal state: The case of immigration and citizenship policy’, European Journal of Social Theory 8 (1): 43–61. Kawar, L. (2015), Contesting immigration policy in court: Legal activism and its radiating effects in the United States and France. Cambridge: Cambridge University Press. Koopmans, R. and I. Michalowski. (2017), ‘Why do states extend rights to immigrants? Institutional settings and historical legacies across 44 countries worldwide’, Comparative Political Studies 50 (1): 41–74. Lemberg-­Pedersen, M. (2011), ‘Solidarity (In) action?’ Politik 14 (4), 27–34. Mezzadra, S. (2005), Derecho de fuga. Migraciones, ciudadanía y globalización. Madrid: Traficantes de Sueños. Mezzadra, S. and B. Neilson. (2013), Border as method, or, the multiplication of labor. Durham and London: Duke University Press. Natter, K. (2017), Immigration policy theory. Thinking beyond the ‘Western liberal-­democratic’ box. Paper presented at the Annual IMISCOE Conference, Erasmus University Rotterdam. Ruhs, M. (2013), The price of rights: Regulating international labor migration. Princeton: Princeton University Press. Ruhs, M. and P. Martin. (2008), ‘Numbers vs. rights: Trade-­offs and guest worker programs’, International Migration Review 42 (1): 249–265. Salter, M. (2004), ‘Passports, mobility, and security: How smart can the border be?, International Studies Perspectives, 5 (1),71–91. Sassen, S. (1991), The global city. Oxford: Princeton University Press. Sassen, S. (1996), Losing control? Sovereignty in an age of globalisation. New York: Columbia University Press. Sassen, S. (2002), ‘Towards post-­national and denationalized citizenship’, in E. F. Isin and B. S. Turner (eds), Handbook of citizenship studies. London: Sage, 277–293. Schmid, S.D. (2016), ‘Democracy, open borders, and the rights of immigrant workers’, paper presented at the 13th IMISCOE Annual Conference Prague, 30 June–2 July.  Spijkerboer, T. (2007), The human costs of border control. European Journal of Migration and Law 9 (1): 127–139. Soysal, Y. (1994), Limits of citizenship: Migrants and postnational membership in Europe. Chicago: University of Chicago Press. Thiollet, H. (2016), ‘Managing migrant labour in the Gulf: Transnational dynamics of migration politics since the 1930s’. In: https://hal.archives-ouvertes.fr/hal-01346366/document. Last accessed: 15 April 2018. Triadafilopoulos, T. (2011), ‘Illiberal means to liberal ends? Understanding recent immigrant integration policies in Europe’, Journal of Ethnic and migration Studies 37 (6): 861–880. Walters, W. (2006), ‘Border/control’, European Journal of Social Theory, 9 (2), 187–203. Wimmer, A. and N. Glick Schiller. (2003), ‘Methodological nationalism, the social sciences, and the study of migration: An essay in historical epistemology’, International Migration Review 37 (3): 576–610.

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5 IMPLEMENTING Migration policies New research puzzles in a Europeanizing context Nora Dörrenbächer and Tineke Strik

Introduction Laws and policies often lead to more diverse outcomes than formal statutes suggest (Pressman and Wildavsky, 1974). An ever-­growing field of implementation research tries to account for this variation (for reviews see Sabatier, 1986: Pülzl and Treib, 2007). Implementation can broadly be defined as the connection between the expression of governmental intentions and the actual results of legislation (O’Toole, 1995, p. 43). Several complications may arise during implementation, related to the characteristics of implementers and the policies they apply (Pressman and Wildavsky, 1974). As these complications resemble obstacles encountered in the process of policy formation, implementation is commonly understood as the ‘continuation of policy-­making by other means’ (Lineberry, 1977, p. 71). In the field of migration, implementation is particularly challenging. Implementers deal with complex multilevel regulatory frameworks and constantly changing migration patterns (Jordan et al., 2003; Ellermann, 2005). Migration offices are confronted with diverse demands from clients, limited resources and conflicting societal norms when they decide on cases as diverse as asylum (Mascini, 2008), family reunification (Eggebø, 2012) or labour migration (Cyrus and Vogel, 2003). Moreover, migration policies that appear clear on paper often turn out to be quite ambiguous in practice (Jordan et al., 2003). In this light, Mountz (2010) illustrated succinctly that it is the study of daily practices of migration law that can explain migration policy outcome, reveal inconsistencies in states’ narratives, and, thus, facilitate policy interventions (see also Andersson, 2014; Wunderlich, 2012; Dauvergne and Ellermann, 2013). As it is complicated to measure to what extent policies are applied in practice (de Haas and Czaika, 2013) research into implementation is resource intensive. It requires data that captures bureaucratic and political contexts, attitudes and actual decision making. The difficulty of data collection may be the reason why researchers have devoted more attention to migration policy formation than to its implementation. Only recently has the process through which policies reach the intended recipients received broader scholarly attention. The first migration studies that opened the black box of policy implementation derive from the Amer­ican context (Gilboy, 1991). However, studies from sociology (of law) and political science increasingly also cover European countries (e.g. Düvell and Jordan, 2003; Ellermann, 2005; Eule 2014; van der Woude and Brouwer, 2017). This literature relies primarily on single-­country 60

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studies and emphasizes the individual-­level dilemmas of frontline implementers between law and practice. Particularities of the European context, such as the growing Europeanization of migration laws (Kaunert and Léonard, 2012; Genschel and Jachtenfuchs, 2016; Zaun, 2016) received only little scholarly attention. This chapter argues that Europeanization may have important implications for the implementation process and the discretionary room of national immigration authorities. First, European Union (EU) law adds another legal level and ‘clearance points’ to the implementation chain (Pressman and Wildavsky, 1974; Treib, 2014). Second, the Court of Justice of the European Union (CJEU) increasingly challenges national practices. The European multilevel legal context poses new puzzles for scholars of migration law implementation. Moreover, due to Europeanization, national implementers in different EU Member States are increasingly confronted with similar laws. This offers new research opportunities for cross-­country comparative research that can go beyond individual-­level explanations for implementation practices (Dörrenbächer, 2017b). This chapter starts out by discussing specificities of the field of migration that have been linked to gaps in policy implementation. The next section reviews the state of the art of migration law implementation studies. Subsequently, the chapter zooms into the specifics of the European context. The section continues by discussing the implications of Europeanization for studying implementation. The chapter concludes by presenting a research agenda on the implementation of migration law in Europe.

Complications of implementing migration law According to Ellermann (2005, p. 2), few policy areas reveal an implementation gap comparable to the divergence between immigration laws on the one hand, and their empirical outcomes through practical implementation on the other. Ellermann (2005) points at the divergence between deportations and the amount of undocumented migrants that remain in the country. Others have related implementation gaps to dissimilar administrative treatments of migrants with formally similar characteristics (Mascini, 2008). Several characteristics of the field of migration have been argued to contribute to these gaps. First, migration law is formulated and implemented at multiple levels (Lahav and Guiraudon, 2006, see Adam and Caponio in this volume). Depending on domestic bureaucratic structures, various administrative levels, such as embassies, municipalities, state agencies or private actors, cooperate to regulate and organize legal entry, reception, integration and deportations (van der Leun, 2006; Christensen and Laegreid, 2009). This diversity of actors and varying levels of institutional discretion enhance divergence in the implementation process. Second, migration law implementers handle requests of a highly diverse group of clients such as asylum seekers, EU citizens and third country nationals applying for family reunification, a working permit, citizenship, etc. These diverse grounds for immigration constitute issue linkages to sectors such as healthcare, education, crime and labour market (Givens and Luedtke, 2004; Christensen and Laegreid, 2009). Migration offices that are overburdened by the complexity of the legal field constitute serious risks for consistent implementation. Third, as the sudden increase in the number of refugees in 2015 has shown, the field of migration is highly unpredictable. Migration is affected by international and humanitarian crises, ecological changes and global socio-­economic factors (Christensen and Laegreid, 2009). Consequently, the field is constantly evolving (Jordan et al., 2003, p. 211). In this dynamic setting, insufficient administrative resources, robustness and flexibility may easily delay implementation (Psimmenos and Kassimati, 2003; Christensen and Laegreid, 2009). 61

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Fourth, migration law is highly normatively laden and touches on core state powers and values such as border controls, national culture, identity and security (Genschel and Jachtenfuchs, 2016). The political sensitivity of migration places public actors under close public scrutiny, making them vulnerable to public blame and criticism from a wide range of stakeholders who try to influence the implementation process. Overall, these characteristics of the field of migration make the application and interpretation of migration law challenging for implementers at the frontline between law and practice. Frontline implementers are public workers who carry out and enforce actions required by laws and public policies (Lipsky, 1980; Meyers and Vorsanger, 2003, p. 154). Due to its relevance for the final outcomes of migration law, a growing scholarly interest into the local and practical knowledge and practices of the lowest level of migration law implementation can be observed.

Dilemmas at the frontline of migration law across North America and Europe The interest into the practices at the frontline of migration law implementations derived from the North Amer­ican context. For example, Gilboy (1991) investigated how immigration officers at US airports develop categories to decide which foreigners they investigate and Heyman (1999) studied administrative decision making at the US–Mexican border. Moreover, Weissinger (1996) described the normative structure of the US Immigration and Naturalization Service and how the organization struggles with its double function of controlling and providing services to migrants. In a later study, Magaña (2003) added that the ever-­changing policy mandates from the US Congress and a lack of funding hinder the migration civil servants to fulfil their enforcement and service functions. US studies have also investigated local levels of implementation. For example, Armenta (2012) found diverse role conceptions of deputized immigration officers. More generally, the US-­based literature has paid considerable attention to the multilevel character of US migration law and investigated how local civil servants reshape national migration laws at the city and state level (Wells, 2004; Varsanyi, 2008; Marrow, 2009; Coleman, 2012). Frontline studies also emerged in the Canadian context, where researchers stressed the role of discretion of migration officers (Bouchard and Carroll, 2002). For example Satzewich (2013) studied definitions of ‘normal’ family ties in the contexts of migration and rhetorics around racial profiling of Canadian civil servants (Satzewich and Shaffir, 2009). Beyond the North Amer­ican context, migration implementation studies are increasingly also conducted in European settings. For example, Alpes and Spire (2014) have shown how French consular employees draw on the law as a constraint but also as a resource to handle organizational pressures and to manage their fear of fraud. The authors indicate how the extraordinary discretion in consulates is influenced by implementers’ bureaucratic habitus and belief that they defend the national interest. Düvell and Jordan (2003) have studied role conceptions of caseworkers in the UK Home Office. Their study demonstrates how public servants’ self-­ identification as liberal and just brings them in conflict with some of their duties. Similarly, Hall (2010) demonstrates the importance of emotions in the British detention procedure as important factor for implementation practices. The role of emotions features prominently also in studies on Scandinavian immigration bureaucracies. For example, Eggebø (2012) observed how Norwegian migration officials balance emotion and reason when deciding on family immigration (on Norway see also Hagelund, 2010). Similarly, Graham (2002) and Ottosson et al. (2012) found dilemmas between emotions, organizational pressures and restrictive norms in the Swedish asylum procedure. Across these studies, family migration and bureaucratic evaluations of family ties feature as particularly prominent research topics (see also Pellander, 2015). 62

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In the Netherlands, van der Leun (2006) observed that civil servants whose direct tasks are not connected to migration control are increasingly asked to report undocumented migrants and to deny them services. Her research shows that these implementers often constructed the meaning of compliance with the law themselves, leading to wide discretion and variation in policy outcome.1 Mascini (2008) compared how Dutch caseworkers differ in their asylum decision making. Presenting one of the few quantitative studies in this field, he finds that differences result from work pressure, the caseworkers’ reputation, their role definition, political opinion, professional background, and policy. More recently, van der Woude and Brouwer (2017) uncovered the growing role of technology in Dutch migration control. Moving to the German context, Cyrus and Vogel (2003) have argued that frontline implementers have legalistic and professional attitudes but use discretion in the interpersonal interaction with clients. Such interpersonal interactions are also studied by Eule (2014). He points at oral traditions when discussing how local German migration caseworkers use migration laws. The local level features also prominent in Ellermann’s (2005, 2006) study on local civil servants in the US and their German counterparts. Presenting one of the few cross-­country studies of frontline implementation, she indicates how agency staff struggle with the intention to dutifully implement restrictive migrations policies while at the same time responding to resistance and pressure by pro-­migrant lobby groups that mobilize against their decisions. The research suggests that agencies that are insulated from the influence of elected politicians are better equipped to counter such interference. Finally, there has been some research on migration law implementation in Southern Europe. For example, Psimmenos and Kassimati (2003) examined organizational culture and work values in a Greek welfare office that handles labour migration. Moreover, by comparing two Spanish migration administrations, Bastien (2009) has pointed at the role of goal ambiguities and informal discretion during migration law implementation. Research on the Italian case includes a study by Triandafyllidou (2003) on organizational culture and identity processes during labour migration law implementation. Furthermore, Barberis and Boccagni (2014) highlight the centrality of social workers’ commitment and discretionary power in addressing migrants’ needs in an underinstitutionalized Italian setting. Additionally, Zampagni (2016) investigated to what extent Italian consular officials act similarly to Lipsky’s (1980) street-­level implementers when deciding on Schengen visas. Overall, the discussed studies indicate that throughout Europe scholars have started to acknowledge that policy-­making does not end with the adoption of migration laws. However, the review also indicates that Eastern European countries remain understudied. By way of exception, Düvell (2011) conducted ethnographical research on the Ukrainian border, finding illegal state agents’ practices that encourage continuation of irregular migration despite enhanced border controls. More generally, there is so far hardly any cross-­country comparative research (but see Ellermann, 2005; Infantino, 2016). Instead, scholars have devoted considerable attention to single-­country studies that focus on individual-­level dilemmas and organizational cultures. Compared to the US-­based literature, European studies discussed considerably less explicitly domestic institutional contexts, accountability structures and multilevel characteristics of migration law. In light of Europeanization this gap is interesting because European law confronts domestic implementers with very specific multilevel challenges that deserve more explicit attention.

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Europeanization of regulatory migration frameworks and implications for studying implementation While implementation studies so far paid little attention so far to the Europeanization of migration laws, the establishment of the first generation of European migration directives in the early 2000s has triggered some attention among legal scholars (Odysseus Network, 2007; Pascouau and Labayle, 2011; Strik, 2011). These researchers studied how European law affects national migration laws and how Member States transpose migration directives into their national laws. These transposition studies provide a crucial point of departure to understand the particularities of EU migration law with implications for practical implementation. Especially the transposition of the Family Reunification Directive as one of the most influential European regulatory instruments in the field of legal migration has been studied extensively (Groenendijk et al. 2007; Pascouau and Labayle, 2011; Strik et al., 2013). Generally, these transposition studies have shown that European migration law affects not only the substance of national law but also restricts the level of discretion left to national policy makers (Strik, 2011). Case law by the EU Court of Justice has further limited the discretion of the Member States by imposing strict interpretations of vague EU migration laws (Acosta Arcarazo and Geddes, 2013). This trend has been fuelled since lawyers and judges became acquainted with European Migration Law and started lodging requests for preliminary rulings from the CJEU. In light of the ‘control gap debate’ (Bonjour, 2011; see Garcés-Mascarañas in this volume), these effects support the claim of migration scholars that due to Europeanization policy makers have lost much power to the courts (Acosta Arcarazo and Geddes, 2013; Bonjour and Vink, 2013; Kaunert and Léonard, 2012; but see Bonjour et al., 2018 for debate on this issue). Thus, the field of migration seems to support Kelemen’s (2011) Eurolegalism thesis, that EU law formalizes national law and limits national discretion. Applying theses insights to the practical implementation of European Migration Law, the addition of the European legal level implies at first sight that national implementers are increasingly constrained by European law. In turn policy divergence and implementation gaps may diminish. However, as has been observed in general implementation studies, more rules and regulations do not automatically lead to convergence and limited discretion (Evans and Harris, 2004, p. 871). Severe doubts on the capacity of EU law to fully harmonize implementation practices derive particularly from the EU compliance literature (see Treib, 2014 for review). Despite the growing regulatory effort of the EU, this literature has pointed at considerable gaps regarding the implementation of European obligations. Two broad explanations for non-­compliance with EU obligations emerge from this literature, namely preference-­based explanations and state-­based explanations. Preference-­based approaches assume that veto players, national and party interests trigger Member States to comply with some EU obligations but not with others (Mastenbroek and Kaeding, 2006). By contrast, state-­based explanations assume that Member States have a general tendency with which they approach EU law. For example, Falkner et al. (2007) identified four worlds of EU compliance. In countries belonging to the world of law observance, which broadly include the Nordic EU Member States, countries typically transpose, apply and enforce EU directives timely and correctly. In the world of domestic politics, including among others Germany, the Netherlands and Spain, the transposition of EU law into national law occurs only if the content of EU law is in line with national interests. Once transposed, application and enforcement runs smoothly. States belonging to the world of neglect tend to ignore EU legislation. Falkner et al. (2007) classify France, Greece and Portugal in this world. Finally, Falkner and Treib (2008) 64

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added the world of dead letters to account for the practice of many Eastern European Member States to correctly transpose European directives without ever implementing them in practice. While the typology emerged for social policies, Strik (2011) observed that the typology corresponds well with the way Member States comply with migration directives. However, countries that fall within the world of law observance and domestic politics such as Germany and the Netherlands received considerably more scholarly attention than countries of the other two types. Moreover, studies have devoted more attention to the legal transposition of European obligations and neglected the practical implementation stage. So far, only a handful of very recent studies started to shed some light into the practices of national officials who handle European migration obligations. For example, van der Woude and van der Leun (2017) observed that despite the fact that EU law prohibits migration controls at the internal borders of the Schengen area, practical implementers can circumvent these regulations. More concretely, the authors show how civil servants link crime and migration controls at the Dutch internal borders through discretionarily extending the controls to crimmigration checks (see also Brouwer et al., 2017). Additionally, Infantino (2016) provides ethnographic insights on frontline implementation of EU visa policy. She compares the consulates of Belgium, France and Italy in Casablanca and finds that on the ground, EU visa policies are state-­bound and dependent on the historical roots of the bi-­lateral relations between the Schengen countries and Morocco. This finding leads Infantino to question whether Europeanization of visa policies implies diminishing cross-­ national differences in day-­to-day implementation. These findings correspond with a recent study by Dörrenbächer (2017a). She shows that while EU law may limit the discretion of national policy makers, EU migration law often also includes fuzzy legal concepts that offer migration law implementers new discretion. Discretion emerges out of controversy in Council negotiations (Zaun, 2016) and vague transposition at the national level (Dörrenbächer and Mastenbroek, 2017). This turns national migration law implementers into EU policy makers who are forced to fill discretionary EU law with meaning on the ground. Additionally, Dörrenbächer (2017a) shows that while the CJEU restricts the discretion of Member States, the rulings may create new room for manoeuvre for lower level implementers. For example, in Chakroun (C-­578/08) the CJEU demands more individual-­level assessments by practical migration law implementers than the national statutes of some of the Member States prescribe or even allow. In its subsequent judgements (K. and A, C-­153/14; Khachab, C-­558/14), the CJEU has confirmed this obligation demanding again greater discretion from lower level implementers. By requiring a proportionality test, taking into account all individual interests and circumstances of each migrant, the CJEU obliged Member States with a highly centralized and computerized administrative decision-­making system to relax their discretion-­constrained implementation procedures. Finally, new discretion emerges as an unintended consequence of EU law. For example, when EU migration laws are transposed in a noncompliant way, implementers need to decide if they rely on national or European guidelines. Dörrenbächer (2017a) finds such situations in German local migration offices where national caseworkers decide on the basis of their implementation motivations to follow national or European legal requirements. In a comparative study between German and Dutch migration officials Dörrenbächer (2017b) shows that beyond personal motivations, the decision to rely on original EU migration law is also a matter of national bureaucratic structures. Overall, there are still only few studies that discuss the impact of Europeanization on migration law implementation. However, the few studies that emerged recently indicate that despite 65

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the formalization of migration laws in Europe, discretion and divergence in migration law implementation still persist and the multilevel European context may even lead to new legal ambiguities and puzzles at the frontline of implementation.

Conclusions: avenues for future research This chapter reviewed the state of the art of migration law implementation studies in Europe. The review showed that scholars from a variety of disciplines started to go beyond policy formulation to pay more attention to those actors who apply migration law on the ground in migration agencies, embassies, consulates and alien police offices (e.g. Cyrus and Vogel, 2003; Jordan et al., 2003; Ellermann, 2006; Eule, 2014; Eggebø, 2012; Infantino, 2016). These studies provide impressive insights into the struggles of individual migration officials and the complications of bureaucratic discretion in the field of migration. However, these studies have so far largely neglected the particularities of the European context of migration law implementation despite the fact that Europeanization of migration laws increasingly affects national regulatory frameworks (Boswell and Geddes, 2011; Block and Bonjour, 2013; Zaun, 2016). Beyond the substantive effects, EU law and its subsequent case law increasingly diminish the discretion of national policy makers (Strik, 2011). For migration law implementation studies, this raises new puzzles such as to what extent discretion remains for national migration officials, to what extent implementation practices converge and which effect Europeanization has on alleged implementation gaps. The general EU compliance literature (Treib, 2014) and a handful of very recent studies on practical implementation of European migration law suggest that EU migration law sustains or even increases the level of discretion for national migration administrators (Brouwer et al., 2017; Dörrenbächer, 2017a; van der Woude and van der Leun, 2017). Thus, divergence in the implementation phase and implementation gaps are likely to persist. In order to investigate this claim further, we need more cross-­country comparative studies on the implementation of migration laws in Europe. The EU context provides particularly good conditions to go beyond single-­country studies because EU law increasingly confronts national implementers with the same legal stimuli. To fruitfully apply cross-­county comparisons, scholars need to extend their analysis of individual frontline variation to pay more attention to national institutional context. For example, the level of discretion left by institutional structures, the authorities to which implementers are accountable or feel loyal to and the level of client contact they have in their daily implementations tasks may affect how common European legislation is applied across countries. Standard public administration theories may provide a useful point of departure to integrate such aspects (see Dörrenbächer, 2017b). Considering migration management as including ‘actors, practices and discourses’, it is also important to simultaneously study state, inter-­governmental and non-­state (implementing) actors (Geiger and Pecoud, 2010), and to build on the concept of ‘implementation dynamics’ (Wunderlich, 2012) which implies the importance of understanding causes of changes in practice. Migration law implementers can be understood as dynamic agents who are not only passively constrained by the structures in which they operate, but who also participate in shaping these structures. Thus, they are not only policy takers, but also policy shapers (Lipsky, 1980). This understanding of implementation as ‘policy assemblage’ consisting of actors, institutions and knowledge are useful structuring tool to study implementation (Feldman, 2011). Generally, these concepts could be explored more closely in migration implementation studies. Another gap in the European research on migration law implementation uncovered in this review is the lack of communication between studies that focus on the legal transposition of 66

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European migration law and studies that examine practical application and enforcement. A way forward would be to encourage more interdisciplinary research between legal and social scientists to combine expertise on the functioning of the law with an interest in the empirical behaviour of implementers. Connected to this, future research on the implementation of European migration law should also broaden its methodological tool kit. For example, a combination of legal methods with social science approaches of in-­depth fieldwork but also quantitative survey or experimental approaches may shed new light on the relation between migration law and empirical behaviour at the frontline of migration law. Next, this chapter has shown that countries are not yet equally explored with regard to their migration law implementation. In particular, there is a lack of research into the Eastern European Member States. These countries are confronted with distinct migration patterns and have historically different approaches towards migration than the older EU Member States. While good empirical data may be even harder to gather in these countries than in other EU Member States, in light of Falkner et al.’s (2007) typology of the world of dead letters it is particularly relevant to examine how these countries apply migration rules on the ground. Finally, implementation research should also follow new tendencies in EU migration policies more generally, such as the increasing externalization of responsibilities to third countries (see Part VII of this Handbook). Studies dealing with cooperation between the EU and partner countries have not only been criticized for their Eurocentrism, but also for their tendency to limit their policy analyses to the supra-­national or national levels (e.g. Dauverge and Ellermann, 2013). This state-­centric and structuralist approach has severe limitations for an understanding of actual outcomes of policy-­making. Extending implementation research to the local level of third countries adds new dimensions to the multilevel implementation context of European migration law. Additional approaches for instance on norm diffusion (Zimmermann, 2016) can shed new light on the influence of national and cultural contexts on implementation practices, both within and outside Europe. Overall, it should be mentioned that migration law is a relatively young field of Europeanization. Thus, it is not surprising that there haven’t been many studies on the practical implementation of common European migration laws. However, in view of the high salience of migration policy, there is an urgent need for further insight in how migration agencies and individual street­level bureaucrats deal with (European) migration rules in such a politicized environment. Closing these gaps is important because without understanding how rules are implemented, we are unable to evaluate to what extent national and European regulatory frameworks work, how they affect individual migrants, and which implications they have for the politics of migration in Europe.

Note 1 For similar conclusions regarding the Swedish case see Björngren Cuadra and Staaf, 2012.

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6 Expertise, governing and migration in Europe Emma Carmel and Hester Kan

Introduction This chapter examines the role of expertise and knowledge in relation to the politics and governance of migration. Knowledge has long been central to the complex processes that define who belongs, and on what terms, in a political community. Contemporary European experiences exemplify this importance. Countries inside and outside the European Union use: data to assign priorities relating to risk about rules of entry; statistical knowledge to extract resources and judge political performance; competing concepts from economics, sociology and legal studies to reshape understandings of who belongs; and they use practical ‘know-­how’ and ‘ways of doing things’ between public authorities, to enact borders and maintain ‘security partnerships’. Indeed, knowledge creation, presentation, recognition and deployment have been key tools for governing migration from the early days of national statehood formation in Europe. Examples include the development of social statistics and censuses, the invention of the passport, and the creation of ethnicised categories of (highly stratified) belonging in projects of imperial expansion. Insofar as migration governance concerns ‘population management’, then, the politics of designating who may move where, stay for how long and with what rights, has always required the generation of knowledge and data about who is counted as ‘the population’, the nation. As shown in other chapters in this Handbook, access to, and the terms of membership in, a political community are shaped by power dynamics between social and political actors, and these dynamics vary over time and place. In this chapter we explore how the production of knowledge – the things we think we know, or claim to know, about migration and migrants – is also shaped by such power dynamics. We explore the implications of knowledge production for the politics and governance of migration. The chapter has two framing perspectives. The first is that knowledge is not given, or ‘out in the world’, waiting to be discovered. Rather, ideas about what counts as knowledge are part of what is contested in migration politics, and directly shape the ‘conditions of possibility’ for governing (Dean 1999, p.  4; Fischer 2003; Shore 2006). Analysing the politics of migration involves attending as much to how knowledge is produced, as to how it is used or contested (Walters 2006; Kuus 2014; Carmel 2016). The second framing perspective concerns the transnational politics of migration. Transnational governance and politics matters for migrants and migration, and the production of knowledge is an especially important aspect of governing in 71

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such contexts. As such, we do not treat the European Union (EU) or United Nations High Commissioner for Refugees (���������������������������������������������������������������� UNHCR), for example, as separate from, or at a different policymaking ‘level’ to national states, whether those states are members of the EU or not (e.g. Walker 1998; Walters and Haahr 2005; Ebbinghaus 2006). Rather we explore these institutions as part of a wider and more fluid political landscape for migration governance. Diverse ‘conditions of possibility’ for how migration and migrants can be governed are available across this fluid landscape. And this landscape is itself understood and produced by political actors’ concepts, knowledge and measurements. Across this fluid landscape, we distinguish between, and problematise, the relationship of two pairs of processes that shape migration governance and politics: • •

how knowledge is produced, and how different forms of knowledge come to be recognised as valid and/or relevant; how these forms of knowledge are deployed in, and how they come to shape the very terms of, political contestation and governance.

We explore how the production, recognition and deployment of knowledge about migration has implications for how migration – and ‘migrants’ – are governed. Contestations of knowledge and expertise are thus placed at the heart of political contestations around migration.

How is knowledge produced and valorised? Counting migrants, enumerating who belongs The most straightforward way of starting our discussion about the role of knowledge in migration politics and governance is to ask: who is a migrant? This deceptively simple question opens a veritable Pandora’s Box of social, economic, statistical and legal forms of knowledge – often with variations by national state or institution – and most of which do not agree on how to define, let alone measure, who is a migrant. Both the Organisation for Economic Cooperation and Development (OECD), which includes non-­European countries, and Eurostat, the EU’s statistical office, each collate nationally produced data on all EU, and some European (but non-­EU) countries. They produce measures of the ‘stock’ of migrants resident in a country. There are two main measures for achieving this, widely acknowledged and applied in global institutions as well as countries outside Europe. The first is to count all non-­citizens. The second is to count everyone who was born in another country. Neither of these proves very satisfactory in practice. They each conflate different experiences. Usually we would refer to a person settled in a new country for more than 12 months as an immigrant, reserving the term ‘migrant’ for someone who moved more recently. But sometimes a person must be settled much longer before being legally considered an ‘immigrant’. Counting all non-­citizens as ‘migrants’ assumes (a) that all non-­citizens are migrants, rather than, say, ‘immigrants’ whose permanent residence may be decades long, or people who were born in the country and never moved, but due to citizenship regulations cannot naturalise. It also assumes (b) that being a citizen excludes the possibility of having been a migrant, rather than, say, being naturalised, or having experienced periods of residence abroad. On the other hand, counting as a ‘migrant’ all those who were born in another country may include, again, many long term-­resident ‘immigrants’ and even national citizens. Countries with relatively straightforward naturalisation procedures may want to ‘count’ the mobile (migrants) and the settled (immigrants) differently from those countries where access to citizenship is exclusive and difficult. This is because such legal differences shape the meaning and interpretation of these two 72

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ways of counting ‘migrants’, especially where the children and even grandchildren of non-­ nationals are unable to be naturalised citizens. In addition, for countries, mostly in Europe’s East and South-­East, with experience of sizeable national minorities (e.g. Hungary, Estonia, Russia, Greece, Macedonia and other Balkan states), distinctions by either citizenship or place of birth have very different connotations than in those countries with historical experience of imperial rule, mostly in the West and North-­West (e.g. Belgium, France, Portugal, the Netherlands, the UK). These two ways of ‘counting migrants’ each demarcate a way of ‘knowing’ who is ‘in’ the political community, and who is not. In one, it is national citizenship that designates belonging; in the other, it is (presumed) mobility or lack of it; a belonging premised on individuals’ rootedness to place. As we will see below, these different demarcations of belonging also rest on, and reproduce, stratified conceptual categories about ‘types’ of migrants that are central to how migration is governed nationally and transnationally in Europe. However, there are also other statistical refinements that vary between countries. These refinements do not enhance our understanding of ‘levels’, ‘flows’ or patterns of migration, because they are often incommensurable between countries, and cannot be compared. Different definitions have significant consequences for what data is produced and how it can be used, both in terms of counting migrants and in shaping policies (Migration Observatory, 2015). However, they do shed light on how migration is governed and contested in different countries, because they show us how migration is conceptualised, and how these conceptualisations intersect with (politicised) categorisations of religion and ethnicity (e.g. Vollmer 2011; Simon 2012; Brubaker 2013). In Germany the category of ‘having an immigrant background’ includes individuals who may never have migrated, but whose parents were ‘migrants’. The definition and measurement of migrant identity as a so-­called ‘second generation’ immigrant (the term frequently used in English-­language literature) problematises their status as a member of the political community by their familial lineage, even with German citizenship. In Greece, as in some other East European states, the historical importance of using religion to distinguish between resident majority and minority national populations has resulted in such identifications being used to make the status of migrant/non-­migrant visible, too. Despite the similar importance of their colonial histories in shaping migration in France and the UK, in France, the Republican state tradition prevents the ‘counting’ of residents of France by ethnicised or religious characteristics. By contrast, ever more elaborated ethno-­nationalist distinctions have been used to count and monitor post-­colonial minority ethnic communities in the UK. Nonetheless, relatively straightforward access to the UK labour market between the 1940s and 1970s for so-­ called ‘Commonwealth’ immigrants, combined with relatively straightforward naturalisation procedures, mean that for 40 years or more such minority ethnic communities would not be considered ‘migrant’. As a result, such communities were excluded, discriminated against, and governed, by reference to racialised categories of belonging, rather than mobility. It is only since 2011 that the UK the national census has included questions on migrants directly in relation to their mobility and national backgrounds, even though it is questionable whether this produces reliable data, due to the nature of the questions posed (Duke-­Williams 2011). The question of ‘who is a migrant?’ then, cannot be answered by refining ever more ‘accurate’ definitions and measurements of migrants and their movements. Rather the answer to the question ‘who is a migrant?’ turns on understanding that such definitions and measurements are historically, socially and politically contingent. The knowledge or evidence we produce about migration plays a vital part in generating possibilities for political and policy action to shape entry conditions, identify ‘risk’, exclude ‘outsiders’. Doing this, however, requires an additional step in knowledge production – to categorise migrants. 73

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Categorising migrants for selection Across the globe, the key defining categorisation of migrants – shaping understanding of the drivers for mobility, experiences of mobility, and political challenges – is between ‘forced migrant’ and ‘voluntary’ or (sometimes) ‘economic’ migrant. From a sociological perspective, this distinction is false and analytically unhelpful (why for example, is someone whose land has been confiscated by a new mining concession, an economic, rather than a forced migrant?). However, it remains a potent distinction in politics and governance. This has both political and legal origins. Politically, countries of destination prefer to categorise and count migrants as ‘voluntary’ or ‘economic’. Doing so provides a rationale for selectivity in entry, stay and work, and this is reflected in historical patterns of migration governance. For example, ‘economic migrants’ (often post-­colonial) and ‘guest workers’, usually from Southern and South-­Eastern Europe, were encouraged to emigrate and settle, contributing to the economic development of the war­ravaged North-­Western European states from the 1950s, and in Central-­Eastern Europe from the 1960s. This was despite the even higher need for economic development in former colonies, and in the Southern and South-­Eastern states of Europe. The subsequent economic crisis of the early 1970s led to the abandonment of guest-­worker schemes in North-­Western Europe, and high restrictions on most forms of migration, with (limited) family reunification becoming the main route of entry. Such categorisation strategies directly shape, and emerge from, the fluid transnational governance of migration. For example, in Polish political discourse, Ukrainian ‘migrants’ have been framed as legitimate/welcome, but were also equivalised with ‘refugees’ from middle-­East and North Africa (MENA), despite being mostly workers. There are estimated to be over 1.3 million temporary workers from the Ukraine resident in Poland (Financial Times, 27 May 2017; Fomina 2017), filling jobs in labour market sectors that were in difficulty following earlier Polish emigration to Western Europe. Meanwhile, the EU’s refugee dispersal regime is politically contested in its entirety, and/or by claiming the right to select only ‘Christian’ refugees from the MENA region. The overall refusal to accept refugees in any meaningful numbers is the subject of an EU Commission case against Poland, the Czech Republic and Hungary in the European Court of Justice. Refusing to accommodate MENA-­region refugees for supposedly religious reasons also demonstrates the ethnicised character of such categorisations. It is in such shifting legal categorisations of, and presumed ‘knowledge’ about, migrants, that the power and economic imbalances between states of Europe, and across the globe, are used to pursue political goals at the expense of some ‘categories’ of migrant, and of other societies. Since the 1990s, changes in the global economy and political conflicts, and shifting political and economic priorities among destination European states, have led to increasing emphasis on using legal categories of migrant for political purposes, such as ‘asylum seekers’, ‘refugees’ and so-­called ‘illegal or irregular migrants’ with various subcategories of illegality. The ‘irregular’ status can be produced when migrants enter legally on a tourist visa and overstay; cross state borders without appropriate authorisation and documentation; are legally resident but find employment in the underground/informal economy; when administrative acts tighten immigration regulations. Thus biographies of mobility and settlement intersect with migration governance to consign people to ‘illegality’ (e.g. Sigona 2012; de Genova 2012). Meanwhile, both categorising and counting ‘irregular’ migrants is difficult using standard data collection methods (Vogel et al. 2011; Triandafyllidou 2016). Yet such categorisation efforts presume that we can grasp a ‘known reality’ about migrants, who need to be ‘counted’, in order to be ‘governed’, and selected for entry or expelled. 74

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Thus, our ‘knowledge’ about migration and migrants is shaped by changing circumstances (e.g. increases in ‘forced migrants’ from particular places) and by political priorities (e.g. changing ideas about the ‘need’ for migrant labour). It also shapes our identification of policy problems, which leads us to the second rationale for the distinction between forced and voluntary migrants. Legally, the distinction is underpinned by UN Convention on the Rights of the Refugee and associated international law. In the Convention itself, refugee status is rather narrowly defined as those who have a ‘well-­founded fear of persecution’. Growth in numbers of forced migrants from the 1970s onwards led scholars and migrants rights activists to argue for a wider understanding of ‘forced migration’ (e.g. Crisp 1999; Zetter 2007) to better reflect the experiences of many mobile people, and to argue for political action to meet their needs. At the same time, the distinction provides the basis for political action – whether governments seeking to exclude ‘voluntary migrants’, or activists seeking to gain rights and support for migrants categorised as ‘forced’. This is not to say that migrants are ‘forced’, ‘voluntary’ or ‘economic’, but that they must often declare one status or another in the process of their mobility, in order to meet (often incommensurate) rules on entry, stay and work. It is research on the experience of Mexican Amer­icans that first showed how whimsical and contradictory categories of entry and statistical measurement appear when they intersect with individuals’ national, family, social and economic status from their places of origin (e.g. de Genova 2013). But this experience is shared in Europe and elsewhere. We need forms and sources of knowledge about migrants that are not only shaped by existing policy definitions and conceptual categories. Bakewell (2008), for example, calls for ‘policy-­irrelevant’ research; research that deliberately ignores, interrogates and disrupts concepts and understandings that are based on conventional policy and legal categorisations. In addition, in the EU there is another binary distinction – between EU ‘mobile citizens’ (‘free movers’) and ‘third country national migrants’. There are a number of African free trade areas that make a similar categorisation, but across the globe, it is in the EU and select non-­ member states that this distinction is uniquely elaborated (Carmel and Paul 2013; Recchi 2015). Exploring this distinction also illuminates the ‘blind spots’ in understanding that are produced when we use categories as if they describe empirical reality, rather than interrogating how and why they were produced. To illustrate how conceptual categories are produced by governance processes, and themselves produce ‘conditions of possibility’ for political action, we can focus on this in more detail. The reliance on the EU citizen/non-­EU citizen legal category as a category of knowledge (that is, using this categorisation to draw distinctions between real people and their lives and experiences) pushes to the background some uncomfortable forms of knowledge about what it means to belong to an EU member state (or not). First, it underplays the profound inequalities among EU citizens that underpin the dynamics and patterns of intra-­EU migration. These dynamics are directly shaped by socio-­economic inequalities between member states (North– South and East–West), and the emergence of precarious labour market sectors in (North-­ Western) destination countries that rely on EU as well as non-­EU migrant labour (Berggren et al. 2007; Paul 2013; Carmel 2014). Not all EU citizens have equal chances to stay or to move. Second, by reserving terms of trafficking, slavery and irregular migration for ‘third country nationals’, it makes shared conditions of exploitation more difficult to identify and intervene in. Third, it underplays the connection between EU member states and their non-­EU neighbours. The changing routes and risks of migration across the Mediterranean and land borders are directly shaped by the geo-­politics of longstanding historical ties, colonialism, interventions and deals between EU and non-­EU states (Hansen and Jonsson 2014; de Genova 2016). Fourth, it 75

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underplays the diversity among ‘third country nationals’ migration to the EU and reduces our knowledge of the ways in which inequalities between third country national residents are (re)produced in policies for entry, stay and residence. These include privileging some forms of migrants’ knowledge over others (e.g. Kofman 2013). The social and political consequences of national projects of economic competitiveness, pursuing highly skilled non-­EU labour in EU, are rendered less visible by these legal categorisations.

Governing migration through ‘knowledge’: from digital data to practical ‘know-­how’ Thus far in this chapter we have focused on rather ‘fixed’ and conventional understandings about what counts as knowledge in relation to migration – how states count and categorise migrants, and how the concepts we use can shape possibilities for political action (and thus migration governance). There are more direct ways in which ‘knowledge’ is used to directly govern migrants. We can enrich our conceptualisation of the role of knowledge in migration governance and politics by treating knowledge as both produced and practiced. It is not a thing to be supplied or (only) a resource to be used: producing knowledge itself produces the political conditions and possibilities for political action. It further produces, by imagining, and measuring them, the categories of social subject and spaces that are to be acted on (Foucault 2007; De Genova 2013). The most unambiguous example of this role of knowledge is in border control, where practices of knowledge generation and deployment work together to directly create statuses of ‘illegality’ and irregularity. The different forms of knowledge produced in practices of border control contribute to sustaining norms about who belongs, when, where and under what conditions. They do so in different ways, but each is related to ideas about the migration-­security ‘nexus’ (Huysmans 2000; Neal 2009). Walters, writing primarily about the US, argues that when migration governance is linked to territorial security, it becomes about a risk-­oriented knowledge focused upon systematic affinities between certain forms of immigration, terrorism, organised crime, drugs and smuggling … illegal immigration itself becomes one more form of risky mobility. (Walters 2008, p. 170) The kinds of ‘knowledge’ that govern this ‘risky mobility’ depend on, and reproduce, expectations of threat and risk from migrants. They are associated with the use of new forms and technologies of ‘biopower’ (the power asserted through the production of knowledge about bodies, in this case, as they move). Technologies of biopower can include older technologies like human observation, and x-­rays, but also iris scans, biometric data in passports, and the use of digital scanners at borders (Amoore and Hall 2009). As the capacity of computers increases, even biopower is being superceded, or at least combined, with new forms of knowledge, produced from innovative ways of understanding and using data (Amoore 2011). Louise Amoore (2013) has argued that the digital environment enables governing to be done, not on real bodies (associated with real people in real places), but by generating algorithms that identify patterns of behaviour and characteristics. The identification of particular patterns then trigger governing practices in the physical world (Paul 2017, chapter 18 this volume). Thus your own background (let’s say, choosing to travel on one passport rather than another, having a particular kind of visa, preferring particular kinds of food on aeroplanes, travelling at night) is reduced to bits (bytes) of data, marking a pattern of behaviour. 76

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These bits of data are ‘washed through’ an algorithm to generate both ‘knowledge’ and governance. It is the algorithm (designed by software engineers in other, faraway, usually economically developed, metropolitan places) that produces the ‘knowledge’ to determine whether you should have your luggage searched on arrival, or whether you are a suspect migrant. As Regine Paul (2017) argues, the risk calculus on which such algorithms rest are not technical pieces of data. The calculus contains highly political, normatively laden assumptions about what is suspicious or dangerous. However, by inserting the risk calculus into surveillance algorithms, the possibilities for contesting those assumptions recede when faced with the relentless automatism of the algorithm. As a result, the personal and social contexts that result in particular decisions – those characteristics that mark a person’s self-­hood – are no longer relevant to how a person is to be governed in the border-­space. Similar ‘disembodiment’ of data can also be observed in ‘real-­time’ surveillance in the Mediterranean, where it is not migrants, but patterns of movement of ships, that determine practices of border control (Walters 2016). However, not all spaces of border crossing are so saturated with new forms of knowledge. The regimes of technologies that govern migration in many border spaces – the creation of what de Genova (2013) calls the ‘Border Spectacle’ – include many rather more mundane, everyday, physical encounters. These include co-­operation between police forces between Spain and Morocco in tracking down smugglers in joint raids; the hauling-­in of migrants from stranded boats to rescue ships; the dependence of migrants on the skill of a pilot in a storm; the sharing of knowledge about routes, or where a fence can be cut (e.g. Andersson 2014). The politics and governance of migration is shaped by the multiple (sometimes partial) knowledge of those to be governed and of those doing the ‘governing’ on the ground (Sigona 2012, 2014).

How is knowledge deployed and realised? So far, we have examined both formal aspects of knowledge production, and informal aspects of knowledge practices shaping the possibilities of governance. In this section we address how knowledge can circulate to shape migration politics and policymaking.

Knowledge as a claim to authority in EU migration governance Knowledge claims, when framed by specific policy actors as expertise and ‘information supply’, can be deployed to legitimise claims to authority and to govern. In doing so, they can shape policy processes and reforms (Boswell 2008). How successful such claims of expertise and authority are, depend on the more general conditions of ‘information supply’ and contestability in different policy domains (ibid.: 2012, 2015). As we saw earlier in the chapter, contestability of concepts, categories and knowledge are central to the politics and governance of migration. This contestability is compounded in the fluid political landscapes of transnational migration governance that slip, sometimes unpredictably, between national, EU and global regulation (Carmel 2013; Korneev 2015). For those European states that are member states of the EU, this contestability has distinctive characteristics and implications. Access to knowledge, including practical knowledge and ‘know-­how’ in policymaking, is frequently used as a bargaining tool by the Commission against member states (Boswell 2008; Gornitzka and Sverdrup 2011; Robert 2012; Böhling 2014). Chou and Riddervold (2015) demonstrate that the Commission got a foot in bi-­lateral national mobility partnership negotiations with non-­member states by deploying its expertise-­by-experience and its organisational skills in developing such partnerships. Expertise has always been an essential component of EU governance, so this is not unique to migration governance. It is inherent to the role and 77

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l­egitimacy base of the European Commission as a technocratic organisation, whose actions are based on rationalistic decision-­making procedures and the use of expertise (Robert 2012). The Commission presents itself as mediator or ‘honest broker’ between member states and EU institutions, even while it has privileged access to data. This enables it to achieve cross-­national comparative perspectives unavailable to national governments, marking out the weaker position of smaller Eastern European and Southern member states in particular (see Kuus 2014). Knowledge signals the Commission’s conformity to ‘rational’ rules, underpinning the authority of policy-­makers and their decisions. Indeed, it is not just the Commission that makes a claim to authority, or a claim to speak through making claims to ‘know-­how’ and practical knowledge. Private actors and corporations also produce and deploy ‘knowledge’ – as know-­how, or as research, in a political strategy that enables them to claim expertise and to shape governing practices, especially in security and border governance (Feldman 2012). Those corporations that supply hardware and algorithms for digital security governance, for example, are deeply imbricated in how migration and migrants are governed, especially at the border, due to the products they provide, as we saw above (e.g. Paul 2017; Walters 2016). Carmel (2016) shows that since the early 2000s, transnational corporations have deliberately tried to shape the knowledge that is produced in security research, by designing EU research programmes, including those on border security technologies. They have simultaneously structured knowledge production and established the concepts and agendas for governance. But the claim to have authority as an expert, or as a knowledgeable stakeholder, can also be deployed to reveal, or disguise, political agendas and contestation. The claim to ‘impartial’ or ‘rigorous’ knowledge is used as a weapon to assert political agendas – whether for integration or exclusion (see discussion of Migrant Integration Policy Index (MIPEX) in Geddes and Achtnich 2015).

Knowledge as claim to neutrality in EU migration governance The Commission also relies on its access to external ‘expertise’ to shape political and policy agendas (Holst 2014). One such expert group is the European Migration Network (EMN), whose formal role is ‘to provide up-­to-date, objective, reliable, relevant and comparable information in response to identified needs’. Its role is ‘to share good practice and contribute to the development of practical co-­operation in legal migration to overcome identified challenges and barriers’ (Commission of the European Communities 2014, p. 4). Its current form and purpose as knowledge/expertise platform emerged directly from the failings of an explicitly ‘politicised’ predecessor (Boswell 2008). Annual reports are drawn up providing an overview of national policy changes in the field of migration, and member states engage in ad hoc information exchange. However, the network does not operate at a distance from the Commission, which has a strong hand in shaping its agenda and topics for discussion. It also provides funding for the network. This is in line with studies of other expert groups, whose agenda and processes were also actively steered by the Commission (see Dunlop and James 2007; Skjaerseth and Wettestad 2010; Böhling 2014). The designation of the EMN as an ‘expert group’ is technocratic and presents knowledge-­ gathering, production and deployment as neutral contributions to the (also politically neutral) ‘improvement’ of migration governance. This conceals the political nature of knowledge generation and governance processes. It also conceals how responsibility for migration is contested among and within member states. In practice the EMN is rather more an intergovernmental co-­operation network, developing a ‘community of practice’, with common understandings of migration as a policy issue (Geddes and Achnitch, 2015, pp. 304–8), than an expert group. Most members are national civil servants, with some being members of national research councils, and 78

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a few engaging from their national office of the International Organisation of Migration (Commission of the European Communities 2014). Such actors’ claims to expertise, data and knowledge is produced in a highly politicised national context. We know that other similar EU networks are highly politicised, and oriented to shaping policy, with actors driven by their perceived interests, political preferences and national agendas (see Kan 2013). The network’s apparently impartial, evidence-­gathering rationale disguises rather than neutralises its politics. Responsibility for migration policy is contested in this transnational environment, with both member states and the Commission shaping knowledge production and deployment with their own agendas. This has clear implications for the development of policy. Indeed the Commission requested an adaptation of the network to be better suited to the needs of policy-­makers (Commission of the European Communities 2014). The boundaries between expertise as independent advice versus actual decision-­making and policy are explicitly blurred. When the Commission made a decidedly politicised deployment of ‘knowledge’ in its negotiations with member states about the burden sharing of refugees in 2015/16, it was a sign of how intractable the political crisis on this topic had become. Most member states had publicly failed to provide places for refugee applicants in anything like the number decreed necessary by the Commission. In response, the Commission decided to publish the derisory official numbers of people who were actually provided places (fewer than ten for some countries), in an attempt to ‘name and shame’ some member states. This controversial knowledge deployment ironically demonstrated (1) the role of knowledge deployment as a way of defining the terms of political conflict, in this case as being between ‘the member states’ and ‘the Commission’ (and not being about deeply politicised inequalities between member states, for example); and (2) the eventual weakness of the Commission in this highly politicised crisis in EU migration governance, as it was not able to persuade member states to provide more places as a result of this ‘knowledge deployment’.

Conclusion In this chapter, we argued that we need to attend to the conditions under which knowledge of and for migration governance is produced, selected and valorised, and the consequences of such selection processes for policy and politics. The black box of knowledge production about migrants and migration needs to be opened and its relationship to knowledge deployment and the wider politics of migration governance should be interrogated. This perspective leads to a specific analytical focus when exploring the relationship between migration, knowledge and politics. Not ‘what do we know about migrants and migration?’ but rather ‘how is the politics of migration revealed or disguised in the knowledge produced about migrants and their mobility?’ This perspective implies we need empirical explorations of how different political actors come to be seen as experts and holders of knowledge about migration; of how the privileging of particular forms of knowledge (statistical measurement for example) shape how migrants are governed; of how political actors use knowledge and contestations about it in order to achieve their policy and political goals, and above all, of what are the implications of how knowledge is produced and by whom, for migrants themselves.

References Amoore, L. (2011) ‘Data derivatives. On the emergence of a security risk calculus for our times’. Theory, Culture and Society 28(6): 24–43. Amoore, L. (2013) The Politics of Possibility: Risk and Security beyond Probability. Durham, NC, Duke University Press.

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Emma Carmel and Hester Kan Amoore, L. and A. Hall (2009) ‘Taking people apart: digitised dissection and the body at the border’. Environment and Planning D 27(3): 444–64. Andersson, R. (2014) Illegality, Inc. Clandestine Migration and the Business of Bordering Europe. Oakland, CA., University of California Press. Bakewell, O. (2008) ‘Research beyond the categories: the importance of policy irrelevant research into forced migration’. Journal of Refugee Studies 21(4): 432–53. Berggren, E., B. Likic-­Brboric, G. Toksoz and N. Trimikliniotis (2007) Irregular Migration, Informal Labour and Community: A Challenge for Europe. Maastricht, Shaker Publishing. Böhling, K. (2014) ‘Sidelined member states: commission-­learning from experts in the face of comitology’. Journal of European Integration 36(2): 117–34. Boswell, C. (2008) ‘The political functions of expert knowledge: knowledge and legitimation in European Union immigration policy’. Journal of European Public Policy 15(4): 471–88. Boswell, C. (2012) ‘How information scarcity influences the policy agenda: evidence from U.K. immigration policy’. Governance 25(3): 367–89. Boswell, C. (2015) ‘The double life of targets in public policy: disciplining and signalling in UK asylum policy’. Public Administration 93(2): 490–505. Brubaker, R. (2013) ‘Categories of analysis and categories of practice: a note on the study of Muslims in European countries of immigration’. Ethnic and Racial Studies 36(1): 1–8. Carmel, E. (2013) ‘Mobility, migration and rights in the European Union: critical reflections on policy and practice’. Policy Studies 34(2): 238–53. Carmel, E. (2014) ‘With what implications?: an assessment of EU migration governance between Union regulation and national diversity’. Migration Letters 11(2): 137–53. Carmel, E. (2016) ‘Re-­interpreting knowledge, expertise and EU governance: the cases of social policy and security research policy’. Comparative European Politics online first. Carmel, E. and R. Paul (2013) ‘Complex stratification: understanding European Union governance of migrant rights’. Regions and Cohesion 3(3): 56–85. Chou, M. and M. Riddervold (2015) ‘The unexpected negotiator at the table: how the European Commission’s expertise informs intergovernmental EU policies’. Politics and Governance 3(1): 61–72. Commission of the European Communities (2014) Commission Decision on the Adoption of the 2015–2016 Work Programme for the European Migration Network Serving as a Financing Decision for 2015, Brussels, European Commission. Crisp, T. (1999) ‘ “Who has counted the refugees?” UNHCR and the politics of numbers’. New Issues in Refugee Research working paper no. 12. de Genova, N. (2013) ‘Spectacles of migrant “illegality”: the scene of exclusion, the obscene of inclusion’. Ethnic and Racial Studies 36(7): 1180–98. de Genova, N. (2016) The ‘European’ question: migration, race, and post-­coloniality in ‘Europe’, in A. Amelina, B. Meeus and K. Horvath (eds) An Anthology of Migration and Social Transformation. European Perspectives, Heidelberg, Springer: 343–56. Dean, M. (1999) Governmentality. Power and Rule in Modern Society. London, Sage. Duke-­Williams, O. (2011) ‘The role of questions about migration in the UK censuses: A simple matter of counting, or a means of exerting power?’. Geoforum 42(5): 615–23. Dunlop, C. A. and O. James (2007) ‘Principal-­agent modelling and learning: the European Commission, experts and agricultural hormone growth promoters’. Public Policy and Administration 22(4): 403–22. Ebbinghaus, B. (2006) Europe through the looking-­glass: comparative and multi-­level perspectives, in. A. Sica (ed.) Comparative Methods in the Social Sciences, London, Sage. 2: 108–29. Feldman, G. (2012) The Migration Apparatus: Security Labor and Policymaking in the European Union. Stanford, CA: Stanford University Press. Financial Times (2017) ‘Poland weights benefits of surge in migrants from Ukraine’, 28 May. www.ft.com/ content/aeda9ebe-3afa-11e7-ac89-b01cc67cfeec. Last accessed 5 April 2018. Fischer, F. (2003) Reframing Public Policy. Discursive Politics and Deliberative Practices. Oxford, Oxford University Press. Fomina, J. (2017) ‘Economic migration of Ukrainians to the EU: a view from Poland, in Migration and the Ukraine Crisis: A Tow-­country Perspective, E-­IR books. www.e-­ir.info/2017/04/25/economic­migration-of-­ukrainians-to-­the-eu-­a-view-­from-poland/. Last accessed 5 April 2018. Foucault, M. (2007) Security. Territory. Population. Basingstoke, Palgrave Macmillan. Geddes, A. and Achtnich, M. (2015) ‘Research policy fialogues in the European Union’, in P. Scholten, H. Entzinger, R. Penninx and S. Verbeek (eds) Integrating Immigrants in Europe. Springer Open: 293–311.

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Expertise, governing and migration Gornitzka, Å. and U. Sverdrup (2011) ‘Access of experts: information and EU decision-­making’. West European Politics 34(1): 48–70. Hansen, P. and S. Jonsson (2014) Eurafrica. London, Bloomsbury. Holst, C. (2014) Expertise and Democracy. Oslo, ARENA, University of Oslo. Huysmans, J. (2000) ‘The European Union and the securitization of migration’. Journal of Common Market Studies 38(5): 751–77. Kan, H. (2013) The transformation of European governance through networks: institutional innovations but continuation of hierarchies, struggles and contestation, in. J. Garcés and M. Payá (eds) Sustainability and Transformation in European Social Policy, Bern, Peter Lang: 321–40. Kofman, E. (2013) ‘Gendered labour migrations in Europe and emblematic migratory figures’. Journal of Ethnic and Migration Studies 39(4): 579–600. Korneev, O. (2015) Exchanging knowledge, enhancing capacities, developing mechanisms: the role of the IOM in the implementation of the EU–Russia Readmission Agreement, in M. Geiger and A. Pecoud, (eds) International Organisations and the Politics of Migration. London: Routledge. Kuus, M. (2014) Geopolitics and Expertise. Chichester, John Wiley & Sons. Migration Observatory Oxford (2015) ‘Who counts as a Migrant, Definitions and their Consequences’. Briefing Migration Observatory, Oxford: University of Oxford. Neal, A. W. (2009) ‘Securitization and risk at the EU border: the origins of FRONTEX’. Journal of Common Market Studies 47(2): 333–56. Paul, R. (2013) ‘Strategic contextualisation: free movement, labour migration policies and the governance of foreign workers in Europe’. Policy Studies 34(2): 122–41. Paul, R. (2015) The Political Economy of Border-­Drawing. New York, Berghahn. Paul, R. (2017) ‘Harmonization by risk analysis? Frontex and the risk-­based governance of European border control’. Journal of European Integration 39 (6): 689–706. Recchi, E. (2015) Mobile Europe. The Theory and Practice of Free Movement in the EU. Basingstoke, Palgrave Macmillan. Robert, C. (2012) ‘Expert groups in the building of European public policy’. Globalisation, Societies and Education 10(4): 425–38. Shore, C. (2006) ‘ “Government without statehood’? Anthropological perspectives on governance and sovereignty in the European Union’. European Law Journal 12(6): 709–24. Sigona, N. (2012) ‘ “ I have too much baggage”: the impacts of legal status on the social worlds of irregular migrants’. Social Anthropology 20(1): 50–65. Sigona, N. (2014) ‘Campzenship: reimagining the camp as a social and political space’. Citizenship Studies 19(1): 1–15. Simon, P. (2012) ‘Collecting ethnic statistics in Europe: a review’. Ethnic and Racial Studies 35(8): 1366–91. Skjaerseth, J. B. and J. Wettestad (2010) ‘Making the EU emissions trading system: the European Commission as an entrepreneurial epistemic leader’. Global Environmental Change 20(2): 314–21. Triandafyllidou, A., ed. (2016) Irregular Migration in Europe: Myths and Realities. London, Routledge. Vogel, D., V. Kovacheva and H. Prescott (2011) ‘The size of the irregular migrant population in the European Union – counting the uncountable?’ International Migration 49(5): 78–96. Vollmer, B. (2011) ‘Policy discourses on irregular migration in the EU – “numbers games” and “political games” ’. European Journal of Migration & Law 13(3): 317–39. Walker, N. (1998) ‘Sovereignty and differentiated integration in the European Union’. European Law Journal 4(4): 355–88. Walters, W. (2006) ‘Border/control’. European Journal of Social Theory 9(2): 187–203. Walters, W. (2008) Putting the migration-­security complex in its place, in L. Amoore and M. de Goede (eds) Risk and the War on Terror, Oxford, Routledge: 158–77. Walters, W. (2016) ‘Live governance, borders, and the time–space of the situation: EUROSUR and the genealogy of bordering in Europe’. Comparative European Politics online first. Walters, W. and J. H. Haahr (2005) Governing Europe. Discourse, Governmentality and European Integration. London, Routledge. Zetter, R. (2007) ‘More labels, fewer refugees: remaking the refugee label in an era of globalization’. Journal of Refugee Studies 20(2): 172–92.

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7 Media and immigration A political communication perspective Rens Vliegenthart

Introduction Immigration has become one of the most contested political issues in many Western countries. It is fiercely debated among political elites and the general public alike. In this constellation, the role of mass media is widely discussed, both as a bounded arena in which certain actors can put forward claims on the issue, as well as an institution that actively participates and shapes the debate. Due to processes such as gatekeeping and framing, mass media determine to a considerable extent when and what citizens learn about the immigration issue. In this chapter, I focus on the role of the media in the debate on immigration and integration and discuss various perspectives in the literature. The focus will be first of all on the content of media coverage, how it can be analysed and what features seem to be most prominent. Second, it looks at the causes of (variation in) coverage – describing the attempts made by various actors to influence the media debate, as well as more structural factors and journalistic routines that constrain those actors in their attempts. And third, it discusses the consequences of the coverage, both for politics (and policy) as well as public opinion, employing a media effects perspective. As will become clear throughout this chapter, media coverage is clearly an exponent of the cultural context in which it comes about – and effects depend on the (political) context as well. It is thus not surprising that both content and consequences are different in Europe compared to other parts of the world, and most notably the United States, though they differ across Europe a lot as well. While theories on causes, content and consequences of media effects are generic in nature and it might thus be an overstatement to talk about ‘a European perspective’ on immigration and media, we do see that some scientific questions get more attention in the European context than elsewhere. Foremost, the question of what impact media content characteristics have on support for anti-­immigrant parties is often studied in the European context. Furthermore, also the political effects of immigration news (for example in terms of parliamentary response) are relatively well documented in the European context.

A political communication perspective Political communication essentially deals with the interactions between politics, media and the public. It is the communication and behaviour of those three entities that is key in understanding 82

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the evolvement of key political issues in current mediatized societies. A central role can be attributed to mass media: it is the most important source of information for the general public and its opinions, attitudes and (electoral) behaviour is strongly affected by it. And while the rise of the Internet and in particular social media is altering the interactions between politicians, journalists and citizens, traditional media keep playing a key role in opinion formation and political decision making processes. It is not hard to think of examples where images of immigrants in traditional media, either as victims of wars abroad or as rational fortune hunters, have moved public opinion – directly, but also indirectly, by being shared widely on social media. Taking a functional perspective, the role of media can be considered two fold (Van Aelst and Walgrave, 2016): on the one hand, they have an information function, providing other actors with facts, opinions and background stories that affect opinion formation. On the other hand, media can be considered an arena that offers other actors, such as politicians, pressure groups, social movements, experts and ordinary citizens a platform. In both instances, the ‘carrying capacity’ of media is limited (Hilgartner and Bosk, 1988): not every fact and opinion can and will be published. Selection and gatekeeping processes (Shoemaker and Reese, 1996) determine the actual content, favouring certain events and sources over others. Since this content can affect both politicians and citizens alike, it assigns a certain degree of influence, and thus responsibility, to the individual journalist as well. Especially when it comes to politically contested issues, such as immigration, the struggle for attention is fierce and editorial and journalistic choices matter. Methodologically, studies of immigration and media rely on a content analysis most of the time, which is not surprising, given the centrality of content characteristics in media effects research. A huge variation in approaches towards content analysis exists – ranging from more qualitative discourse analysis to large-­scale, quantitative approaches. Here, I will not go into the discussion about the advantages and disadvantages of each type of study, but focus on key analytical concepts that are used, as well as the main findings. In general, these different types of studies yield overlapping or complementary outcomes.

Analysing media content The content of media can be analysed in many different ways and analyses focus on a wide variety of content characteristics. In the European literature on immigrants and immigration in the news, two approaches can be considered dominant. The first one is a combination of issue attention and framing. The second is political claims making.

Attention and framing Issue attention is the key (independent) variable in agenda setting research. It can be traced back to the sixties, when Cohen (1963, p. 13) captured the essence by stating: ‘the press may not be successful much of the time in telling people what to think, but it is stunningly successful in telling its readers what to think about’. This indicates that the attention that is devoted to the issue of immigration (compared to other political issues) is a relevant characteristic to investigate. For example for the Dutch situation, Vliegenthart and Boomgaarden (2007) show that attention for immigration and integration in national newspapers increased significantly during the late nineties and early years of this century. This rise of attention is not caused by figures on immigration or asylum seekers, but rather by key events such as 9/11. Also in other European countries, we see an increase in attention for the immigration issue, for example in coverage in the weeks preceding European parliamentary elections (e.g. McLaren et al., 2017; Schlueter and Davidov, 2011). 83

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General media attention to the immigration issue does not tell anything about questions such as how immigrant groups are portrayed, or which elements are central in the media coverage. If we focus on the salience of specific aspects, or interpretations, of topics, the concept of framing is often used. In communication science, but also in other social science areas, framing has become a tremendously popular concept to analyse the communication on a wide variety of political and societal issues. Immigration is no exception. In the seminal definition of Robert Entman (1993, p. 53), framing entails ‘the selection of some aspects of a perceived reality and make them more salient in a communicating text, in such a way as to promote a particular problem definition, causal interpretation, moral evaluation, and/or treatment recommendation for the item described’. While this definition is widely cited, the actual conceptualization and operationalization differs considerably across different studies. Most studies relating to immigration take an ‘issue specific’ approach (De Vreese, 2005), which means that they identify and study frames that are unique for the topic at hand. One of the first studies that describes media debates on the issue of immigration and minority integration is by Roggeband and Vliegenthart (2007) who analyse the coverage in Dutch national newspapers from 1995 until 2004. They identify five frames, including an emancipation frame that focuses on the empowerment of minorities through education and labour and the Islam-­as-a-­threat frame. They show that the latter dominates in coverage and especially after 9/11 a majority of articles contains this frame. Also other studies find that negatively valenced frames dominate coverage, for example in single-­ country studies of the United Kingdom (McLaren et al., 2017) and Belgium (Jacobs et al., 2016), in which immigrants are presented as a threat to the host society or related to issues such as crime and unemployment. The cross-­national study of Helbling (2014) provides a somewhat different picture. In a content analysis of quality newspapers in six countries for the period 1999–2006, he reveals that the most dominant frame present is a moral-­universal one, focusing on aspects such as fairness, equality and human rights. Differences in those findings compared to other studies might be traced back, at least partly, to different methodological choices as how to measure frames and also to material selection and what outlets are included. Additionally, Helbling focuses on actor-­level statements to determine the framing, while most other studies take the whole article as their point of reference. The studies discussed above all make a quantitative analysis of media content, covering periods of several years in the past decades and demonstrating considerable changes. In (often) more qualitative research the idea of discourse is used as a guiding principle to provide a deeper understanding into (media) debates. Clearly overlapping with framing, (critical) discourse analysis seeks to provide a (even more) detailed account of the debate and the multiple interpretations that can be attributed to it. In relation to the immigration topic, studies focus for example on differential expressions of denial of racism in press reports (Van Dijk, 1992), (negative) categories of representation of asylum seekers (Gabrielatos and Baker, 2008) and the (re)definition of national identity in times of increasing influx of immigrants (Triandafyllidou, 1999). For Italy, Sciortino and Colombo (2004) show that during the period 1969–2001 the press focused mainly on the economic participation of illegal immigrants, more than on criminalization. In a qualitative account of family migration in the Netherlands, Bonjour and Schrover (2015) reveal that media debates from the sixties until the nineties of the previous century throughout time contain ‘drama scenarios’ as well as ‘crisis scenarios’. In the first case, the emphasis is on individuals and the personal consequences they suffer from certain policies, while in the latter case, attention shifts to the (high) numbers, illegality and crime. There is no systematic trend in one scenario becoming more dominant over the other – it seems rather a case-­specific affair.

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Political claims making The second approach to analyse media content is political claims making, as has been proposed by Ruud Koopmans and Paul Statham (1999). While many attention and framing studies (though not all) consider media to be an institution that follows routines and also has an independent influence on politics and public opinion (in line with the earlier information function), the claims making approach puts more emphasis on the media as a platform, or arena, in which political and societal actors put forward their opinions and views. Key concepts in the claims making framework are visibility, resonance and legitimacy. Visibility deals with how often a certain claim can be found in media coverage, resonance with the degree to which other actors respond to that claim and legitimacy with the extent to which they do so in a supportive manner. While the political claims making approach is not confined to immigration and immigrants, it has been widely applied to this issue (see e.g. Statham and Geddes, 2006; van der Brug et al., 2015). Most notably, the book Contested citizenship (Koopmans et al., 2005) provides an elaborate account of the debates on immigration and citizenship in several Western­European countries in the nineties. The analysis reveals considerable differences in the presence and types of claims of the general debate on the immigration issue, as well as those that specific immigrants and immigrant groups make. For example, in Germany, a lot more claims relating to the connection to the homeland are brought forward, compared to Great Britain and the Netherlands.

Media content as a dependent variable While descriptions of media content might be interesting as such, understanding variation in coverage, as well as its impact on politics, policy and public are key. When it comes to explaining the content of immigration coverage, it is useful to first of all identify structural characteristics of the news making process that have an impact on the coverage and have a wider, more general application beyond the immigration issue. Here, gatekeeping processes (Shoemaker and Reese, 2013) and news values (Galtung and Ruge, 1965) play an important role. For example, negativity and conflict are important news values. It does not come as a surprise that frames that include those aspects are likely to receive more attention, as for example the ‘Islam-­as-a-­threat’ frame in the Roggeband and Vliegenthart study. Additionally, when it comes to the question of who is allowed to bring forward his or her perspective on the issue, mechanisms such as indexing (Bennett, 1990) play an important role: the more political power an actor has, the easier it is to access the media arena and bring forward his or her point of view. This might for example explain the relatively small presence of minorities themselves in many of the debates, especially in those countries where they are weakly organized and/or less-­well represented in politics (Koopmans et al., 2005). While general news selection processes are important to keep in mind when trying to understand the nature of coverage, it is in many instances more interesting to look at factors that help to account for differences in coverage. Here, it is useful to distinguish in differences occurring due to (1) temporal variation, (2) structural characteristics (i.e. cross-­national differences) of the context in which reporting takes place, as well as (3) cross-­outlet differences: not all media report in a similar way about political issues. Finally, also (4) attempts by politicians and other actors to influence the debate are worth considering. Starting with over-­time dynamics, the past two decades have shown considerable variation. Empirical results show that both the attention for and the framing of the issue is not so much affected by immigration numbers (Vliegenthart and Boomgaarden, 2007), but to some extent 85

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by policy changes (Bonjour and Schrover, 2015). More clearly, however, it seems that events have played a key role in the shaping of the media debate. As Vliegenthart and Boomgaarden (2007) and Roggeband and Vliegenthart (2007) show, the 9/11 and subsequent terrorist attacks in London and Madrid increased the attention to the issue, and shifted the framing in the direction of threat-­framing. Second, structural characteristics also matter. In their claims making analysis, Koopmans and colleagues (2005) argue that national citizen policies and configurations to a large extent determine the discursive opportunity structure, and ultimately the content of the coverage. They show that, for example, the German immigrant policies that emphasized it not to be an immigrant country, resulted in minorities that made considerably more claims relating to connection to the home country, compared to, for example, the Netherlands and France. Third, it is attractive to talk about ‘the’ media, as if it is a homogeneous, singular entity that has no variation across different channels. While many of the selection mechanisms work similarly for different outlets and channels, this does not mean that coverage is homogeneous. Different media can differ substantially in their coverage of politics in general, and immigration in particular. Roggeband and Vliegenthart (2007), for example, show that popular newspaper Algemeen Dagblad uses the ‘Islam-­as-a-­threat’ frame most frequently compared to other newspapers, while the progressive quality newspaper de Volkskrant employs the multicultural frame more often than its competitors. Overall, however, in absolute terms differences in framing across outlets are limited. This is in line with the findings of Lawlor (2015), who demonstrates that framing in local newspapers in the United Kingdom and Canada is largely in line with those in national newspapers. Matthews and Brown (2012) demonstrate that, in 2003, the British tabloid newspaper the Sun systematically and deliberately connected asylum seekers to all kind of negative issues, including terrorism and crime. In that sense, the coverage of immigration and related issues very much follows general patterns of differences across outlets: in countries with a liberal media system such as the United Kingdom (Hallin and Mancini, 2004), commercial pressures urge especially tabloid newspapers to take a negative approach to politics and political issues. The commercial logic has dominated media markets in liberal countries such as the UK for longer periods in time already, while in Democratic-­corporatist systems this commercial logic is less widespread and has a shorter history, resulting in coverage of politics and political issues that is more positive and less polarized (see Vliegenthart et al., 2011). Finally, politicians, but also other societal actors, such as social movements and advocacy groups, try to impact the media debate by bringing forward claims and framing the immigration issue in a certain way. As mentioned, institutional political actors with actual decision power have a larger chance to get their views into the news, as they are preferred by journalists as sources. When applied in a framing context, we see that media indeed follow the debate that takes place in parliament – but according to a particular mechanism: those frames that are already used in the media are the ones that get even more amplified when parliamentarians also use them (Vliegenthart and Roggeband, 2007).

Effects of media content on citizens and politics Media effects are of key interest in the study of communication processes. These effects can be in multiple realms. Here, the focus is on both political effects – i.e. to what extent does media coverage impact political debates and decisions – as well as on public opinion and voting behaviour.

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Effects on citizens Starting with the latter, research has focused on effects both at the aggregate level (i.e. general developments in public opinion and electoral preferences), as well on the individual level. On the aggregate level, research has shown that the attention for immigration leads to increasing support for anti-­immigrant parties, both in Belgium (Walgrave and De Swert, 2004), and in the Netherlands (Boomgaarden and Vliegenthart, 2007). The underlying mechanism is driven by agenda setting and issue ownership: if an issue receives more media attention, it will be more salient among the public as well. In a second step, it becomes a more important consideration when having to decide which party to vote for. Parties who ‘own’ the issue, i.e. are associated with the issue, are the most likely to profit. In a similar vein, aggregate-­level attitudes towards immigrants are influenced by media coverage: in their study on German newspaper coverage, Boomgaarden and Vliegenthart (2009) show that immigration problem perceptions are mainly driven by the tone of media coverage. The more positively immigrant actors are portrayed, the less people consider immigration a problem. This effect does depend on contextual factors: the higher the level of immigrants and asylum seekers, the larger the impact of evaluations in the news. Also Schlueter and Davidov (2011) find for Spain that negative media coverage has an impact on natives’ perceived group threat, but that this effect is especially prevalent for those regions in which the immigrant group size is small. The findings of a study by Van Klingeren and colleagues (2015) are partly in line with these findings: in the Netherlands a positive tone in news reports reduces anti-­immigrant attitudes. In Denmark, however, such an effect was not found. The authors tentatively suggest that this is due to the larger number of immigrants in the Netherlands, making the Dutch public more sensitive to valenced news coverage. A recent study in the United Kingdom demonstrates a similar impact of media coverage on public concern about immigration (McLaren et al., 2017). McLaren and colleagues find that if immigration is connected to other specific political issues, such as education and the economy, more frequently, it raises public concerns. The authors explain this finding by mentioning the unobtrusive and concrete character of those issues. Attention for immigration in combination with more abstract issues such as legal processes does not evoke any responses from the British public. Media coverage is not only able to impact attitudes, but can also have an effect on behavioural outcomes. In Germany, for example, Koopmans and Olzak (2004) demonstrate that visibility of and support for right-­wing violent claims actually increases the number of subsequent violent events targeting asylum seekers. A decade earlier, Brosius and Esser (1995) came to a similar conclusion: their book Eskalation durch Berichterstattung (‘Escalation due to media coverage’) reports how violence against asylum seekers can indeed escalate due to the way journalists report about those incidents. Overall, aggregate-­level studies demonstrate a variety of media effects, on attitudes, opinions, as well as behaviour. These findings are collaborated in individual level studies, looking at anti-­immigrant attitudes (Bos et al., 2016; Jacobs et al., 2016) and support for specific policy measures related to immigrants (Bos et al., 2016). The study of Bos and colleagues, for example, employs an experiment to test effects of framing and valence (tone) on support for measures that improve the position of immigrants on the labour market, as well as on more general anti-­immigrant attitudes in the Netherlands. First, they demonstrate that valence has an impact on attitudes towards policies to help immigrants, with a positive tone lending more support for such measures. Second, they show that anti-­immigrant attitudes are affected by frame use, rather than valence: the use of a multicultural frame decreases anti-­immigrant attitudes, while the use of a victimization frame, which describes ethnic minorities by using arguments connected to inequality, disadvantage, foreigners and victims, increases anti-­immigrant attitudes. These effects on anti-­immigrant attitudes are mediated 87

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by emotional responses of respondents: especially positive emotions such as enthusiasm are of importance in this process. Frames exert an influence on the presence of such emotions, which subsequently affect attitudes towards immigrants (Lecheler et al., 2015). Jacobs and colleagues (2016) find for Belgium that people who use more commercial television news have stronger anti-­immigrant attitudes. This commercial news is, compared to the public broadcaster, characterized by more sensational and tabloid-­style way of reporting.

Effects on politics Next to effects on citizens, effects on politics are also often investigated. This happens largely from a political agenda setting perspective (Walgrave and Van Aelst, 2006). Here, the question is first of all how attention for issues in the media affects subsequent attention for the same issues in politics, for example in parliamentary questions. This topic has generated a lot of attention in recent scholarly work, with many studies focusing on a wide variety of political issues, often including, but without specific interest in, immigration. Several studies do focus specifically on immigration. Vliegenthart and Roggeband (2007) for example demonstrate that political agenda setting effects exist for the immigration issue: more attention for the immigration issue in Dutch newspapers results in more attention for the issue in Dutch parliament, but only to a limited extent. They extend their analysis to frames and find that for certain frames, a media effect exists: for the multicultural frame, for example, they find that increased use in the media arena results in increased presence in the parliamentary realm in the subsequent months. Also van der Pas (2014) focuses specifically on the immigration issue, in both the Netherlands and Sweden. She demonstrates that political parties only respond to media coverage when the ‘framing is right’ – in other words: when the coverage reflects the framing of the issue as brought forward by the party. In this case, that means that impact is present when media coverage of immigration overlaps with the way parties discuss the issue in their party questions and speeches. In a more recent study, van der Pas and colleagues (2017) look at the extent to which political parties follow certain media while ignoring others, with according to their ideological backgrounds. For the immigration issue, they find that patterns of parallelism indeed still exist. Most notably, they show that the left-­leaning newspaper de Volkskrant has a stronger impact on the parliamentary behaviour of MPs who belong to political parties that have an electorate that overlaps with the readers of the newspaper. Most of the existing studies focus on media impact on ‘symbolic’ political agenda’s – i.e. those that do not have direct consequences in terms of policy or legislation. An exception is the previously mentioned study by Bonjour and Schrover (2015) who show that the media impact on policy-­making increases where there is controversy between decision makers, and decreases where civil servants play a larger role in the decision making process. Also Dekker and Scholten (2017) point to the importance of conflict: in their study of sixteen important events in recent Dutch immigration policies, they find that frame contestation is a necessary condition for media coverage to change immigration policies.

Conclusion This chapter has provided an overview of European research into media content and effects relating to the issue of immigration. In many instances, scholars treat immigration as just an issue that is particularly suitable to test general theories on the causes and consequences of content. And indeed, many general theories such as news selection, gatekeeping, agenda setting and framing are confirmed and in some instances even extended based on those studies. Considering immigration as ‘just’ a political issue, however, glosses over the tremendous importance of the 88

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issue in political and electoral settings across Europe. Fear of immigration was one of the key issues in the campaign leading up to the Brexit referendum in 2016. Furthermore, it accounts to a considerable extent for the rise of populist right-­wing parties in many European countries. Migration is an issue where media content and effects matter, more so than with many other political issues. It is therefore all the more problematic that coverage is out of sink with ‘reality’: the attention and framing of the issue is merely a consequence of newsworthy events rather than a reflection of more systematic trends in immigration figures. Similarly, the emphasis on negativity and frames that contain elements such as threat and fear contribute to a view that integration of large groups of minorities has failed, while (statistical) evidence might suggest otherwise. Future research should be aimed at scrutinizing this distortion further. Additionally, it might also take into account the role of social media, which is altering the media landscape and communication patterns in multiple ways. On the one hand, it might offer disadvantaged or minority groups opportunities to express themselves and reach audiences without the interference of journalists and news selection processes. On the other hand, anti-­immigrant opinions and views find a fertile ground on all kind of social media, trickling down to other realms where public debates take place as well. Finally, it is worth noting that existing research is biased in two respects. First, a vast majority of the research focuses on written texts and hardly on visuals. This often has a clear practical reason: written texts are more easily accessible and widely available in electronic archives, making large-­scale longitudinal research a viable option. Still, given the perceived importance of (moving) visuals when it comes to for example refugee crises, they deserve a more prominent place in empirical investigations. Second, it largely focuses on findings from West-­European countries. On the one hand, this is not a surprise: it might not only reflect a structural bias in academic research, but also the fact that these countries have in recent history faced a larger influx of immigrants than Eastern European countries. It is worthwhile to extend research to include more of those countries, to get a good grip of the impact of contextual factors on both news production and effects.

References Bennett, W.L., 1990. Toward a theory of press-­state relations in the United States. Journal of Communication, 40(2), pp. 103–127. Bonjour, S. and Schrover, M., 2015. Public debate and policy-­making on family migration in the Netherlands, 1960–1995. Journal of Ethnic and Migration Studies, 41(9), pp. 1475–1494. Boomgaarden, H.G. and Vliegenthart, R., 2007. Explaining the rise of anti-­immigrant parties: The role of news media content. Electoral Studies, 26(2), pp. 404–417. Boomgaarden, H.G. and Vliegenthart, R., 2009. How news content influences anti-­immigration attitudes: Germany, 1993–2005. European Journal of Political Research, 48(4), pp. 516–542. Bos, L., Lecheler, S., Mewafi, M. and Vliegenthart, R., 2016. It’s the frame that matters: Immigrant integration and media framing effects in the Netherlands. International Journal of Intercultural Relations, 55, pp. 97–108. Brosius, H.B. and Esser, F. (2013). Eskalation durch Berichterstattung?: Massenmedien und fremdenfeindliche Gewalt. Wiesbaden: Springer-­Verlag. Cohen, B.C., 1963. Press and foreign policy. Princeton, NJ: Princeton University Press. Dekker, R. and Scholten, P., 2017. Framing the immigration policy agenda: A qualitative comparative analysis of media effects on Dutch immigration policies. International Journal of Press/Politics, 22(2), pp. 202–222. De Vreese, C.H., 2005. News framing: Theory and typology. Information Design Journal+ Document Design, 13(1), pp. 51–62. Entman, R.M., 1993. Framing: Toward clarification of a fractured paradigm. Journal of Communication, 43(4), pp. 51–58.

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Rens Vliegenthart Esser, F. and Brosius, H.B., 1995. Eskalation durch Berichterstattung? Massenmedien und fremdenfeindliche Gewalt. Opladen: Westdeutscher Verlag. Gabrielatos, C. and Baker, P., 2008. Fleeing, sneaking, flooding: A corpus analysis of discursive constructions of refugees and asylum seekers in the UK press, 1996–2005. Journal of English Linguistics, 36(1), pp. 5–38. Galtung, J. and Ruge, M.H., 1965. The structure of foreign news: The presentation of the Congo, Cuba and Cyprus crises in four Norwegian newspapers. Journal of Peace research, 2(1), pp. 64–90. Hallin, D.C. and Mancini, P., 2004. Comparing media systems: Three models of media and politics. Cambridge: Cambridge University Press. Helbling, M., 2014. Framing immigration in Western Europe. Journal of Ethnic and Migration Studies, 40(1), pp. 21–41. Hilgartner, S. and Bosk, C.L., 1988. The rise and fall of social problems: A public arenas model. Amer­ican Journal of Sociology, 94(1), pp. 53–78. Jacobs, L., Meeusen, C. and d’Haenens, L., 2016. News coverage and attitudes on immigration: Public and commercial television news compared. European Journal of Communication, 31(6), pp. 642–660. Koopmans, R. and Olzak, S., 2004. Discursive opportunities and the evolution of right-­wing violence in Germany. Amer­ican Journal of Sociology, 110(1), pp. 198–230. Koopmans, R. and Statham, P., 1999. Political claims analysis: Integrating protest event and political discourse approaches. Mobilization: An International Quarterly, 4(2), pp. 203–221. Koopmans, R., Statham, P., Giugni, M. and Passy, F. ed., 2005. Contested citizenship: Immigration and cultural diversity in Europe. Minneapolis, MN: University of Minnesota Press. Lawlor, A., 2015. Local and national accounts of immigration framing in a cross-­national perspective. Journal of Ethnic and Migration Studies, 41(6), pp. 918–941. Lecheler, S., Bos, L. and Vliegenthart, R., 2015. The mediating role of emotions: News framing effects on opinions about immigration. Journalism & Mass Communication Quarterly, 92(4), pp. 812–838. Matthews, J. and Brown, A.R., 2012. Negatively shaping the asylum agenda? The representational strategy and impact of a tabloid news campaign. Journalism, 13(6), pp. 802–817. McLaren, L., Boomgaarden, H. and Vliegenthart, R., 2017. News coverage and public concern about immigration in Britain. International Journal of Public Opinion Research. Roggeband, C. and Vliegenthart, R., 2007. Divergent framing: The public debate on migration in the Dutch parliament and media, 1995–2004. West European Politics, 30(3), pp. 524–548. Schlueter, E. and Davidov, E., 2011. Contextual sources of perceived group threat: Negative immigration­related news reports, immigrant group size and their interaction, Spain 1996–2007. European Sociological Review, 29(2), pp. 179–191. Sciortino, G. and Colombo, A., 2004. The flows and the flood: The public discourse on immigration in Italy, 1969–2001. Journal of Modern Italian Studies, 9(1), pp. 94–113. Shoemaker, P.J. and Reese, S.D., 2013. Mediating the message in the 21st century: A media sociology perspective. London: Routledge. Statham, P. and Geddes, A., 2006. Elites and the ‘organised public’: Who drives British immigration politics and in which direction?. West European Politics, 29(2), pp. 248–269. Triandafyllidou, A., 1999. Nation and immigration: A study of the Italian press discourse. Social Identities, 5(1), pp. 65–88. Van Aelst, P. and Walgrave, S., 2016. Information and arena: The dual function of the news media for political elites. Journal of Communication, 66(3), pp. 496–518. van der Brug, W., D’Amato, G., Ruedin, D., and Berkhout, J. (eds). 2015. The politicisation of migration. London: Routledge. van der Pas, D., 2014. Making hay while the sun shines: Do parties only respond to media attention when the framing is right? The International Journal of Press/Politics, 19(1), pp. 42–65. van der Pas, D.J., van der Brug, W. and Vliegenthart, R., 2017. Political parallelism in media and political agenda-­setting. Political Communication, 34(4), pp. 491–510. van Dijk, T. A., 1992. Discourse and the denial of racism. Discourse & Society, 3(1), pp. 87–118. van Klingeren, M., Boomgaarden, H.G., Vliegenthart, R. and De Vreese, C.H., 2015. Real world is not enough: The media as an additional source of negative attitudes toward immigration, comparing Denmark and the Netherlands. European Sociological Review, 31(3), pp. 268–283. Vliegenthart, R. and Boomgaarden, H.G., 2007. Real-­world indicators and the coverage of immigration and the integration of minorities in Dutch newspapers. European Journal of Communication, 22(3), pp. 293–314.

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Media and immigration Vliegenthart, R., Boomgaarden, H.G. and Boumans, J.W., 2011. Changes in political news coverage: Personalization, conflict and negativity in British and Dutch newspapers. In Brants, K. and Voltmer, K., eds. Political communication in postmodern democracy (pp. 92–110). Basingstoke: Palgrave Macmillan. Vliegenthart, R. and Roggeband, C., 2007. Framing immigration and integration: Relationships between press and parliament in the Netherlands. International Communication Gazette, 69(3), pp. 295–319. Walgrave, S. and De Swert, K., 2004. The making of the (issues of the) Vlaams Blok. Political Communication, 21(4), pp. 479–500. Walgrave, S. and Van Aelst, P., 2006. The contingency of the mass media’s political agenda setting power: Toward a preliminary theory. Journal of Communication, 56(1), pp. 88–109.

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Section Commentary Governance Mikołaj Pawlak

Governance of migration is an institutionalised approach to regulating immigration and its consequences in social and economic spheres across the European Union (EU). However, for the Central and Eastern European (CEE) countries that accessed the EU in 2004 and 2007 (as well as for the non-­EU European countries), the governance of migration is a new concept that they have not entirely incorporated into their institutional and political systems. While there are many differences among the Eastern European countries, in regard to migration they share a few important similarities: they are sending countries (to various degrees) but they are also receiving countries, and until recently, the issue of immigration was not a topic of public debates there. The authors contributing to the current section have presented debates largely absent from the Eastern European context; still, these debates are relevant due to the processes of policy diffusion occurring on the European continent. Indeed, both the definition of the problems and the solutions to these problems are subjects of such diffusion, which is understood as a circulation and spreading of practices and ideas across different kinds of borders (Djelic 2008). For various social actors in Eastern Europe, Western Europe is a source of models, legitimacy and inspiration, for instance with regard to best practice in migrant integration, but also the political uses of scapegoating (Pawlak 2013a; Radaelli 2000; Weinar 2006).

Governance of ignorance Various social actors and interest groups in Eastern Europe observe Western debates and make use of them. Sometimes immigrants are a rather mythical figure of policies or discourses, for example, in the case of the rise of Islamophobia in countries where immigration from Muslim countries is nearly non-­existent (Narkowicz and Pędziwiatr 2017). Therefore, ignorance studies are a useful frame for understanding migration governance in Eastern Europe: they explore how strategic ignorance and social unknowing are used in maintaining and disrupting social and political orders by ‘allowing both governors and the governed to deny awareness of things it is not in their interest to acknowledge’ (McGoey 2012: 4). In this approach, ignorance is not understood as simple opposition to knowledge but as its component, which may be a tool of domination (the knowledgeable dominate the ignorant) but may also open possibilities for emancipation (the ignorant can become more powerful than the knowledgeable because they lack the constraints of knowledge) (Gross and McGoey 2015). This dual dynamic is reflected in 92

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the CEE experience in migration policy matters: before 2015, immigration was ignored by the broader public and was governed in the shadows, mostly by the lower levels of administration (Kubicki et al. 2017). Since 2015, immigration has been in the centre of public attention, although it is presented and debated in an extremely mythologised way. During the time when immigration was not a debatable issue, the CEE elites did not have an incentive to build up a public debate, invest in gathering knowledge or seriously engage in policy development. This policy gap was filled by the European Commission and the instruments it offered on the early stages of migration policy formation. Weinar (2006) showed that the ‘Europeanness’ of acquis communautaire was a strong legitimising factor for the Parliament when voting on the migration regulations before EU accession, while Pawlak (2013a) documented that parts of the Polish Migratory Policy strategy announced in 2011 were strongly inspired by operational documentation that was produced by the Commission to support the guidelines of the European Fund for the Integration of Third Country Nationals. Most of the studies cited by Ilke Adam and Tiziana Caponio in their chapter on multi-­level governance focused on state relations with other levels of policy: European, regional and local. In the framework of multi-­level governance, the governance of migration is an informed process encompassing a large number of actors cooperating and negotiating in the pursuit of policy development. In CEE countries, in some policy areas regarding migration, the national state level was bypassed. For example, as regards integration policies, the national high-­level politicians were not aware of the EU Common Agenda on Integration, but its instruments were introduced in Polish law and then implemented by lower-­level civil servants (Kaźmierkiewicz and Frelak 2011). According to the study of the Institute of Public Affairs, Polish Members of Parliament did not realise that the European Fund for the Integration of Third Country Nationals funded many initiatives implemented by Polish non-­governmental organisations (NGOs) (Kaźmierkiewicz and Frelak 2011). The beneficiaries of the European funds were mostly NGOs, which not only provided direct assistance to immigrants but also lobbied for changes in the law that would reflect EU-­level best practice in integration (Pawlak and Matusz-­Protasiewicz 2015). Thus we can say that in CEE countries, governance of migration did not reflect the concepts used in Western Europe. Instead, the national level provided a scant and general legal framework, and immigration policies constituted a niche for a small group of passionate civil servants, academics and civil society activists working under the radar of the national institutions. This leads to the next consideration of a ‘gap’ debate in mainstream migration studies. The considerations regarding the ‘control gap’ in the chapter by Blanca Garcés-Mascareñas bring our attention to the interest groups that in the CEE countries are attempting to influence migration governance. Until recently, the broader public was not paying attention to the issue of immigration, so the interest groups had to influence the policy-­makers, not the public debate. To some extent, the perceived opinion of stakeholders such as the European Commission or international organisations influenced the governance of migration. For example, Karolina Lukasiewicz (2017) demonstrated that the asylum system in Poland was declaratively aiming at the integration of refugees but, as an outcome, it was placing the refugees in a situation of poverty. In the case of labour migration to Poland, it emerged as an effect of various groups lobbying for their interests: farmers in need of seasonal workers (Bieniecki and Pawlak 2012) or universities facing a decreased number of candidates (Konieczna-­Sałamatin 2015). Migration governance was pursued in the shadow of public ignorance, which allowed technocratic management by civil servants but was inhibiting larger reforms and purposeful coordination. The recent change of conditions for migration governance is an effect of the very high levels of public attention to the issue, triggered by the so-­called ‘refugee crisis’ in 2015. Since that moment, there have been strong political declarations of a will to coordinate migration policy 93

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and to securitise it (Kubicki et al. 2017). However, it remains mostly on the level of declarations; the policies themselves are still incoherent and reconciling various interests. When looking at the Migrant Integration Policy Index (MIPEX) data, one can see that the newer EU member states score quite high when a certain policy is codified in a EU directive, transposed to the national regulations. Nora Dörrenbächer and Tineke Strik, in their chapter on the implementation of migration law, use the notion of ‘the world of dead letters’, coined by Falkner and Treib (2008), to describe the regulations not used in practice. For historical reasons, Eastern Europe has a strong culture of decoupling the practices of administration from the formal rules (Hirsch and Bermiss 2009). The outcomes of the studies of the street level bureaucracy are ambiguous. On one hand, civil servants apply their beliefs and are capable of discretional influence with regard to issuing residence permits (Skowrońska 2017). On the other hand, caseworkers often do more than required for the benefit of the refugees with whom they work (Lukasiewicz 2017; Pawlak 2013b). This discretion is also caused by the complexity of regulations that need to be navigated through and the relatively high rotation of staff employed on the front desk level (Klaus 2009). Ignorance is at work here as well: since the problems faced by immigrants in their contacts with administration are not debated by the public, there is no pressure to increase the standards of administration and social welfare services. The chapter by Emma Carmel and Hester Kan on the use of expertise in migration governance focuses on categorisations of migrants. It touches on the very paradox of knowledge production: there cannot be knowledge without coexisting ignorance. Migration governance is structured according to migrant categories, and the categorisation supports knowledge creation. Yet there will always be blind spots between the binary categories. In case of Eastern Europe, the binary distinction between mobile EU citizens and third-­country national migrants is especially confusing. For quite a long time after the 2004–2007 accession, citizens of ‘new’ member states did not enjoy full intra-­EU mobility rights (the right to work) in the majority of the ‘old’ member states. Similarly, ‘new’ member states have special bilateral agreements with selected non-­EU post-­Soviet countries that allowed for non-­EU labour circulation – these include Polish regulations for seasonal employment of citizens from selected post-­Soviet countries (used mostly by Ukrainians) or special treatment of co-­ethnics by Hungary and Romania. The status of third-­country nationals in Eastern Europe is also much different: with increasing labour migration, there is also a well-­off group of expats from non-­EU Organisation for Economic Co-­operation and Development (OECD) countries. The Western European focus on ‘migrant’ as coming from the global South has so far not responded to the realities of migration in Eastern Europe. Thus the knowledge produced by scholars in the Western part of the continent has not been entirely useful. Knowledge is a tool of migration governance, but purposive ignorance of various processes is as well. Administration looks with a blind-­eye on various migration-­related practices. At the intersection of two binary categories, legal-­illegal residence and legal-­illegal employment, there is quite a large category of residents who are legal but employed in shadow economy. Although the state has a means to counter this situation, it does not because it would cause harm to certain sectors of the economy.

Informed debates: issues that matter The West-­East disconnect is clearest when it comes to actual knowledge production in the area of migration governance in CEE countries. The issues that are researched, made into policies and implemented are very different from the issues raised by the contributors to this section. 94

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First is the case of emigration and diaspora governance. In some CEE countries, there are very interesting overlaps between the policies towards diaspora (those co-­ethnics who emigrated or whose ancestors emigrated) and national minorities (those co-­ethnics who are citizens of other states not because of migration but because of changes in political borders). Some CEE countries (such as Hungary, Poland or Romania), which have significant numbers of co-­ethnics in post-­Soviet countries, use the policies targeting them as a tool of de facto immigration policy: co-­ethnics often have lower visa requirements or special documents which allow them to enter the state; do not have to apply for work permits; or they have a much easier path for acquiring citizenship. What is a very important factor, highlighted by Agnieszka Weinar in her chapter on the politics of emigration, is that emigration in the countries of Eastern Europe is recognised as a state failure. However, contrary to the declarations of decision-­makers, they do not develop effective policies encouraging re-­emigration (Lesińska 2013). This is not expressed openly, but it seems that decision-­makers realise that return policies cannot be successful and that re-­ emigration is only possible when the sending country achieves a certain level of economic growth. So the policies targeting diasporas focus on maintaining cultural bonds with the motherland rather than empowering them to become more efficient political actors in the host societies (Fiń et al. 2013). Another issue that matters in CEE countries and that was not debated in this section of the Handbook is intra-­EU mobility and its consequences for the sending countries. As a consequence of the 2004 and 2007 accessions, large numbers of workers from the new EU member states used the new opportunities to migrate to the old member states. In case of the Baltics, Bulgaria, Poland, Romania and Slovakia, quite a substantial share of the workforce relocated. The impact of this migration on sending societies has been broadly debated and also studied by migration scholars in CEE countries. In Poland, the so-­called post-­accession migration has been a large source of financial as well as social remittances (Grabowska et al. 2016). Although quite a large share of these migrants are back-­and-forth labour migrants (Fihel and Grabowska-­Lusińska 2014), their relations with elderly parents have been transformed (Krzyżowski and Mucha 2014). However, the issue that drew the most public attention was that of relations between parents working in the Western EU member states and their children, who stayed behind in CEE countries (Urbańska 2015). Yet we cannot say that states developed any profound policies supporting people who became more vulnerable as a result of their relatives’ migration.

Conclusions This overview of diverse approaches to migration governance in Western and Eastern Europe shows that the thesis of European exceptionalism in migration policy and politics does not necessarily hold. We have plenty of evidence of the diversity of policy models and political debates on the continent. Peripheral states of Europe struggle with various challenges concerning migrations. They are mostly sending societies but also increasingly hosting ones. Yet the Western countries are recognised as models for the majority of them, so on various levels, inspirations are diffused from Western Europe to its other parts. This diffusion comprises not only policy best practices but also mutual inspirations between right-­wing parties that use anti-­ immigrant rhetoric as a tool of political mobilisation. Ironically, xenophobes are quite open to learning from each other. So on many levels, we can notice convergence in Europe and the development of a European model of immigration governance with a focus on securitising migration from beyond the European continent. An important question to be asked here is: does it actually matter that there is some kind of European exceptionalism here? I believe that in regards to the migratory processes, Europe constitutes a ‘cosmos’ of its own and for this 95

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reason, it is more important to make comparisons between European states than between Europe and other large regions of the world.

References Bieniecki, M. and Pawlak, M. 2012. Simplification of Employment of Foreign Workers in Poland and the Case of Wrocław. In: A. Platonova, G. Urso (eds). Labour Market Inclusion of the Less Skilled Migrants in the European Union. Brussels: International Organization for Migration, pp. 65–73. Djelic, M-­L. 2008. Sociological Studies of Diffusion: Is History Relevant?. Socio-­Economic Review 6(3), pp. 538–557. Falkner, G. and Treib, O. 2008. Three Worlds of Compliance or Four? The EU-­15 Compared to New Member States. Journal of Common Market Studies 46(2), pp. 293–314. Fihel, A. and Grabowska-­Lusinska, I. 2014. Labour Market Behaviours of Back-­and-Forth Migrants From Poland. International Migration 52(1): 22–35. Fiń, A., Legut, A., Nowak, W., Nowosielski, M. and Schöll-Mazurek, K. 2013. Polityka polonijna w ocenie jej wykonawców i adresatów. IZ Policy Papers, 11. Grabowska, I., Garapich, M.P., Jaźwinska, E. and Radziwinowicz, A. 2017. Migrants as Agents of Change. Social Remittances in an Enlarged European Union. Basingstoke, London: Palgrave Macmillan. Gross, M. and McGoey, L., eds. 2015. Routledge International Handbook of Ignorance Studies. Abingdon: Routledge. Hirsch, P.M. and Bermiss, Y.S. 2009. Institutional ‘Dirty’ Work: Preserving Institutions through Strategic Decoupling. In: T.B. Lawrence, R. Suddaby, B. Leca (eds). Institutional Work. Actors and Agency in Institutional Studies of Organizations. Cambridge: Cambridge University Press, pp. 262–283. Kaźmierkiewicz, P. and Frelak, J. 2011. Political Participation of Third Country Nationals on a National and Local Level. Warszawa: Instytut Spraw Publicznych. Klaus, W. 2009. Przyjazny urząd: Ewaluacja funkcjonowania Wydziału Spraw Cudzoziemców Mazowieckiego Urzędu Wojewódzkiego. Warszawa: Stowarzyszenie Interwencji Prawnej. Konieczna-­Sałamatin, J., ed. 2015. Imigranci o wysokich kwalifikacjach na polskim rynku pracy: Raport z badań 2014–2015. Warszawa: Instytut Społeczno-Ekonomicznych Ekspertyz, Fundacja ‘Nasz Wybór’. Krzyżowski, Ł. and Mucha, J. 2014. Transnational Caregiving in Turbulent Times: Polish Migrants in Iceland and Their Elderly Parents in Poland. International Sociology 29(1), pp. 22–37. Kubicki, P., Pawlak, M., Mica, A. and Horolets, A. 2017. Wyjście z cienia: Polityka uchodźcza w sytuacji kryzysu. Polityka Społeczna 9(522), pp. 22–28. Lesińska, M. 2013. The Dilemmas of Policy Towards Return Migration: The Case of Poland After the EU Accession. Central and Eastern European Migration Review 2(1), pp. 77–90. Lukasiewicz, K. 2017. Exile to Poverty: Policies and Poverty Among Refugees in Poland. International Migration 55(6), pp. 56–72.  McGoey, L. 2012. Strategic Unknowns: Towards a Sociology of Ignorance. Economy and Society 41(1), pp. 1–16. Narkowicz, K. and Pędziwiatr, K. 2017. From Unproblematic to Contentious: Mosques in Poland. Journal of Ethnic and Migration Studies 43(3), pp. 441–457. Pawlak, M. 2013a. Imitacja w tworzeniu polskiej polityki integracji cudzoziemców. Studia Migracyjne – Przegląd Polonijny 39(3), pp. 97–121. Pawlak, M. 2013b. Organizacyjna reakcja na nowe zjawisko: Szkoły i instytucje pomocowe wobec uchodźców w Polsce po 2004 r. Warszawa: IPSiR UW. Pawlak, M. and Matusz-­Protasiewicz, P. 2015. Organizacje pozarządowe wobec cudzoziemców w Polsce: Od pomocy doraźnej do upowszechniania europejskiej ramy polityki integracji. Trzeci Sektor 35(2), pp. 11–21. Radaelli, C.M. 2000. Policy Transfer in the European Union: Institutional Isomorphism as a Source of Legitimacy. Governance. An International Journal of Policy and Administration 13(1), pp. 25–43. Skowrońska, K. 2017. Niejednoznaczna władza, wspólne normy i niedopowiedziane cele: działanie Wydziału Spraw Cudzoziemców Mazowieckiego Urzędu Wojewódzkiego jako studium przypadku pola organizacyjnego polityki migracyjnej w Polsce. Studia Polityczne 45(2), pp. 217–239. Urbańska, S. 2015. Matka Polka na odległość: Z doświadczeń migracyjnych robotnic 1989–2010. Toruń: Wydawnictwo UMK. Weinar, A. 2006. Europeizacja polskiej polityki wobec cudzoziemców 1990–2003. Warszawa: Wydawnictwo Naukowe Scholar.

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Part II

Institutions

8 The Role of Courts and Legal Norms Rebecca Hamlin and Hillary Mellinger

Introduction The migration studies literature has not reached consensus about how courts and legal norms shape migration policy. Historically, many scholars considered judicial influence over migration to be limited because judges recognize that migration is a core aspect of state sovereignty, and hence are reticent to second guess decisions made by the elected branches of government (Motomura, 2008; Schain, 2008; Tichenor, 2002). However, judicial involvement in migration seems to have increased in recent decades, causing an expansion of non-­citizens’ rights in many different national jurisdictions. Scholars disagree about whether these shifts should be attributed to the spread of liberal international human rights norms (Dauvergne, 2008; Hollifield, 2004; Sassen, 1999; Tolley, 2012) or to domestic legal and political advocacy (Guiraudon, 2000; Joppke, 2001). Scholars also disagree about the frequency of judicial assertions of power, partially because studies have examined a broad range of topics, including border control mechanisms, refugee policy, and the rights of undocumented migrants, guest-­workers and permanent residents – all very different aspects of migration law. Finally, some countries simply have more active judiciaries than others, and varying relationships to international legal norms. An examination of the European case provides general support for the claim that the historically limited judicial power over migration is increasing in some significant ways. In particular, liberal norms as translated by courts have been used to expand the rights of non-­citizens and constrain anti-­immigrant politics in Europe, sometimes directly though judicial rulings, and sometimes indirectly through the shaping of discourse about rights. The European case also suggests that judicial involvement in migration matters may be contributing to a political backlash linked to sovereignty concerns and the counter-­majoritarian nature of judicial decision-­ making. Nevertheless, the European case has several special features that may constrain the general applicability of the lessons to be drawn from it. The central role of supranational courts and international treaties in migration matters are particular to Europe. The existence of European­level legal standards has contributed to some degree of continental unity, especially since the adoption of a uniform European Union (EU) migration policy. However, there is still a surprising patchwork resulting from cross-­national variation in implementation, impact and response to judicial involvement in migration. Perhaps the larger lesson gained from a focus on the 99

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r­ elationship between courts and migration in Europe is that it is difficult, even unhelpful, to make sweeping generalizations about the role of courts in migration. Ultimately, the impact of courts can depend on the type of non-­citizen, the place, and the moment. This chapter is divided into two parts. The first part provides an overview of the historical evolution, mission and jurisprudence of the two European Courts, and addresses whether these courts have constrained state sovereignty over migration policy. The second part highlights points of cross-­national variation in European states’ migration law, using a brief comparison of the most frequently studied cases: Germany, France and the United Kingdom. We conclude the chapter by outlining some larger lessons and suggesting additional avenues of research.

The role of international courts International courts and legal norms play an exceptional role in the European politics of migration because, while other regions of the world have one supranational court, or none at all, Europe has both the European Court of Human Rights (ECtHR) in Strasbourg and the Court of Justice of the European Union (CJEU) in Luxembourg. These two courts have been surprisingly active in adjudicating migration matters, particularly those pertaining to asylum and deportation, with their involvement increasing rapidly since the mid 1990s (Anagnostou, 2010; Tolley, 2012). In contrast, regional courts in other parts of the world either do not review migration cases at all, or have much more nascent jurisprudence when it comes to migration (Abass and Ippolito, 2016). While supranational courts and legal institutions are usually viewed as agents of standardization and proponents of universal norms, the dual jurisdictions and distinct legal instruments of Europe’s two courts are also a source of variability. Both the ECtHR and the CJEU are located within the territory of the EU and have the word ‘European’ in their titles, but only the latter is a EU institution. The courts were created for different purposes and are guided by distinct missions, with no formal relationship that ties them together (Balfour, 2005; Vicini, 2015). The Council of Europe created the ECtHR in the aftermath of World War II to interpret the European Convention on Human Rights (‘the Convention’) and to uphold human rights protection standards among the vast majority of European states that are now members of the Council of Europe. Since its creation in 1952, the CJEU’s objective is to interpret and enforce EU law and to ensure that EU Member States and institutions comply with the EU Charter of Fundamental Rights (‘the Charter’). The ECtHR has a broader jurisdiction than the CJEU because there are almost twice as many Council of Europe states as EU Member States. Notably, as of 2017, Belarus and Kosovo are not members of either the Council of Europe or the EU, creating an interesting legal vacuum in which neither supranational court has jurisdiction. It is a testament to the strong working relationship of the two courts that their jurisprudence is strikingly convergent despite their different institutional mandates and lack of official connection. Together, the ECtHR and CJEU ‘claim the right to set standards applicable to a substantial part – if not all – of the continent’ (Morano-­Foadi and Andreadakis, 2011, p. 1075, citing Callewaert, 2009). The two courts cite each other regularly, and both subscribe to the belief that the Convention and the Charter should dovetail each other. In fact, Article 52(3) of the Charter states that Charter provisions ‘must be given the same meaning and scope as the rights’ ensured by the Convention (Vicini, 2015, p. 57). Their ability to produce a consistent legal narrative is somewhat constrained by their inability to refer cases to themselves. Thus, they are engaged in a watching game with one another, such that the CJEU will issue a judgment, and then wait for the ECtHR to receive a similar case in which it can make its own response, and vice versa. This jurisprudential dialogue allows the two courts to see how they each respond to cases involving 100

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similar issues; however, the ability of each court to correct or add to the jurisprudential record is dependent on when a case arises before it. Beyond overlapping jurisdictions, the patchwork of European law is exacerbated by the fact that state relationships to the ECtHR have varied tremendously over time and continue to vary by state (Keller and Stone Sweet, 2008, p. 4). For example, states have incorporated the Convention into their domestic law at different points over the decades, some waiting until quite recently, while others embraced a relationship with the ECtHR early on. States with pre-­existing independent judiciaries and strong human rights protections have been less likely to proactively incorporate the ECtHR’s jurisprudence into their law, preferring their own domestic protections (Keller and Stone Sweet, 2008, p. 20). By contrast, other states have relied upon European jurisprudence to fill a void in domestic law. Based on the ‘margin of appreciation’ doctrine, domestic courts are expected to treat ECtHR rulings as a baseline of rights protection below which they must not fall. Yet, some domestic courts (particularly the German Federal Constitutional Court) have chosen to go well beyond the baseline set by the ECtHR, while others have chosen to simply ‘keep pace with’ the jurisprudence of the Strasbourg Court (Tolley, 2012). The ECtHR requires states to exhaust all domestic remedies before referring a case to it, and European states vary in the extent to which their domestic legal institutions protect the rights of non-­citizens. The most frequently invoked aspects of the Convention are Article 8 (the right to private and family life) and Article 3 (prohibiting degrading and inhuman treatment). One study found that international norms about the treatment of refugees had trickled down from the ECtHR to be implemented domestically (Guiraudon and Lahav, 2000). However, at that time, they found no evidence that this trend had any general effect on state sovereignty beyond refugee policy, because in many other areas of migration, states pursued entirely domestic agendas (2000, p. 189). Another more recent study found that the influence of the ECtHR on domestic policy was most significant in regards to social benefits, less so on the topics of deportation and asylum, which are more closely connected to border control and sovereignty concerns (Anagnostou, 2010, p. 735). Overall, the ECtHR has a mixed record of constraining European states’ restrictions on the rights of migrants. In more recent years, as EU migration law has developed, the CJEU has had more success in asserting its jurisprudence over EU Member States. It has developed an ‘EU rule of law’ that has constrained Member States’ ability to adopt restrictive migration policies, particularly within the domains of family reunification, long-­term residence, expulsion, and integration (Acosta and Geddes, 2013). The Amsterdam Treaty, the Nice Treaty and the Lisbon Treaty each increased the competencies and powers of the CJEU, which has utilized these newfound powers to progressively interpret and enforce certain directives that pertain to migration (Acosta and Geddes, 2013; Kaunert and Léonard, 2012). The 2008 introduction of a ‘high-­speed preliminary ruling procedure’ permits the CJEU to expedite their decision-­making for cases in which ‘an urgent response is required because of issues of personal freedom’ (Kaunert and Léonard, 2012, p.  1407). Nonetheless, the CJEU is constrained by the extent to which EU Member States refer cases to it. Lower courts choose to refer cases in varying degrees, both within and across states (Kelemen and Pavone, 2016). The CJEU has progressively interpreted several directives that pertain to migration policies. For example, in 2011, the CJEU interpreted the Returns Directive, ruling that Member States must prioritize voluntary departure over deportation, and that the imprisonment of undocumented third country nationals (TCNs), i.e. non-­EU citizens, was overly restrictive (See the El Dridi and Achughbabian decisions). Regarding the Long-­Term Residence Directive, the CJEU has proscribed Member States from denying long-­term residence status to TCNs who fulfill all the conditions of the directive (Acosta Arcarazo, 2015). These judgments can be viewed as a 101

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challenge to Member States’ sovereignty, since they constrain states’ ability to exclude certain TCNs from their polity. Although Member States continue to retain the sovereign right to decide upon whom to confer citizenship, some argue that long-­term residence status is a subsidiary form of EU citizenship given the many rights that it entails (Acosta and Geddes, 2013; Wiesbrock, 2013). Thus, the CJEU’s interpretation of the Long-­Term Residence Directive can be understood as directly affecting the ‘politics of belonging’ in the sense that it does not limit an individual’s degree of inclusion within a polity to their citizenship status. EU citizens still possess greater rights than non-­citizens, but TCNs with long-­term residence status fall just below them. The CJEU has also ruled that Member States are in contravention of the Family Reunification Directive if they introduce onerous policies as a mechanism by which to deter or deny family reunification. The Netherlands imposed high-­income requirements as a condition for long-­term resident TCNs to sponsor their family members; it also required that family members pass an integration test with a Dutch language and civics component for the reunification request to be granted (Acosta and Geddes, 2013; Groenendijk, 2006). In 2015, the CJEU ruled that states could impose these kinds of integration tests so long as they did not make family reunification excessively difficult. Nevertheless, when the CJEU has shown willingness to constrain sovereignty, there is domestic political effect. For example, Bonjour and Vink (2013) found that CJEU rulings on EU family reunification policy that restricted the Netherland’s discretion fuelled a political backlash against Europeanization (2013, p. 404). Finally, the CJEU has also increased protections for asylum seekers in Europe, mitigating Member States’ restrictive implementation of various EU directives by enforcing shorter processing times, and insisting on interpretations that are compatible with the 1951 Refugee Convention and the ECHR. In turn, the EU Commission ‘has drawn upon [the CJEU’s judgments] to advance its more inclusive agenda in the field of asylum’ (Kaunert and Léonard, 2012, p. 1407). Nonetheless, the CJEU faces challenges to its ability to uphold high levels of protection for all asylum seekers. Specifically, in NF, NG and NM v. European Council (2017), the CJEU argued that it lacks jurisdiction to rule against the EU–Turkey deal given that the deal ‘was not adopted by one of the institutions of the EU’ but rather by the individual Member States (CJEU Press Release No. 19/17). The CJEU’s self-­limitation in regards to the EU– Turkey deal will likely result in refoulement, which is a violation of Article 19 of the EU Charter. It is also a sign of the Court’s caution around core sovereignty issues. While the two European Courts agree on much of their case law, the teleological nature of their decision-­making means that they do not always produce a consistent legal narrative; indeed, they occasionally diverge in their jurisprudence on migration. One major divergence involving asylum policy was resolved in February 2017. Under the principle of mutual trust, Dublin signatory states are all considered to be safe countries to which an asylum-­seeker can be transferred for processing. Although both the ECtHR and the CJEU had ruled that the principle of mutual trust was rebuttable in some instances, they initially provided different thresholds for when transfers could be prevented. The ECtHR ruled in Tarakhel v. Switzerland (2014) that the individual risk of inhuman or degrading treatment that an asylum-­seeker would face if transferred to another Dublin state was sufficient reason to halt a transfer. In contrast, the CJEU required there to be systemic deficiencies in a Dublin state’s asylum system. It was not until February 2017, in CK and Others v. Republika Slovenija, that the CJEU aligned itself with the ECtHR’s case law, leaving a gap of several years in which the two courts differed on this question. These different thresholds caused confusion about when Dublin transfers could be halted, and may have resulted in people being expelled to a state where they would face inhuman or degrading treatment (Vicini, 2015). 102

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The two courts still have different approaches to deciding when TCNs qualify for relief from deportation by an EU Member State (Morano-­Foadi and Andreadakis, 2011). Whereas the CJEU’s first consideration appears to be citizenship, the ECtHR’s principle concern is the extent to which an individual has assimilated into, or has ties with, the host country. The CJEU uses a hierarchy that privileges EU citizens and permanent resident TCNs over undocumented TCNs. In comparison, the ECtHR treats all individuals equally, regardless of whether they hold EU citizenship or are undocumented. In sum, while both the CJEU and the ECtHR can be considered ‘activist courts’ within the realm of migration, the CJEU has had greater success in constraining European states’ introduction of restrictive policies. Both courts’ jurisprudence has been more immigrant-­friendly than most European states’ policies, leading some scholars to argue their case law has provided a powerful source of legitimacy for domestic courts that choose to push back against policies that may be driven by anti-­immigrant popular sentiment (Tolley, 2012, p. 80). Indeed, Tolley (2012) argues, supranational law and courts have contributed to an expansion of domestic judicial power in an area that is traditionally viewed as one in which courts play a limited role. Advocates in some European states have used the two courts’ jurisprudence as a springboard from which to push for more liberal migration policies. However, while it is certainly true that the courts have delimited European states’ ability to adopt restrictive migration policies, it is also true that substantial cross-­national variation in these policies continue to exist. Much might be simplified if the EU were to accede to the Convention, thereby authorizing the ECtHR to have jurisdiction over those cases that involve alleged Convention violations. After all, the two courts have overlapping jurisdictions in many European states, and both hear migration cases. While the CJEU briefly entertained the option of acceding to the Convention, it ruled that it would first have to amend the Treaty on the European Union (Editorial Comments, 2015). No such amendment is envisioned on the horizon, so some variation and confusion between the two courts’ jurisprudence is likely to continue. This inconsistency has significant consequences for migrants.

Cross-­national variation In addition to the complicated landscape of overlapping supranational court jurisdictions, European migration law at the domestic level involves a striking degree of cross-­national variation. Most of the scholarship, both single country studies and comparative work, has focused on the domestic jurisprudence and policies of Germany, France and the UK. There is far less scholarship on the migration jurisprudence of other European states. The skewed nature of the literature is understandable to a degree. Germany, France and the UK are the major power players of Europe and all have rich traditions of constitutionalism, though they take three distinct forms. All three countries have relatively long histories of migration compared to other European states. However, the changing dynamics of migration in Europe beg the question of whether the lessons to be drawn from these three cases are generalizable to states with more recent experiences of migration, and more recent developments in the entrenchment of judicial power. Germany is in many ways an outlier in the European story of law and migration. Despite the fact that Germany has long been reluctant to consider itself a country of immigration (Joppke, 1997), it has gained a reputation for being the most generous migrant-­receiving state in Europe. This paradox is due in no small part to the role of courts and legal institutions. First, Germany has adopted all of the relevant UN and European human rights conventions into its law. It is also the only country in the world whose Constitution explicitly includes a right to asylum, one 103

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that is framed in broader terms than even the UN Refugee Convention. Article 16 of Germany’s Basic Law says that politically persecuted people shall ‘enjoy the right to asylum’. As Joppke observes, this is ‘a unique limit on state sovereignty’ (1997, p. 273). This provision gives potential refugees direct access to the German court system, resulting in a heavy migration caseload for the Federal Constitutional Court (FCC) (Soennecken, 2008). Further, Bonjour argues that advocates have used a legal language of rights that has come to dominate policy debates surrounding the claims of non-­citizens in Germany (2016). Advocates and migrants have had so much success using the German legal system that restrictionist politicians have repeatedly tried to limit access to the judiciary. First came a 1993 Constitutional amendment that limited the scope of Article 16 by harmonizing it with EU standards (Tolley, 2012). More recently, German politicians have passed measures that increase judges’ docket control, in the hopes that this would reduce asylum caseloads (Soennecken, 2016). Nevertheless, the FCC continues to interpret Germany’s law related to both asylum and the rights of non-­citizens in a way that outpaces the human rights jurisprudence of the ECtHR (Tolley, 2012). It remains to be seen what the long-­term effect of discursive rights frames and the endurance of Constitutional protections for migrants will look like in the face of renewed large-­scale migration to Germany resulting from the crisis in Syria. In the spring of 2017, a German court upheld a Federal Government policy that Syrians were not automatically entitled to refugee status, but could instead receive subsidiary protection that bars family reunification for two years. Since the 1970s, French courts have been fairly active in defending the rights of non-­citizens in the face of legislative attempts to limit those rights (Tolley, 2012). For example, in 1993, the Constitutional Council found a reference to asylum in the French Constitution to be a Constitutional right (Lambert et al., 2008). And yet, Kawar argues that increased litigation of migration issues in France has not had a substantive effect in terms of judicial decisions expanding migrants’ rights (2015). Rather, she argues that it has had an indirect effect on how the concepts of rights and the migrant are framed in political discourse. These rights frames are not always successful, as in October 2016, when a French court upheld the government decision to close the ‘Jungle’, a migrant camp in Calais, against the appeals of migrant rights advocacy groups. Thus, while France and Germany have both experienced an increased role for courts in migration matters in recent decades, France seems to be more of a mixed case than Germany, with judicial involvement playing a less clear cut role in protecting the rights of non-­citizens. The role of courts in migration is weaker still in the UK. Like Germany and France, the UK is a signatory to the Convention and (at least currently) is an EU Member State. While the UK lacks a written Constitution, the Human Rights Act of 1998 (HRA) codified the Convention into British law, and has taken on a semi-­Constitutional significance (Bogdanor, 2005). In fact, an increased judicial role in asserting and protecting the rights of non-­citizens pre-­dates the passage of the HRA, since it was observable in the 1980s and 1990s (Sterret, 1997). For example, in 1993, the British House of Lords decided the ‘highly significant’ M v. Home Office, in which the Lords ruled that government ministers had to adhere to procedural justice standards (Leyland 2007, p. 58). Judicial involvement in migration matters has only accelerated in the years since the HRA’s passage, but in a parallel with the French case, it rarely involves major jurisprudential shifts that substantively expand the rights of migrants (Hamlin, 2016). There have been a few high-­profile cases in which the Judicial Committee of the House of Lords, or (post 2009), the UK Supreme Court, have issued rulings that expand the rights of non-­citizens in significant ways (Tolley, 2012). However, the most significant impact of the empowerment of British courts over migration matters may not be jurisprudential. Instead, judicial involvement in migration has led to a major political backlash against domestic courts as well as the Strasbourg Court and, by extension, the Europeanization of British law (Hamlin, 2016, p. 458). 104

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Despite clear differences, a comparison of these three cases suggests that the judicial role in migration can have major political implications outside of the courtroom. In Germany, France and the UK, judicial involvement in migration has had an impact on politics beyond the rulings in individual cases. In Germany and France, judicial involvement has affected public discourse and the behaviour of advocates and bureaucrats, spurring them to adopt a more juridical frame. In the UK, the major public impact of judicial involvement in migration has been on a powerful link, perpetuated by the tabloid press, between the foreignness of migrants and the foreignness of European human rights law (Hamlin, 2016, p. 438).

Directions for future research Migration in Europe is a highly dynamic and politically inflammatory issue. There are many unsettled questions in relation to the role of the two European Courts and other legal institutions. Will European Courts harness their judicial power as final authorities over the law to produce a consistent case law that both defends and expands upon human rights? Will the CJEU continue to expand its authority to enforce uniform EU-­level migration policy, or will it strategically hold back when it meets with intense domestic political opposition? Will European Courts produce discordant interpretations of the law that result in an unequal patchwork of human rights protections? Is the latter more likely given that the CJEU is not acceding to the Convention? Ongoing research will need to examine how tensions around the recent increase in unauthorized migration affects the public response to judicial involvement in migration matters. Will domestic courts and policymakers work to keep pace with supranational courts in the face of political backlash to large-­scale arrivals? Will the ECtHR and CJEU respond to changing political winds by self-­limiting? For example, both the CJEU and the ECtHR have ruled that states should not send asylum seekers to Greece given the systemic deficiencies in its asylum system. However, the EU Commission has indicated that Dublin transfers to Greece should recommence once EU Member States commit to burden-­sharing. In response, both EU Courts asserted that their moratorium against transfers to Greece remained in place. Will the EU Commission heed the judiciary? Or will it push for Dublin transfers to Greece, going against both courts’ case law? Similarly, will EU Member States engage in additional bilateral or multilateral agreements in the future in an effort to adopt more restrictive migration policies and shirk their international obligations towards asylum seekers and refugees? Or will the CJEU find a creative way in which to bring international agreements like the EU–Turkey deal within its jurisdiction? Relatedly, more research is needed on the role the judiciary has played in the rise of populist anti-­EU and xenophobic parties in many European countries. Has judicial involvement in migration fuelled support for these movements in France, the Netherlands and beyond? In particular, there is a fascinating opportunity for ongoing research into the role that legal decisions about migration played in the ‘Brexit’ vote of June 2016. Furthermore, what is the future of law and migration in the UK, and the relationship between the UK and European law as the UK moves forwards with its plans to withdraw from the EU, and perhaps even repeal the HRA? There is also a major hole in the literature, and a need for much more research on the role of law and courts on migration in the lesser-­studied countries of Europe, particularly those which are recent hosts to large numbers of non-­citizens, such as Greece, Hungary and the Balkans. Since the bulk of the literature currently focuses on Germany, France and the UK, all three of which are signatories to the Convention and (for now) EU Member States, more research on countries that are outside the purview of one or more of these supranational courts would make an interesting point of comparison. 105

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Finally, future research on courts and migration should consider the recent findings by several scholars that judicial involvement in a policy area may not always have a direct doctrinal effect, but may still have notable impacts on political discourse. Evidence of this key factor in the relationship between law and migration may be found in many places where it has not yet been identified.

Conclusions Can the European case help to illuminate the larger question of whether judicial power over migration is increasing? Certainly, the European case provides evidence of this trend. Most notably, the power of the CJEU over migration is increasing because the EU has created supranational migration law and policy that must be enforced consistently. However, that commitment seems to be under some strain as the numbers of migrants coming to Europe continue at a high level. The power of the ECtHR is more contingent, but it too demonstrates that supranational courts can have an impact on migration; they need not always stay out of such matters. As for domestic courts, there has been increased involvement in migration issues in multiple different national settings. However, at both the national and supranational levels, it is not totally clear that judicial involvement always equals judicial power. Sometimes courts weigh in to affirm the legality of restrictive politics, and sometimes courts are simply doing large-­scale processing of migration cases without much jurisprudential impact. Rather than resolving debates in the literature about the role of courts in migration, the European case illustrates the important reality that the relationship between the concepts of migration and judicial power is highly contextual and particular. Even within Europe, a continent with a relatively powerful shared commitment to liberal values and individual human rights, as well as longstanding efforts to achieve harmonization of legal precedent, there is tremendous variation over time, cross-­nationally, and by sub-­issue. The European case also affirms the political nature of judicial decision-­making. Judges are aware of public opinion, and know that their decisions can be controversial. Regardless of whether these concerns affect courts preemptively by causing them to act in a restrained manner on migration matters, or whether these concerns emerge in reaction to judicial rulings that are perceived to represent an over-­extension of judicial authority, they are part of the story. The reinforcing and intersecting threads of anti-­EU, anti-­migrant and anti-­judge sentiments are particular to Europe, since no other part of the world has made such a commitment to regional unification and territorial protection. However, contemporary European dynamics illustrate a more general lesson that concerns about sovereignty and democratic legitimacy are a powerful force that shapes and constrains the relationship between courts and migration.

References Abass, A. and Ippolito, F., 2016. Introduction – Regional Approaches to the Protection of Asylum Seekers: an International Legal Perspective. In: A. Abass and F. Ippolito, eds. 2016. Regional Approaches to the Protection of Asylum Seekers: an International Legal Perspective. New York: Routledge. Ch. 1. Acosta, D. and Geddes, A., 2013. The Development, Application and Implications of an EU Rule of Law in the Area of Migration Policy. Journal of Common Market Studies, 51(2) pp. 179–193. Acosta Arcarazo, D., 2015. Civic Citizenship Reintroduced? The Long-­Term Residence Directive as a Post National Form of Membership. European Law Journal, 21(2) pp. 200–219. Anagnostou, D., 2010. Does European Human Rights Law Matter? Implementation and Domestic Impact of Strasbourg Court Judgments on Minority-­related Policies. The International Journal of Human Rights, 14(5) pp. 721–743.

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The role of courts and legal norms Balfour, A. D. J., 2005. Application of the European Convention on Human Rights by the European Court of Justice. Harvard Law School Student Scholarship Series, [e-­journal] Paper 4, pp. 1–57. Available at: http://lsr.nellco.org/harvard_students/4 [Accessed 10 April 2016]. Bogdanor, V., 2005. Constitutional Reform in Britain: A Quiet Revolution. Annual Review of Political Science, 8(1) pp. 73–98. Bonjour, S., 2016. Speaking of Rights: The Influence of Law and Courts on the Making of Family Migration Policies in Germany. Law & Policy, 38(4) pp. 328–348. Bonjour, S. A. and Vink, M. P. 2013. When Europeanization Backfires: The Normalization of European Migration Politics. Acta Politica, 48(4) pp. 389–407. Callewaert, J., 2009. The European Convention on Human Rights and European Union Law: A Long Way to Harmony. European Human Rights Law Review, 6 pp. 768–783. CJEU, 2017. Orders of the General Court in Cases T-­192/16, T-­193/16 and T-­257/16 NF, NG and NM v. European Council. [Press Release No. 19/17] 28 February 2017. Available at http://curia.europa.eu/ jcms/upload/docs/application/pdf/2017-02/cp170019en.pdf [Accessed 31 March 2017]. CJEU Press Release, 2017. No. 19/17, 2017. Dauvergne, C., 2008. Making People Illegal: What Globalization Means for Migration and Law. Cambridge: Cambridge University Press. Groenendijk, K., 2006. Family Reunification as a Right under Community Law. European Journal of Migration and Law, 8(2) pp. 215–230. Guiraudon, V., 2000. European Courts and Foreigners’ Rights: A Comparative Study of Norms Diffusion. International Migration Review, 34(4) pp. 1088–1125. Guiraudon, V. and Lahav, G., 2000. A Reappraisal of the State Sovereignty Debate: the Case of Migration Control. Comparative Political Studies, 33(2) pp. 163–195. Hamlin, R., 2016. Foreign Criminals, the Human Rights Act, and the New Constitutional Politics of the United Kingdom. Journal of Law and Courts, 4(2) pp. 437–461. Hollifield, J., 2004. The Emerging Migration State. International Migration Review, 38(3) pp. 885–912. Joppke, C., 1997. Asylum and State Sovereignty: A Comparison of the United States, Germany, and Great Britain. Comparative Political Studies, 30(3) pp. 259–298. Joppke, C., 2001. The Legal-­Domestic Sources of Immigrant Rights: The United States, Germany, and the European Union. Comparative Political Studies, 34(4) pp. 339–366. Kaunert, C. and Léonard, S., 2012. The Development of the EU Asylum Policy: Venue-­Shopping in Perspective. Journal of European Public Policy, [e-­journal] 19(9), pp. 1396–1413. Available at: http://dx.doi. org/10.1080/13501763.2012.677191. Kawar, L., 2015. Contesting Immigration Policy in Court: Legal Activism and Its Radiating Effects in the United States and France. New York: Cambridge University Press. Kelemen, R. D. and Pavone, T., 2016. Mapping European Law. Journal of European Public Policy, 23(8) pp. 1118–1138. Keller, H. and Stone Sweet, A. eds, 2008. A Europe of Rights: The Impact of the ECHR on National Legal Systems. New York: Oxford University Press. Lambert, H., Messineo, F. and Tiedemann, P., 2008. Comparative Perspectives of Constitutional Asylum in France, Italy, and Germany: Requiescat in Pace? Refugee Survey Quarterly, 27(3) pp. 16–32. Leyland, Peter. 2007. The Constitution of the United Kingdom: A Contextual Analysis. Portland, OR: Hart. Morano-­Foadi, S. and Andreadakis, S., 2011. The Convergence of the European Legal System in the Treatment of Third Country Nationals in Europe: The ECJ and ECtHR Jurisprudence. The European Journal of International Law, 22(4) pp. 1071–1088. Motomura, H., 2008. Immigration outside the Law. Columbia Law Review, 108(8) pp. 2037–2097. No author., 2015. Editorial Comments: The EU’s Accession to the ECHR – a ‘NO’ from the ECJ! Common Market Law Review, 52(1) pp. 1–16. Sassen, S., 1999. Beyond Sovereignty: De Facto Transnationalism in Immigration Policy. European Journal of Migration and Law, 1(2) pp. 177–198. Schain, M., 2008. The Politics of Immigration in France, Britain, and the United States. New York: Palgrave Macmillan. Soennecken, D., 2008. The Growing Influence of the Courts Over the Fate of Refugees. Review of European and Russian Affairs, 4(2) pp. 55–88. Soennecken, D., 2016. The Paradox of Docket Control: Empowering Judges, Frustrating Refugees. Law & Policy, 38(4) pp. 304–327.

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Cases Joined Cases T-­192/16, 5–193/16 and 5–257/16 NF, NG and NM v. European Council [CJEU 28 February 2017]. Case C-­578/16 CK and Others v. Republika Slovenija [CJEU 16 February 2017]. Case C-­329/11 Alexandre Achughbabian v. Préfet du Val-­de-Marne [CJEU 6 December 2011]. Case C-­61/11 El Dridi [28 April 2011]. M v. Home Office [1994] 1 AC 377, United Kingdom House of Lords. Tarakhel v. Switzerland, [ECtHR 4 November 2014] App. No. 29217/12.

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9 EU Institutions Venue for restrictions or liberal constraints? Ariadna Ripoll Servent

Introduction Why should we consider the role of the European Union (EU) institutions in migration governance worthy of attention? Certainly, migration is a type of policy still largely attached to the idea of member states’ sovereignty and their ability to control who enters and leaves their territory. Nevertheless, migration policies (or at least parts of them) have been slowly Europeanised and are largely framed by decisions made in supranational settings. In the last decade, the European Parliament (EP), the European Commission (Commission) and the Court of Justice of the European Union (CJEU) have grown into policy-­making venues and contributed to approximating domestic policies and cooperation in the area of migration.1 Despite recent institutional changes, which have given more power to EU supranational institutions, the evolution of migration politics in the EU has long been characterised by slow integration and intergovernmental policy-­making modes. Cooperation originated in intergovernmental networks situated outside the EU structures, which maintained the role of member states and maintained their control over policy-­making until the mid-­2000s. As a result, the politics of EU migration have been dominated by traditional integration theories, notably intergovernmental explanations looking at why and how (despite the sensitive nature of these policies) member states decided to delegate competences to the EU level. Notably, Guiraudon’s ‘venue-­shopping’ thesis (2000) examined the two-­level games played by member states, which tried to escape the constraining effects of national institutions by uploading contested issues to the EU level. The intergovernmental character of EU decision-­making left member states in control of policy outcomes and sidelined supranational EU institutions from negotiations. This thesis shaped the academic debate on EU migration policies for the upcoming decades. However, the treaty changes introduced in Amsterdam (which took effect only in 2005) and Lisbon (2009) strengthened the formal role of EU supranational institutions, with the consequence that the ‘venue-­shopping thesis’ has largely lost its explanatory power. As a result, academics have started to look beyond explanations focused on the empowerment of EU institutions and looked rather at its effects. In this context, the ‘liberal constraint’ thesis posits that, with the shift of power to the supranational level, member states are increasingly placed under new liberal constraints, which prevent them from uploading their restrictive preferences to the EU level and using it as a way to escape domestic controls. This chapter 109

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examines the relevance of the ‘liberal constraint’ thesis as well as those of its critics, which have used institutionalist and governance approaches to underline some of its conceptual and methodological weaknesses. To this effect, the chapter introduces the main debates on EU migration governance among different strands of integration theories and goes on to examine the assumptions of the ‘liberal constraint’ thesis more in-­depth by assessing the policy preferences of the main EU supranational institutions. Finally, the conclusion discusses some of the main weaknesses in the current academic literature and proposes some avenues for future research.

Integration theories and beyond: from venue-­shopping to liberal constraints Literature on EU migration has been characterised by a strong emphasis on the intergovernmental nature of the policy field. As a result, most studies have concentrated on finding explanations for the process of integration and gradual supranationalisation. One of the earliest theoretical explanations was provided by Guiraudon’s ‘venue-­shopping’ thesis. With it, Guiraudon (2000) argued that member states escaped the constraining effects of national institutions by uploading contested issues to the EU level. This was made possible by the formal treaty provisions, which left member states in control of policy outcomes and largely excluded supranational EU institutions. This policy-­making mode made it easier for ministries of justice or home affairs to by-­pass other executive actors linked to this policy field, such as ministries of employment or social affairs, as well as other domestic actors that might contest their restrictive aims (national courts, opposition parties, interest groups, citizens, etc.). Later on, Lavenex (2006) expanded this argument by noting that, as communitarisation advanced and the EU venue became more constrained (e.g. by giving a bigger say to the Commission), member states shifted policy-­making outwards. The external dimension is still dominated by intergovernmental rules and is, therefore, ideal to deal with highly contested policies, such as borders and migration controls. With the institutional changes brought by the Treaty of Amsterdam and Lisbon, a new strand of literature started to emerge in the field of EU migration policies. It generally argued that the shift of power from member states to the supranational level led to the introduction of new liberal constraints on national politics. Member states were thereby hindered in their efforts to upload their restrictive preferences to the EU level and use it as a way to escape domestic constraints. The ‘liberal constraint’ thesis explicitly or implicitly assumed that supranational EU institutions adopted a more liberal standpoint on migration than member states’ governments, which would then make the adoption of rights-­enhancing policy outputs more likely. For instance, when examining the area of asylum policies, Kaunert and Léonard affirmed that the entry into force of Lisbon and the consequent empowerment of the EP ‘reinforced the liberal character of the EU asylum venue, which renders the adoption of more restrictive asylum provisions less likely’ (2012, p. 1405). Similarly, the Commission and the CJEU were seen as more liberal and supportive of migrants’ rights. For instance, Block and Bonjour stated: the European Commission and the European Court of Justice (CJEU) now play important roles in ensuring the correct interpretation and application of Community legislation. Also in the field of family migration, important impulses have recently emanated from these institutions, largely going in a liberal direction. Since the supranational EU institutions limit Member States’ sovereign room of manoeuvre and have even obliged them to change their policies, we refer to these supranationally-­driven dynamics of Europeanisation as constraining. (2013, p. 219)

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Therefore, this thesis supports the assumption that supranational EU institutions had both a constraining and liberal effect (Acosta and Geddes, 2013; Block and Bonjour, 2013; Bonjour and Vink, 2013; Kaunert and Léonard, 2012; Thielemann and El-­Enany, 2010). This strand of the literature has raised two important questions. First, have EU supranational institutions become more relevant? This question relates directly to EU integration theories (i.e. intergovernmentalism and neofunctionalism) and argues that changes in the formal rules have led to a shift in the balance of power between intergovernmental and supranational actors. While this has been the dominant scholarly view in recent years (Bonjour et al., 2017), it is not undisputed, especially in the context of the recent migration crisis. New intergovernmentalists have remarked on the growing importance of the European Council in the resolution of the crisis and the trend towards further integration without supranationalisation (Maricut, 2016). Therefore, despite some advances in cooperation – such as the introduction of voluntary systems of relocation or the delegation of more powers to EU agencies such as Frontex and the European Asylum Support Office (EASO) –, the Commission and the European Parliament have been ignored in key decision-­making moments, such as in the negotiation of the EU–Turkey deal (Trauner, 2016). More generally, longitudinal comparative analyses of EU migration policies have shown that member states continue to (informally) dominate policy-­making due to their expertise and direct involvement in the implementation of EU policy outputs (Trauner and Ripoll Servent, 2016). The second question relates to the other main assumption of the ‘liberal constraint’ thesis, namely, to what extent are EU supranational institutions liberal? There, academic findings are even less consistent. For instance, Bendel et al. (2011) considered that, while member states might not be able to play the EU ‘venue’ as in the past, a comparison of several sub-­policy areas showed no decrease in the level of restrictiveness and control. Similarly, Trauner and Ripoll Servent (2015, 2016) observed very little change in the content of EU migration policies. Since this has been the most disputed question, both theoretically and empirically, the next section examines the role of the three main supranational EU institutions in the area of migration in order to evaluate to what extent we can consider them more liberal than member states.

To what extent are EU supranational institutions liberal? The European Commission The Commission has traditionally been seen as a strong protector of both migrant rights and further integration. The high point of its liberal tradition came with the Tampere Programme (European Council, 1999). Since then, it has often had to moderate and revise its proposals, which can be attributed to its attempts to anticipate member states’ positions or to the presence of more restrictive-­oriented units inside DG Home (cf. Scipioni, 2015). Its position gives it a very particular type of power. On the one hand, as agenda-­setter, it can strategically frame solutions to particular policy problems. For instance, Menz (2015) analysed how the Commission framed the seasonal workers directive so that it stressed the issue of rights, rather than numbers. In addition, it linked the proposal to the Lisbon and Europe 2020 Agendas in order to present it as an economic priority, rather than a migration matter. Despite its agenda-­setting power, the Commission is not a decision-­maker and it cannot veto decisions or force more liberal outcomes. Therefore, the Commission is often divided between a wish to become more politically influential, while still needing to heed the wishes of (increasingly populist) national governments. The Commission is thus limited in its attempts to change policy outputs and often has had to revise its proposals to satisfy the more restriction-­oriented member states. 111

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In addition, the Commission is not a unitary institution. Scipioni (2015) emphasised how internal (bureaucratic) dynamics may explain the variation in Commission positions across policy fields. For instance, while the Commission tends to adopt more right-­enhancing stances on asylum issues, it portrays more restrictive preferences with regard to visa and border policies. What is certain is that the Commission has heightened its political profile in the last legislatures, especially since 2014, when the EP managed to reinforce the link between European elections and the choice of Commission President. As a result, the Commission Vice-­Presidents have become more important political players, adding an additional policy-­shaping layer with strong veto powers. Indeed, instead of strengthening proposals created from the bottom-­up, vice-­ presidents often follow their own political agenda and ambition, so that policies are increasingly shaped ‘from above’. The recent crisis has shown more political entrepreneurship from President Juncker and Vice-­President Timmermans than from Avramopoulous, the Home Affairs Commissioner in charge of migration policies. Certainly, that might come as a response to the feeling of urgency and exceptionality raised by the crisis, but it also shows new power dynamics and a stronger role of hierarchies in the current Commission.

The European Parliament One of the major expectations of communitarisation was raised by empowerment of the EP, which became a co-­legislator alongside the Council after 2005. Since the EP had often adopted more rights-­based positions than member states (Hix and Noury, 2007), many considered this institutional change a window of opportunity to raise standards and liberalise migration policies. However, the decisions taken by the EP in the last decade have generally failed to fulfil these expectations (Ripoll Servent, 2015). Certainly, one cannot say that it has actively contributed to rendering outputs more restrictive, but neither has it tried to change the rationales and directions of key policy instruments (Trauner and Ripoll Servent, 2015). If we look, for instance, at the area of asylum, the EP’s position has evolved since the shift to co-­decision. During the reform of the Common European Asylum System (CEAS, concluded in 2013), the EP managed to raise the standards and slightly reduce the flexibility of member states, but it was unable (or unwilling) to re-­open major debates, such as rules for sharing responsibility or reception conditions. On the contrary, in some cases, the EP contributed to legitimising and entrenching contested principles like the detention of asylum-­seekers. These unexpected shifts resulted from various factors: member states were reticent to change their domestic practices or raise their expenditures on asylum-­seekers and refugees; at the same time, the EP wanted to show it could behave in a more consensual manner now that it acted as a co-­legislator – a factor that was used strategically by the centre-­right political forces in Parliament to forge an alliance with the Council (Ripoll Servent, 2015, chap. 8; Ripoll Servent and Trauner, 2014). Indeed, one of the main reasons behind the change in the Parliament’s position has been the new political balance that has emerged in the last two legislatures. Before 2009, the left-­wing and liberal forces could command a majority in the EP; however, since the introduction of the co-­decision procedure in 2005, which gave the EP a veto power in migration policies, the EP has not enjoyed a clear political majority. This means that winning coalitions are formed on a case-­by-case basis. This dynamic has become particularly challenging for those parties situated at the centre of the political spectrum – namely, the liberals and, increasingly, the social-­democrats, who often need to sacrifice their positions (i.e. more liberal migration policies) in order to find a sufficient majority. Therefore, the European People’s Party (Christian-­democrats) has become the leading force in the EP’s committee dealing with migration matters (civil liberties – LIBE – committee), since it can force the other parties to come closer to its more restrictive positions. 112

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This has meant that the committee has shifted from a left-­wing and liberal majority towards a more conservative and security-­oriented one. Since the EP plenary tends to follow the recommendations of the committees, this shift has led to a generalised change in the voting behaviour of the Parliament as a whole. Since 2005, coalitions in the EP have been led by Christian-­ democrats, which are closer to national governments and the Commission President. Therefore, policy-­making in the area of migration has become more consensual and security-­oriented (Ripoll Servent, 2015). The rise in the number of Eurosceptic and radical Members of the European Parliament (MEPs) in the 2014 elections has made it even more difficult to form winning coalitions and has increased the pressure on ‘mainstream’ political groups to accept compromises and policy solutions that maintain the status quo, which makes a shift towards more liberal policies increasingly difficult.

The Court of Justice of the European Union Finally, national and European courts have become the main liberal constraints. Many of the policy changes that we observed in the area of migration respond to limitations to restrictive policies introduced by case law. A point of reference has always been the jurisprudence of the European Court of Human Rights (ECtHR), which, despite not being an EU institution, has largely framed the debate and influenced the EU courts. When it comes to the role of the CJEU and national courts, the body of jurisprudence remains limited, due to the absence of judicial oversight over EU migration policies until 2005 (see Hamlin and Mellinger’s contribution to this volume on the role of the CJEU and its relation with the ECtHR). There are three considerations that we should keep in mind when examining the role of the courts. First, courts are reactive institutions; they cannot initiate cases. Since it usually takes some time until individual cases reach European courts, it is not surprising that we have not yet seen many cases related to EU migration law. The scarcity of rulings can also be due to practices of member states, which have actively tried to pre-­empt rulings and the development of constraining jurisprudence. For instance, member states tried to stop the emergence of a body of European case law linked to the validity of ‘integration abroad’ measures in family reunification (Bibi Mohammad Imran v. Minister van Buitenlandse Zaken, Case C-­155/11 PPU, [2011]); to this effect, they opted for a practice of ‘selective lenience’, which meant that they would stop using restrictive practices as soon as there was a risk that migrants would start court proceedings against them (Acosta and Geddes, 2013; Block and Bonjour, 2013). Despite these delaying tactics, the Court produced its first ruling on this matter in 2015, accepting the principle of ‘integration abroad’ but underlining that it should be aimed at facilitating integration, rather than selecting migrants (Minister van Buitenlandse Zaken v. K, [2015]). Second, Wasserfallen (2010) noted that the influence of the CJEU has often been overstated, especially when it comes to assessing the effective implementation of its jurisprudence. He considered that the Court is at its most influential when its opinions were taken up by other actors like the Commission or the EP and embedded in new policy reforms. Indeed, we have seen such instances in the recast of the CEAS, where case law from the ECtHR served to underpin and strengthen many attempts to liberalise difficult provisions, such as the right to ‘suspensive effect’ in the Procedures Directive (Ripoll Servent and Trauner, 2014, p. 1148; see also Kaunert and Léonard, 2012, pp. 1406–1407). However, we have also seen numerous instances where the jurisprudence of the Courts has been ignored or interpreted in further legislative reforms in such a way as to by-­pass its effects. Acosta and Geddes (2013, p. 186) noted that the jurisprudence that started with El Dridi and aimed to limit the cases in which irregularly staying migrants could be detained when awaiting their expulsion had been immediately implemented by the 113

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Italian government – in a way that did not actually change the old practices. Thus, member states are still able to find definitions that fit their purposes and often ignore or by-­pass the jurisprudence of the courts. The last point pertains to the limits in the CJEU’s ability and willingness to effect deeper ‘liberalising’ changes. A first limitation comes from the nature of the courts, which are called to interpret specific points in law. Therefore, although they may introduce specific constraints in the application of migration policies, they are generally unable (or unwilling) to address the larger questions behind such queries. For instance, a recent case on ‘voluntary returns’ has shifted the burden of proof to member states, which now need to demonstrate that someone is at risk of absconding before they can deny them the right to leave voluntarily. At the same time, it does not address the larger question of whether it is legitimate to expulse third-­country nationals from the territory of member states (Peers, 2015). Second, we have seen in some occasions how, even if the Court is willing to expand the rights of migrants, it has difficulties in doing so. For example, while family reunification rights are well established for those that exercise freedom of movement, they have been more difficult to secure for ‘sedentary’ citizens and third-­country nationals (Staver, 2013). Finally, even if migration policies now enter into the remit of EU law, we should not assume that the CJEU will always be willing to support the rights of migrants. This is, again, an assumption that has to be put to the test.

Conclusion and research agenda Although everybody seems to agree that the venue-­shopping thesis has lost explanatory power in the current institutional framework, there are still major disagreements on what this means for the role and impact of EU institutions. The ‘liberal constraints’ thesis has tended to consider them a positive influence that limits member states’ capacity to introduce more restrictive measures (Bonjour and Vink, 2013; Thielemann and El-­Enany, 2010; Thielemann and Zaun, 2017). Others have pointed to the limited influence that EU institutions continue to exert in the policy-­making process and how difficult it has proved to shift the restrictive core of EU migration policies (Trauner and Ripoll Servent, 2016). These differences can be explained by three weaknesses in this research area: concepts, agency and governance (see also Bonjour et al., 2017). The first point underlines the need for better concepts and measurements. Indeed, here we face the same challenge that most research dealing with policy change and stability encounters, namely the need for precise definitions that help us operationalise or measure our main concepts. Many of the disagreements we have come across derive from a different understanding of change, the sources of change, and how to measure it. While, for some, any type of change that supports rights-­based approaches is evidence for more liberal policy outcomes, others consider it necessary to have a higher hurdle to label changes as liberal. In practice, some have focused on before/after situations and examined whether a new legal instrument or a court ruling established by EU institutions has helped to introduce elements that support migrants’ rights. For instance, Thielemann and El-­Enany (2010, p. 219) considered the introduction of subsidiary protection in the 2008 Commission proposal (COM(2008) 815 final) for a recast asylum directive on receptions conditions as having liberalising effects. However, this interpretation misses the fact that the introduction of subsidiary protection was confirming a practice already existing in member states. In this example, should we consider that the extension of reception conditions to recipients of subsidiary protection is a liberal constraint originating from supranational EU institutions or simply a feedback loop from member states’ practices? That is why others preferred to adopt methods that allowed them to define more accurately what it means to see 114

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(liberal) change and whether this change originates from EU supranational institutions. Here, we face three connected methodological challenges: First, how do we measure change? Ripoll Servent and Trauner (2014) proposed to look into policy analysis tools to help us reflect on whether changes affect core principles governing that policy area or only secondary matters. Second, what do we compare it to? It is important to identify the status quo or ex ante situation in order to specify whether we should compare e.g. a new EU policy to existing domestic practices, to previous EU policies or to some normative (theoretical) standards. Also, we need to consider whether we can isolate changes (e.g. better reception conditions) or whether we need to look at these provisions in a global manner (e.g do reception conditions even matter if other aspects of EU asylum law make it extremely difficult to claim asylum?). Finally, how do we operationalise our basic concepts, i.e. ‘restrictive’ and ‘liberal’? The definition of ‘liberal’ and ‘restrictive’ remains an important gap in the literature and a challenge that needs to be tackled in the future if we want more productive debates (Bonjour et al., 2017). Although these may sound like small, technical issues, methodological matters have a direct impact on our standards of comparison, that is, evaluating what changes, how much it changes and why it changes. The second gap refers to the balance between structure and agency when discussing policy-­ making and the relative power of EU institutions. In general, the debates about the relative restrictiveness or liberality of institutional actors have been based on assumptions lacking any empirical backing. This is problematic on two accounts. First, as Kaunert and Léonard (2012, pp. 1399–1400) pointed out, both the ‘venue-­shopping’ and ‘liberal constraint’ theses assume that member states have more restrictive preferences than the Commission and the EP and that these preferences have remained constant over time. We have only a small number of studies that look into this question. For instance, Bonjour and Vink (2013) did confirm this assumption in the case of the Netherlands, where preferences shifted but only to become more restrictive. Roos (2013), in contrast, made the observation that member states did strive for more liberal or expansive EU policies when the latter concerned migrants – notably high-­skilled migrants – seen as contributing positively to their national economies and welfare states. Therefore, we need to unpack this assumption and provide more comparative and longitudinal analyses on member states’ preferences in order to see whether domestic factors such as elections, labour market situation or public opinion might play a role in their level of restrictiveness. The second problematic point linked to this assumption is that we have tended to treat EU institutions as black boxes – speaking about ‘the’ European Commission or ‘the’ EP. This has helped to reduce complexity, but it also obscures important internal dynamics that may explain why certain policies (do not) change. Therefore, we need to pay more attention to the actors behind these processes and focus on identifying the mechanisms (or strategies) they use to produce or hinder change (Ripoll Servent and Busby, 2013; Saurugger, 2013). This means being more accurate about where ideas come from, who champions or defies these ideas, who pushes them onto the agenda, and how and why some actors are more successful than others in doing so. We need to continue unpacking the main policy-­making institutions, looking inside the EP, Commission, Council and European Council and considering their internal conflicts and how they affect the processes of policy-­making and policy change. The third challenge relates to governance, namely, the need to think more dynamically about policy-­making in a multi-­level and multi-­venue system. First, many of the divergences in our empirical analyses stem from a tendency to compartmentalise the policy cycle and the different levels of governance. Many discussions have focused on policy outputs at the EU level, thereby forgetting how crucial the implementation stage might prove for policy outcomes. For example, we have cases where policy outputs have failed to have any practical effect, as is the 115

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case of the Temporary Protection Directive. Although this instrument might have proved helpful in managing the migration crisis of 2015–2016, the hurdles to activate it were so high that member states never managed to use it. Similarly, the implementation of EU law might assume a life of its own and lead to unexpected consequences. For instance, although member states have used EU family migration laws to introduce changes in their national practices that might have been otherwise difficult to implement, they have been increasingly constrained by the activity of national and European courts, which have set limits to their efforts to cut down family reunification and copy each other’s restrictive practices (Bonjour and Vink, 2013; Kostakopoulou and Ripoll Servent, 2016). We need, therefore, to take a more dynamic view of multi-­level governance and how it can create multiple points of influence and feedback loops throughout the policy process. Second, proponents of the ‘liberal constraint’ thesis have rightly pointed out the need to break down the venues of migration policies (e.g. look at policy-­ making dynamics in asylum as a separate venue from border policies), while keeping in sight potential ‘co-­dependencies’ (i.e. how border policies might pre-­empt the liberal aspects of asylum policies) (Kaunert and Léonard, 2012). However, this might prove very difficult to implement if different types of migration policies are treated as separate areas of research. We need, thus, to keep in mind that this area is just that: an interconnected whole. As difficult as it would be trying to understand EU politics without domestic politics, it would also be inadequate to think of studying asylum as a field isolated from borders, irregular migration and even organised crime. The recent migration crisis has shown the importance of studying migration policies and the role that EU institutions play in their management in a comprehensive way. The crisis cannot be understood without looking at the failure of EU institutions to break away from the Dublin system and, for instance, introduce legal channels of migration instead. The attempt to solve problems by externalising them to third-­countries like Turkey is a clear consequence of these long-­term failures. We are facing now, more than ever, a new empirical and academic challenge and to address it, we need to learn lessons from the past and try to fill the remaining empirical, theoretical and methodological gaps.

Note 1 This chapter builds on a previous publication co-­authored with Saskia Bonjour and Eiko Thielemann. For those interested on how this debate can contribute to a new research agenda on EU migration politics, please see Bonjour et al. (2017).

References Acosta, D. and Geddes, A., 2013. The Development, Application and Implications of an EU Rule of Law in the Area of Migration Policy. Journal of Common Market Studies, 51(2), pp. 179–193. Bendel, P., Ette, A. and Parkes, R. eds, 2011. The Europeanization of Control: Venues and Outcomes of EU Justice and Home Affairs Cooperation. Münster: LIT Verlag. Bibi Mohammad Imran v. Minister van Buitenlandse Zaken, Case C-­155/11 PPU [2011] Available at: http:// curia.europa.eu/juris/document/document.jsf?text=&docid=126589&pageIndex=0&doclang=en&m ode=req&dir=&occ=first&part=1&cid=222605 [Accessed 3 July 2015]. Block, L. and Bonjour, S., 2013. Fortress Europe or Europe of Rights? The Europeanisation of Family Migration Policies in France, Germany and the Netherlands. European Journal of Migration and Law, 15(2), pp. 203–224. Bonjour, S., Ripoll Servent, A. and Thielemann, E., 2017. Beyond Venue Shopping and Liberal Constraint: A New Research Agenda for EU Migration Policies and Politics. Journal of European Public Policy, 25 (13), pp. 409–421. DOI: 10.1080/13501763.2016.1268640. Bonjour, S. and Vink, M., 2013. When Europeanization Backfires: The Normalization of European Migration Politics. Acta Politica, 48(4), pp. 389–407.

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EU institutions European Council, 1999. Tampere European Council – Presidency Conclusions. Available at: www.consilium. europa.eu/uedocs/cms_data/docs/pressdata/en/ec/00200-r1.en9.htm [Accessed 7 August 2011]. Guiraudon, V., 2000. European Integration and Migration Policy: Vertical Policy-­Making as Venue Shopping. Journal of Common Market Studies, 38(2), pp. 251–271. Hix, S. and Noury, A., 2007. Politics, Not Economic Interests: Determinants of Migration Policies in the European Union. International Migration Review, 41(1), pp. 182–205. Kaunert, C. and Léonard, S., 2012. The Development of the EU Asylum Policy: Venue-­shopping in Perspective. Journal of European Public Policy, 19(9), pp. 1396–1413. Kostakopoulou, D. and Ripoll Servent, A., 2016. The Rule of Life: Family Reunification in EU Mobility and Migration Laws. In: M. Fletcher, E. Herlin-­Karnell and C. Matera, eds, The European Union as an Area of Freedom, Security and Justice. Abingdon, Oxon; New York, NY: Routledge, pp. 246–262. Lavenex, S., 2006. Shifting Up and Out: The Foreign Policy of European Immigration Control. West European Politics, 29(2), pp. 329–350. Maricut, A., 2016. With and Without Supranationalisation: The Post-­Lisbon Roles of the European Council and the Council in Justice and Home Affairs Governance. Journal of European Integration, 38(5), pp. 541–555. Menz, G., 2015. Framing the Matter Differently: The Political Dynamics of European Union Labour Migration Policymaking. Cambridge Review of International Affairs, 28(4), pp. 554–570. Minister van Buitenlandse Zaken v. K [2015]. Peers, S., 2015. Jump before You’re Pushed: The CJEU Rules on the Voluntary Departure of Irregular Migrants. EU Law Analysis. Available at: http://eulawanalysis.blogspot.de/2015/06/jump-beforeyoure-pushed-cjeu-rules-on.html?utm_source=feedburner&utm_medium=email&utm_campaign=Fe ed:+EuLawAnalysis+(EU+Law+Analysis) [Accessed 3 July 2015]. Ripoll Servent, A., 2015. Institutional and Policy Change in the European Parliament: Deciding on Freedom, Security and Justice. Basingstoke: Palgrave Macmillan. Ripoll Servent, A. and Busby, A., 2013. Introduction: Agency and Influence inside the EU Institutions. European Integration online Papers (EIoP), 17(Special Issue 1), pp. 1–22. Ripoll Servent, A. and Trauner, F., 2014. Do Supranational EU Institutions Make a Difference? EU Asylum Law before and after ‘Communitarization’. Journal of European Public Policy, 21(8), pp. 1142–1162. Roos, C., 2013. How to Overcome Deadlock in EU Immigration Politics. International Migration, 51(6), pp. 67–79. Saurugger, S., 2013. Constructivism and Public Policy Approaches in the EU: From Ideas to Power Games. Journal of European Public Policy, 20(6), pp. 888–906. Scipioni, M., 2015. Delegation to the European Commission in EU Migration Policy: Expertise, Credibility, and Efficiency. [Ph.D.] Birkbeck, University of London. Available at: http://bbktheses.da.ulcc.ac.uk/161/ [Accessed 21 June 2016]. Staver, A., 2013. Free Movement and the Fragmentation of Family Reunification Rights. European Journal of Migration and Law, 15(1), pp. 69–89. Thielemann, E. and El-­Enany, N., 2010. Refugee Protection as a Collective Action Problem: Is the EU Shirking its Responsibilities? European Security, 19(2), pp. 209–229. Thielemann, E. and Zaun, N., 2017. Escaping Populism – Safeguarding Minority Rights: Non-­Majoritarian Dynamics in European Policy-­Making. Journal of Common Market Studies. DOI: 10.1111/ jcms.12689. Trauner, F., 2016. Asylum Policy: the EU’s ‘Crises’ and the Looming Policy Regime Failure. Journal of European Integration, 38(3), pp. 311–325. Trauner, F. and Ripoll Servent, A., 2015. Policy Change in the Area of Freedom, Security and Justice: How EU Institutions Matter. London: Routledge. Trauner, F. and Ripoll Servent, A., 2016. The Communitarization of the Area of Freedom, Security and Justice: Why Institutional Change does not Translate into Policy Change. Journal of Common Market Studies, 54(6), pp. 1417–1432. Wasserfallen, F., 2010. The Judiciary as Legislator? How the European Court of Justice Shapes Policy-­ making in the European Union. Journal of European Public Policy, 17(8), pp. 1128–1146.

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10 The Party Politics of Migration  Pontus Odmalm

Introduction The populist radical right (hereafter, PRR) and certain ideological tensions the immigration ‘issue’ gives rise to (Odmalm, 2014) currently challenge mainstream capabilities to deal with a number of migration related ‘crises’. These dilemmas most obviously concern on-­going (and arguably large-­scale) influxes of asylum seekers, clandestine and family reunification-­type migrants, and the links made between immigration, radicalisation and terrorism (Lazaridis, 2016). Just as important, but perhaps less obvious, is whether mainstream parties can – and should – capitalise on an increasingly polarised electorate? And what can they feasibly do to stem the outflow of voters to the PRR? These developments raise several important questions for scholars, which are surveyed in this chapter. First, why are immigration and integration such thorny issues for political parties to engage with? Second, are these challenges country – or region – specific in any way? In particular, is there a specific European take on these questions compared to research conducted elsewhere, particularly in North America? Third, are these specificities reflected in research bridging the divide between ‘parties and elections’ scholarship and ‘migration studies’? And, finally, is studying the party politics of migration (still) important, and in which direction are such studies heading?

The party politics of migration? ‘Party politics’ constitutes a long-­standing staple of the discipline but the ‘party politics of migration’ is a more recent addition to the political science literature. Explaining parties’ engagement with immigration matters has often been secondary compared to the attention paid by migration scholars to states, policy-­makers and public opinion. There has thus been a distinct gap in the field, and one needed to look quite hard for studies that linked parties with the immigration issue. This gap not only concerns how immigration and integration play out within the parties – that is, whether these issues are essentially different from other types of questions parties compete on – but it also concerns the impact of migration politics on broader party system dynamics. In some respects, this omission can be understood as a result of the predominant approaches used in the field of ‘migration studies’, and to the questions migration scholars usually ask. The focus has typically been on understanding (and explaining) state responses to 118

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increased mobility and processes of integration. Yet the actors that ultimately make and shape policy, namely, the political parties, have been either absent or portrayed as playing minor roles. As Bale (2008: 316) puts it, ‘the political science communities working on asylum and immigration, on the one hand, and parties, on the other, have traditionally sat at separate tables’. Yet sometime around the mid-­2000s, several important developments effectively brought these two communities closer together. The PRR stopped being a mere irritant and now constitutes a serious threat to centre-­right as well as to centre-­left parties (see for instance Bale et al., 2010; Green-­Pedersen and Krogstrup, 2008; Meguid, 2005; Norris, 2005; van Spanje, 2010). This metamorphosis of the PRR, which involved a blend of welfare and labour market chauvinism with conservative values and nationalism, has allowed the PRR to eat into the voting groups of conservative and social democratic-­type parties (Gruber and Bale, 2014; Rooduijn, 2015; Rydgren, 2013; van der Brug and van Spanje, 2009). The PRR party family also challenges established orders of ‘doing politics’ by emphasising how a ‘corrupt elite’ has largely by-­passed the general will of ‘the people’ (Mudde, 2004, 2007). These challenges mainstream parties are currently subjected to raise several important questions. Scholars have thus begun to note an increased inter-­dependence between mainstream and niche contenders. The ‘threat’ posed by the PRR concerns several strategic decisions mainstream parties need to make in order to not lose out electorally (see e.g. Art, 2007; Bale, 2003; De Lange, 2012; Williams, 2006). How are they supposed to position themselves in the face of an increasingly successful – anti-­immigration – challenger? What electoral risks are associated with accommodative, adversarial or dismissive strategies that mainstream parties may consider undertaking (Meguid, 2005)? Furthermore, the state of flux identified by Mair (1989) now also affects the party politics of migration. The time when one could associate liberal and multicultural stances with the centre-­left and restrictive and assimilationist ones with the centre-­right now seems over. For example, Helbling (2014) finds remarkably similar views on multiculturalism between conservative and social democratic­type parties in Europe. That is, both party families tend to communicate favourable – yet moderate – attitudes regarding cultural difference. However, the ways in which the contemporary mainstream engages with the immigration issue are often confusing, subject to sudden shifts, and do not always follow any obvious logic. In part, this is due to immigration and integration cutting across several, sometimes disparate, policy fields, ranging from hands-­on questions of redistribution to law and order, security and national identity. If one accepts the multi-­dimensionality of these questions, then immigration and integration arguably present mainstream parties with several framing dilemmas. One relates to the economic impacts likely to occur as the population increases through immigration, while another concerns cultural – possibly more nebulous – effects that the migrant ‘Other’ is perceived to have. Mainstream parties consequently find themselves balancing multiple positions. And emphasising either the ‘threat’ or the ‘benefit’ of further migration comes with its own set of challenges. The focus on migration as a ‘threat’ often characterises centre-­left positions on labour migration, the rationale being that labour markets need to be controlled and salary negotiations subjected to collective bargaining. Migrant labour, especially of the unskilled variety, is typically considered to suppress wages and hinder the advancement of workers’ rights rather than constituting new recruits to the cause (see Ireland, 2004; Messina, 2007). Many centre-­right parties, conversely, typically push the opposite stance, referencing the benefits that increasing the supply of labour can bring to employers and to the owners of capital (Breunig and Luedtke, 2008). These conclusions characterise the work done by, for example, Hinnfors et al. (2012) who suggest social democracy to be a key factor for understanding this, perhaps counter-­intuitive, outcome. European centre-­left parties, particularly those in corporatist contexts, often struggle 119

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to square an internationalist outlook with fears of splitting the working-­class into indigenous and ethnic factions (see further Freeman and Kessler, 2008; Sainsbury, 2006). While contemporary social democracy has reluctantly come to accept the mobile character of labour, thereby seeking to manage rather than to control borders, the chauvinistic position is now taken over by the PRR. However if one looks beyond the category of labour migration, then mainstream positions are reshuffled. The asylum and refugee categories are indicative in this respect. The centre-­left often adopts remarkably lenient stances compared to those taken up by the centre-­right, mostly with reference to their human rights and international solidarity agenda (Widfeldt, 2014). Although centre-­right parties tend to view labour migration as largely unproblematic, particularly when it is of the skilled variety, their attitudes towards asylum and family reunification are more ambivalent. This reticence connects to the delays in entering the labour market these groups often experience, making their economic benefit less obvious. But these attitudes also tap into security concerns, fearing societal fragmentation and ‘parallel societies’ developing due to ‘uncontrolled’ migration and a too lenient approach to cultural differences. These worries are then amplified the more pronounced the traditional, authoritarian and nationalist elements are in the party in question. The tensions sketched out above characterise a majority of the West European party families (see e.g. Odmalm and Bale, 2015). But if one’s comparative perspective broadens, then a more nuanced – possibly more complicated – picture emerges. The work on Central and East European parties highlights some interesting differences. Pytlas (2013), for instance, discusses how radical right discourses have become increasingly legitimised by the political mainstream. In contrast to party strategies pursued elsewhere in Europe (Meguid, 2005), mainstream and niche contenders in Hungary and Slovakia appear to find common ground in those historical narratives that concern nation- and state-­building in the post-­1989 era (see further Minkenberg, 2015; Pytlas, 2016). While PRR parties in Central and Eastern Europe share some of the nationalist and chauvinist sentiments of their sister parties in Western Europe, they usually place greater emphasis on the threat of disunity stemming from their domestic national minorities than do those in Western Europe. In Southern Europe, and in Spain particularly, PRR-­type parties play a comparatively smaller role (Alonso and Kaltwasser, 2015) despite the dilemma of trying to restrict clandestine entry versus the need for low-­skilled labour. This absence is further puzzling as the Spanish conservatives and social democrats have both been favouring the same liberal and multicultural positions since the early 1990s (Morales et al., 2015b; see also Morales et al., 2015a). Yet Southern European countries’ status as countries of immigration is relatively new, which helps to explain why immigration is less politicised and thus less of a topic for academic inquiry. The work produced by Morales et al. (2015b: 477) is among the few to have an explicit focus on party politics in Southern Europe. Their key finding – ‘the Spanish mainstream parties have also started to incorporate immigration into their patterns of electoral competition’ – suggests such questions to perhaps have become established features of party competition, which, in turn, makes Spanish party politics of migration similar to that found elsewhere in Western Europe (see also see Karamanidou, 2015; Massetti, 2015). The scholarship on North America, on the other hand, exhibits a long(er) tradition of analysing the mainstream’s relationship with, especially, labour migration but also with ethnic relations. Regarding the former, Hampshire’s findings (2013, see also Freeman, 1995; Munck, 2009) suggest that US parties often have to balance employer demands for low-­skilled labour with voters’ demands for tighter border controls. This dilemma has been a continuous challenge for Democrats and Republicans alike. Much like socio-­democratic parties in Western Europe, the Democratic Party has found it challenging to combine a (somewhat) pro-­immigration stance with maintaining good relations with trade unions (Tichenor, 2002). 120

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Integration has traditionally been less contentious in the US however. In part, its low level of salience is due to the ‘melting pot’ understanding of national identity that prevailed (Cheng, 2014). However, as flows diversified and populations of migrant origin became more visible – in terms of their ethnicity as well as religious affiliation – the Amer­ican mainstream faces novel challenges for how to frame on-­going immigration debates (see e.g. Hajnal and Rivera, 2014). Although some of the pressures stemming from increased numbers – on the environment, on resources and on services – are equally present in European contexts, a key feature for US based studies is how mainstream parties attempt to negotiate the racial element of migration. An implicit – possibly continuous – element of racism is thus identified by Wroe (2008) as crucial for understanding relationships parties have had with immigration and ethnic relations. And this quandary has become particularly acute following 9/11 and the increased securitisation of the immigration issue (D’Appollonia, 2012).

Is there a particular European or North Amer­ican take on these questions? The European literature typically divides between those adopting structuralist perspectives and those emphasising parties’ agency. In the former, country specific ‘philosophies of integration’ are said to be remarkably robust and difficult to change. Parties are consequently not credited with much ability to influence policy or policy outcomes. This approach characterises the work done by, for example, Kitschelt and McGann (1997). Political parties are here viewed as passive agents that primarily react to public opinion and/or the electoral feats of PRR-­type parties. Also, they are understood to be at the mercy of the institutional environment they happen to compete in (see further Lazaridis et al., 2016; Norris, 2005). Research done on the British party politics of migration is illustrative of this structuralist perspective. The first-­past-the-­post system is said to push parties closer together, which consequently is said to explain why mainstream parties embarked on a restrictive journey in order to not lose out electorally (Carvalho et al., 2015; Evans and Mellon, 2015). Party responses are thus understood as the result of forces beyond their immediate control. Yet at the same time, parties often drive reform and may also – proactively – pick up on particular types of migrant claims-­making should some form of potential electoral gain be identified (Bale, 2013). These more agency-­based approaches are present in the special issue edited by Bucken-­Knapp et al. (2014: 558) with the editors noting that ‘[m]any party-­migration scholars fail to recognize mainstream parties’ own pro-­active reasons [emphasis added] for moving in a more open or stricter direction’ (see also Howard, 2010). Green (2005, 2012) also acknowledges a degree of agency in parties’ actions. The German greens and social democrats, for example, identified migrants and their descendants as a substantial and largely untapped segment of the population that could well be persuaded to vote for them once legislation allowed them to acquire full political membership. Thus, the two parties were instrumental in reforming German citizenship policy in the late 1990s. In contrast to Kitschelt and McGann, then, Green stresses party attempts to exploit an institutional set-­up rather than being trapped by it. Structuralist approaches are dominant in the North Amer­ican literature too. In the Canadian case, for example, Winter (2015) flags the sustained continuity of multicultural thinking and policy-­making. This path-­dependency resulted in a solid cross-­party consensus regarding policy direction, which, in turn, steered much academic attention away from focussing on any party politics of migration. In the US focussed literature, conversely, the relatively smaller role parties traditionally play often means that administrations, governments and presidents receive most of the analytical attention (see e.g. Stonecash, 2013). Yet one can also observe similarities between European and North Amer­ican scholarship. Contrasting framings of migration as an ‘economic/demographic necessity’ or as a ‘threat to 121

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national security/welfare state/social cohesion’ have developed into common denominators to characterise those intra- and inter-­party tensions that emerge as mainstream parties engage with the immigration issue. Both European and North Amer­ican literatures seek to explain why e.g. conservative-­type parties increasingly emphasise the ‘threat’ aspect of immigration (Gruber and Bale, 2014; Meguid, 2005). One would perhaps expect said parties to consider the needs of businesses first. Yet such free market-­style arguments also face increasing difficulty to gain traction, particularly in the post-­9/11 era (Golash-­Boza, 2016). What said parties appear more concerned with is how to increase the state’s capacity to control, monitor and vet migrants and asylum seekers. Questions of immigration and integration have thus morphed into issues typically portrayed (and understood) as security risks. Interestingly, then, this process of securitisation has simultaneously shifted academic attention away from political parties and back to the state level politics of migration (see e.g. Balzacq et al., 2016; Bourbeau, 2011). However, following the Brexit referendum; the US presidential election (both in 2016), and the continuous rise of niche challengers, we are likely to see a stronger focus on parties again, particularly studies that examine the blurred edges between mainstream and PRR parties. An important part of this relationship concerns the transformation the latter has gone through. In the 1980s and 90s, the PRR party family was largely tainted by its neo-­Nazi past, making any appeal to broader segments of the electorate difficult to pull off. In that sense, their level of success was typically confined to the size of the ‘niche vote’, and, until the last 15 to 20 years, rarely went above single figures. The niche position was furthermore characterised by biological racism and ethnic understandings of national identity. These starting points constituted a clear dividing line between the political mainstream and the PRR. Therefore, a significant chunk of the party politics literature tended to focus on explaining and categorising the latter (see e.g. Mudde, 2007; Pelinka, 2013), while any dealings mainstream parties have had with immigration and integration often were neglected. However, two important developments have come to refocus attention on the political mainstream. First, the emphasis PRR parties previously placed on being radical and anti-­system is gradually being replaced by more populist approaches. The novelty, Taggart (1995) notes, lies in fusing voters’ increased level of distrust in political elites with an equally strong level of dissatisfaction with the status quo. Contemporary incarnations of the PRR also tend to pursue an ‘alternative facts’ and ‘post-­truth’ style of arguing. The intuitions and feelings of party representatives are here taken as ‘fact’ and confirmed as such through ‘saturation coverage, platform and outlet multiplication, and information glut’ (Andrejvic, 2016: 168). This particular communication strategy can be difficult for (mainstream) parties to engage with since they are often used to a more facts-­based approach to politics (McGratten, 2015). Second, several PRR parties are actively trying to remove those obvious signs of racism which previously characterised their anti-­immigration position (Rydgren, 2013). This makeover consequently allows them to adopt positions that underscore the cultural and economic cost associated with ‘uncontrolled’ immigration. Such arguments are then combined with chauvinistic understandings regarding access to the welfare state, to the national labour market and to the benefits of being a citizen. These changes are important for understanding why mainstream parties often struggle to come up with consistent – and convincing – narratives for how to manage immigration and ethnic relations. Part of the challenge is that certain chauvinistic elements are still present within the political mainstream. Determining who should have legitimate access to the welfare state and to the labour market has troubled segments of the centre-­left, whereas migrants’ access to citizenship taps into those nationalist and traditionalist streaks typically present in centre-­right parties. Overall, then, a key difference is the (somewhat) greater role parties are given in the European literature compared to that of North America (see further Hampshire and Bale, 2015; 122

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Schmidtke, 2015). The latter, conversely, tends to stress policy outputs and/or state level politics of migration. Granted, this is usually where most of the immigration action takes place. However, such an emphasis may well be at the expense of more input-­orientated studies.

Conclusion Is studying the party politics of immigration (still) important? And in which direction are such studies heading? As a burgeoning – but emerging – sub-­field, it may be premature to answer the first question in the affirmative. Particularly so since the ‘party politics of migration’ has traditionally played a minor role in studies conducted across Europe and in North America. However, what can perhaps be concluded is that we are currently witnessing a shift in scholarly attention. On the one hand, mainstream parties are receiving more and more coverage, especially regarding how immigration and integration affect their intra- and inter-­party dynamics. That is, the picture that materialises is one which is more nuanced and one which is not confined to simple dichotomies between leftist (liberal) – rightist (restrictive) positions. Although the special issue by Bale (2008) suggests a need to ‘turn the telescope around’, and focus (more) on the centre-­right, recent developments across Europe, but also in North America, point to an equally strong need to consider the interactions between centre-­left and centre-­right parties (Alonso and Fonseca, 2012). In other words, scholars might benefit from adopting a wider systemic focus and ask to what extent mainstream parties engage with the immigration issue in relation to their ‘normal’ competitors. Such an approach opens up new possibilities to challenge conventional narratives. It could well be that some of those restrictive and assimilationist turns we currently witness are the result of parties’ trying to claim back ownership over immigration and integration from their mainstream competitor/s rather than being a sign of playing catch-­up with the PRR. These new approaches may also help to bridge the divide between structural and agency-­based explanations that so far have characterised the literature.

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The party politics of migration McGrattan, C., 2015. The Stormont House Agreement and the new politics of storytelling in Northern Ireland. Parliamentary Affairs, 69(4) pp. 928–946. Meguid, B., 2005. Competition between unequals: the role of mainstream party strategy in niche party success. Amer­ican Political Science Review, 90(3), pp. 347–359. Messina, A.M., 2007. The logics of politics of post-­WWII migration in Western Europe. Cambridge: Cambridge University Press. Minkenberg, M., 2015. Transforming the transformation? The East European radical right in the political process. Abingdon: Routledge. Morales, L., Pilet, J.-B. and Ruedin, D., 2015a. The gap between public preferences and policies on immigration: a comparative examination of the effect of politicisation on policy congruence. Journal of Ethnic and Migration Studies, 41(9) pp. 1495–1516. Morales, L., Pardos-­Prado, S. and Ros, V., 2015b. Issue emergence and the dynamics of electoral competition around immigration in Spain. Acta Politica, 50(4) pp. 461–485. Mudde, C., 2004. The populist zeitgeist. Government and Opposition, 39(4) pp. 542–563. Mudde, C., 2007. Populist radical right parties in Europe. Cambridge: Cambridge University Press. Munck, R. ed., 2009. Globalization and migration: new issues, new politics. Abingdon: Routledge. Norris, P., 2005. Radical right: voters and parties in the electoral market. Cambridge: Cambridge University Press. Odmalm, P., 2014. The party politics of the EU and immigration. Basingstoke: Palgrave. Odmalm, P. and Bale, T., 2015. Immigration into the mainstream: conflicting ideological streams, strategic reasoning and party competition. Acta Politica, 50(4) pp. 365–378. Pelinka, A., 2013. Right-­wing populism: concept and typology. In: R. Wodak, M. Khosravnik, and B. Mral, eds. Right-­wing populism in Europe: politics and discourse. London: Bloomsbury. pp. 3–23. Pytlas, B., 2013. Radical-­right narratives in Slovakia and Hungary: historical legacies, mythic overlaying and contemporary politics. Patterns of Prejudice, 47(2) pp. 162–183. Pytlas, B., 2016. Radical right parties in Central and Eastern Europe: mainstream party competition and electoral fortune. Abingdon: Routledge. Rooduijn, M., 2015. The rise of the populist radical right in Western Europe. European View 14(1) pp. 3–11. Rydgren, J. ed., 2013. Class politics and the radical right. Abingdon: Routledge. Sainsbury. D., 2006. Immigrants’ social rights in comparative perspective: welfare regimes, forms of immigration and immigration policy regimes. Journal of European Social Policy, 16(3) pp. 229–244. Schmidtke, O., 2015. Between populist rhetoric and pragmatic policymaking: the normalization of migration as an electoral issue in German politics. Acta Politica, 50(4) pp. 379–398. Stonecash, J.M., 2013. Understanding Amer­ican political parties: democratic ideals, political uncertainty, and strategic positioning. Abingdon: Routledge. Taggart, P., 1995. New populist parties in Western Europe. West European Politics, 18(1) pp. 34–51. Tichenor, D.J., 2002. Dividing lines: the politics of immigration control in America. Princeton: Princeton University Press. van der Brug, W., D’Amato, G., Berkhout, J. and Ruedin, D. eds., 2015. The politicisation of migration. Routledge: Abingdon. van der Brug, W. and van Spanje, J., 2009. Immigration, Europe and the ‘new’ cultural dimension. European Journal of Political Research, 48(3) pp. 309–334. van Spanje, J., 2010. Anti-­immigration parties and their impact on other parties. Immigration stances in contemporary Western Europe. Party Politics, 16(5) pp. 563–586. Widfeldt, A. 2014. Tensions beneath the surface – the Swedish mainstream and the immigration issue. Acta Politica 50(4), pp. 399–416. Williams, M.H., 2006. The impact of radical right-­wing parties in West European democracies. Basingstoke: Palgrave. Winter, E., 2015. A Canadian anomaly? The social construction of multicultural national identity. In S. Guo and L, Wong, eds. Revisiting multiculturalism in Canada: theories, policies and debates. Sense: Rotterdam. pp. 51–69. Wroe, A., 2008. The Republican Party and immigration: from proposition 187 to George W. Bush. Basingstoke: Palgrave.

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11 The participation, mobilization and political representation of migrants in Europe Pierre Monforte and Laura Morales Introduction Although immigration is not a recent phenomenon in Europe, it is only since the 1990s that European scholars have begun to explore the role and representation of migrants in politics. The late emergence of this field (Bevelander and Spång 2014) was driven by the prior assumption that migrants who arrived in Europe in the 1950s and 1960s were just guest workers, and the late realization that they settled, and therefore aimed to participate politically. By contrast, the Amer­ican scholarship identified as early as in the 1960s–1970s that migrants and ethnic minorities’ participation is a crucial issue in US politics (Browning, Marshall and Tabb 1984; Dahl 1961). Migrants and ethnic minorities in Europe participate in politics in different ways, through voting (Tillie 1998), involvement in civil society organizations (Morales and Pilati 2011) or collective contentious action (Koopmans et al. 2005). Also, they are increasingly represented in parliaments and local councils across Europe (Bird, Saalfeld and Wüst 2011). In doing so, they aim to have input in the political process, and they demonstrate their political agency. European scholars have explored the role of migrants in politics through different questions, which relate to different approaches. Three questions in particular can be highlighted: what is the extent of migrants’ civic and political participation at the individual level (e.g. voting or involvement in civil society organizations); how do they participate as communities in particular in contentious politics (collective action); and what is the extent of their political representation? Although these questions have been analysed separately, they relate to the same general perspective: revisiting the idea that migration policy and politics is a primarily ‘elite’ driven process. The common underlying objective is to understand the role of migrants in the process of shaping migration policies, as well as in the process of participating in the public sphere more generally. The theories and approaches that have dominated the Amer­ican literature on migrants’ political participation – in particular Resource Mobilization Theory (focused on organizational strategies to recruit participants) and the emphasis on identity politics (exploring the processes of construction of collective identities) – have influenced European scholars working on these issues. However, the key contribution to this field of the European literature is the consideration of ‘contextual’ factors at the local, national or supranational as drivers of migrants’ political 126

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participation. As we will develop in this chapter, this perspective stems from an empirical observation: the variation in political opportunities, migration policies, integration regimes and other contextual factors across European settings influence the political participation of migrants. In this chapter, we briefly review the European scholarship on the political participation of migrants through three different (but related) dimensions: the civic and political participation of migrants and ethnic minorities; their mobilization in contentious action; and their political representation at the institutional level.

The civic and political participation of migrants in Europe The study of migrants’ civic and political participation has been approached from two analytical perspectives in Europe. On the one hand, the early studies focused on migrants as a group or as a set of groups; that is, on the aggregate or collective level. These early studies focused on collective action and group dynamics of political integration into local and national-­level politics, as well as on the transnational political engagement of migrant communities (Rath 1988; Hargreaves 1991; Hargreaves and de Wenden 1993; Saggar 1993; Ireland 1994; Fennema and Tillie 1999; Martiniello 2000; Garbaye 2002). On the other hand, since the 2000s scholars have started to analyse the civic and political participation of migrants with individual-­level data. Since the mid-­2000s, a number of specialized surveys have targeted migrants and their descendants to better understand their individual political behaviour. National elections studies – in, e.g. Britain, Germany and Norway – have started to produce boost samples or parallel samples of ethnic and migrant minorities. At the same time, European research programmes have enabled scholars to launch ambitious comparative surveys targeting only migrant groups – e.g. ‘The Integration of European Second Generation’ (TIES), the Localmultidem, the Eurislam or the Immigrant Citizens Surveys. Findings point in a common direction: migrants of various national origins tend to show lower levels of interest in politics, less information about politics and less inclination to participate in associations or in various forms of political action. The next section focuses on group-­level participation and collective action – primarily protest. Here we focus on the key findings of research in Europe focusing on the individual level. Focusing first on associational involvement, multiple studies have shown that migrants in Europe are less inclined to join associations than the majority population (Jacobs, Phalet and Swyngedouw 2004; Strömblad, Myrberg and Bengtsson 2011; Manatschal and Stadelmann-­ Steffen 2014). This finding is consistent across a number of definitions of associational involvement and across different types of organizations. The evidence also suggests that participation in organizations that connect migrants to their countries of origin or ancestry through transnational practices is not as common as might be expected (Morales and Morariu 2011). Some studies have suggested that migrants’ lower levels of associational involvement are due to a reduced access to the resources that are linked to participation in associations as well as the time it takes to integrate in the country of settlement (Aleksynska 2011; Voicu and Şerban 2012). Equally, a number of aspects relating to the experience and timing of migration have also been shown to be important, such as the length of period of settlement in the country, whether individuals hold the nationality of the country of settlement, and whether they are first or second generation migrants (Morales and Pilati 2011; Heath et al. 2013). All these studies indicate that the more settled migrants are in the country of reception, the more likely they are to become involved in associations. Other studies (Voicu 2014) show that migrants’ associational involvement follows a pattern of partial assimilation to the country of settlement, which suggests that the context of reception 127

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is critical. Similarly, Pilati et al. (2016) show that how much the native population joins associations is the single most important contextual factor in shaping migrants’ associational involvement, and Pilati and Morales (2017) show that involvement in pan-­immigrant associations is considerably affected by the place of settlement. ��������������������������������������������������������������������������������������������� Not surprisingly, the electoral participation of migrants in Europe has attracted more attention than any other form of political participation. Yet, even in this domain the data coming from surveys is still scarce. Research has been more abundant for the British (e.g. Studlar and Welch 1992; Saggar 2000; Heath et al. 2013) and Scandinavian cases (e.g. Soininen and Bäck 1993; Togeby 1999; Bergh and Bjørklund 2010; Wass et al. 2015), but gradually research has emerged in other places, such as Germany (e.g. Wüst 2000) and elsewhere in Europe (e.g. Méndez 2010; Morales et al. 2010; Strijbis 2014). All these studies point to considerably lower turnout rates among migrants and their descendants when compared to majority or native populations. There is also consistent evidence that naturalization and the ease of access to nationality is of primary importance both for the turnout patterns of migrants and for those of their descendants (González-Ferrer 2011; González-Ferrer and Morales 2013; Hainmueller, Hangartner and Pietrantuono 2015). Easier access to naturalization increases the pool of migrants who can run for office and mobilize other migrants into voting, and affects how migrants perceive whether they are welcome new citizens of the polity. As voting is transmitted inter-­generationally within migrant homes (Spierings 2016), naturalized parents are more likely to instill in their children the habit of voting. Beyond voting, research has focused on a wide range of forms of non-­electoral participation of migrants in Europe. With survey data from the Localmultidem project across ten cities and 28 migrant groups, Morales (2011) shows that across various forms of political action (contacting, party activity, protest action and consumer action) migrants participate less in politics than the majority population, with very few exceptions. De Rooij (2012) confirms this finding and points to different patterns of political participation among migrants and the majority population: migrants’ political action is more interdependent and when they participate in one form they participate in several others. However, socio-­economic resources are not enough to explain the differences in participation between migrants and the majority population. Other factors specific to the migrant population need to be taken into account, such as the ability to speak the dominant language in the country of settlement (Morales and Pilati 2011; Heath et al. 2013), or having the citizenship of the country (Just and Anderson 2012). Beyond individual attributes and processes, European scholarship has pioneered research on the role of organizational structures and political opportunities in shaping migrants’ political participation patterns. Fennema and Tillie (1999, 2001; Fennema 2004) show that wide and strong networks of ethnic organizations lead to high levels of political participation among immigrant-­background residents. Similarly, Jacobs et al. (2004), Tillie (2004) and van Heelsum (2005) find a positive link between ethnic associational involvement and political participation. Nevertheless, other studies yield mixed findings, suggesting that it may depend on the ethnic group (Togeby 2004) or on the form of political engagement (Berger, Galonska and Koopmans 2004). The few existing comparative studies indicate that the effect of engagement in ethnic associations on mainstream political engagement across European settings is either negative or nil (Pilati and Morales 2016; Morales and Pilati 2011). The focus has expanded from an emphasis on the role of ‘ethnic’ organizations to a wider consideration of the various types of associations depending on their membership composition. All case studies agree in finding that migrants’ involvement in associations primarily formed by the native or majority population fosters their political participation (e.g. Berger, Galonska and 128

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Koopmans 2004; Pilati 2016). Similarly, Pilati and Morales (2016) show that while migrants’ individual involvement in ethnic organizations fosters their political participation, this effect mostly pertains to political action on immigration-­related issues; whereas involvement in native and pan-­immigrant associations has a spillover effect on various forms of political action and for both mainstream and immigration-­related issues.

The mobilization by and in support of migrants in Europe The previous discussion focuses on participation as an individual behaviour, but the collective dimension of migrants’ engagement in the political process has received separate attention among European scholars. Although migrants have organized and engaged in collective action since the 1960s–1970s in Europe (Ireland 1994) it is since the 1990s that their mobilization has gained visibility on a regular basis. A number of movements and cycles of mobilization have attracted wide media attention and elicited political responses in Europe: the squats and sit-­ins of the ‘sans-­ papiers’ in France in 1996, the mobilizations for the regularization of undocumented migrants in Italy and Spain in the mid-­2000s; the activist networks in Calais and in Greece in the context of the ‘refugee crisis’ in 2015–2016. These movements make claims related to the cultural integration of migrants and minorities, their formal access to the rights granted to citizens, or against the border control policies of European states. It is in the 1990s also that a literature focusing on the mobilization by and in support of migrants emerges in Europe. The forms, levels and determinants of these protests have been analysed through different angles. Three different questions in particular – each addressed through distinct approaches – can be highlighted. First, scholars have focused on the movements constructed by migrants themselves – particularly undocumented migrants – and on how the specificities of their protest can be explained. Directly or indirectly inspired by Resource Mobilization Theory, they show how the lack of material and symbolic resources as well as the precarious condition of migrants (relating to residence status, employment or housing) renders difficult the construction of collective identities and stable support, which are considered necessary for mobilization (Siméant 1998; Laubenthal 2007). In particular, these movements – like other movements ‘of the weak’ (Guiraudon 2001) – have to rely on the strategic support of established organizations that can give them visibility and channels of access to power holders (Pilati 2016). Also, these studies show that, due to the fact that they often live at the margins of society, migrants (specifically undocumented migrants) tend to choose forms of protest such as hunger-­strikes, occupations and long-­term marches that enable them to become visible in public space (Monforte and Dufour 2013) and to reveal their vulnerability (Edkins and Pin-­Fat 2005). These specific dynamics of protest have led European scholars to show the similarities with other movements of excluded groups such as unemployed or poor people (Chabanet and Royall 2010). At a more theoretical level, this line of enquiry about the specificities of migrants’ movements connects with recent studies in Europe, North America and Australia inspired by the concept of ‘acts of citizenship’ (Isin and Nielsen 2008). Focusing on how migrants’ mobilizations challenge the limits of citizenship through protests that enact their ‘right to have rights’ (Arendt 1951), these studies underline their potential for social transformation (Oliveri 2016). Studies relying on this approach show how, in sites such as Calais (McNevin 2006) or in the Mediterranean Sea (Monforte 2016; Stierl 2016) migrants and their supporters construct contentious and visible protests in order to demonstrate their political subjectivity and so challenge traditional lines of exclusion (Nyers 2003; Rygiel 2011; Squire 2011). Although migrants’ protests have a set of features that are specific to their movements, the evidence suggests that their collective actions also vary across contexts: migrants (and their 129

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a­ dvocates) do not mobilize in the same ways and through the same claims in Britain and in Germany for example (Koopmans and Statham 1999). To analyse these questions, several scholars have carried out cross-­national comparisons of migrants’ movements (Giugni and Passy 2004; Koopmans et al. 2005), analysing variations in terms of their emergence and significance, repertoires of action, claims and networks. In line with approaches inspired by the Political Opportunity Structure perspective, in Europe these studies emphasize how these variations are accounted for by factors such as citizenship regimes (the formal and informal access to rights and the cultural recognition of minorities), the resonance of pro-­migrants’ discourses, the availability of networks of support, or the strength of far-­right parties. Thus, in their study of the claims over migration and ethnicity in five European countries, Koopmans et al. (2005) show how national citizenship regimes have a direct influence on the number of public claims made by migrants as well as on the nature of these claims. For example, in comparison with countries that have civic models of citizenship (France, the UK, Netherlands), the number of claims made by migrants living in citizenship regimes based on ethnic conceptions (Germany, Switzerland) are lower and more often directed towards the countries of origin. Challenging the idea of the prevalence of national contexts, a set of studies has highlighted the significance of the supranational context, and in particular the construction of an EU legal and institutional framework on immigration, asylum and anti-­discrimination since the 1990s (Soysal 1994). Scholars have asked whether the construction of a common migration policy framework is influencing the strategies of migrants’ protest across EU countries (Danese 1998) and whether this framework opens new opportunities for these movements (Geddes 2000). Analysing the differences between advocacy strategies and opportunities at the national and at the EU level, studies have shown that EU institutions offered very little prospects for migrants and their supporters to advance their rights through lobbying in Brussels (Favell 2000; Guiraudon 2001), although some opportunities for advocacy have opened in recent years (Kaunert, Léonard and Hoffmann 2013). However, studies have shown that migrants’ movements do not ignore the convergence of migration policies, and in particular border control policies. Since the end of the 1990s, many of these movements are going through transnationalization processes, constructing common networks, collective actions and claims across national contexts (Monforte 2014). Recent transnational solidarity initiatives such as the ‘Refugees Welcome’ movement in 2015–2016 illustrate these processes.

The representation of migrants’ voices and issues at the institutional level By contrast to the scholarship on individual participation or on the collective mobilization by or in support of migrants, the study of the representation of migrants’ voices and issues within elected institutions is much less developed in Europe. This is partly due to the fact that migrants’ have started to gain access to elected office at a much later stage in Europe than in North America. The democratic representation of migrants is a logical corollary of their increasing participation and involvement with the political process, as well as a legitimate expectation given their increasing demographic weight in European societies. There is very little systematic evidence, and research has focused on various levels of government – local, regional and national – and has primarily concentrated on two forms of political representation – descriptive and substantive (Pitkin 1967). Research has increasingly underlined the considerable underrepresentation of ethnic and migrant minorities across Europe (cf., Bird, Saalfeld and Wüst 2011; Bloemraad 2013; Ruedin 2013), at the same time that it has highlighted the significant variation across Europe in the extent to which it adequately reflects the demographic presence of migrant minorities. Studies 130

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show the significant variation in the political parties that serve as vehicles for this descriptive representation, and the stark differences in the spread of migrants’ presence depending on the level of government (Schönwälder 2012, 2013; Bloemraad and Schönwälder 2013). The scholarship has made some inroads into accounting for these variations in descriptive representation. Some have pointed to the relevance of the institutional and party-­political setting in which ethnic and migrant minorities operate (Bird 2005; Togeby 2008; Dancygier 2014; Dancygier et al. 2015), while others have emphasized the relevance of ethnicity and ethnic mobilization (van Heelsum 2002; Maxwell 2012; Michon and Vermeulen 2013), or of the cultural and attitudinal context (Ruedin 2009; Tiberj and Michon 2013). The role of electoral systems is an obvious suspect to explain cross-­national differences, yet the existing evidence relating the prevalence of majoritarian or proportional rules and levels of migrant descriptive representation yields inconclusive findings (Bloemraad 2013; Ruedin 2013). Many studies point to the critical role of parties as the crucial gatekeepers in this process and hence to the need to understand the structure of incentives that shape their decisions to field (viable) ethnic and migrant minority candidates (e.g. Claro da Fonseca 2011; Celis, Eelbode and Wauters 2013; Sobolewska 2013; Durose et al. 2013). Beyond understanding why polities achieve better or worse outcomes in mirroring the migrant populations in their societies, scholars have asked whether descriptive representation leads to the substantive representation of the preferences, interests and demands of the migrant communities. European scholars have started examining the specific discursive contributions of migrant minority legislators through their activities and speeches in parliament, and how they connect with migrants’ preferences (e.g. Bird 2011, 2015; Saalfeld and Bischof 2013; Wüst 2014). With content analysis of the speeches or detailed qualitative analysis of the activities and positions of elected officials of immigrant origin, these studies offer a mixed picture about the extent to which descriptive representation is the primary route to substantive representation. In many cases, ethnic and migrant minorities resist pressure to define their political role narrowly according to their ethnicity and origin. Nevertheless, the overall finding is that increased presence leads to improved substantive representation.

Conclusions In this review, we have shown that the (political) role of migrants and ethnic minorities has been explored through different questions and levels of analysis in the European scholarship. Studies focusing on the civic and political participation of migrants have largely attempted to explain their comparatively low levels of engagement in politics, in particular through the focus on individual behaviour. Studies on collective actions have focused on the forms, levels and determinants of migrants’ protests, exploring in particular their mobilization dynamics. Finally, the emerging literature on the presence of migrants in elected office has explored variations in terms of the extent and the content of their representation. Although the broader literature on citizenship and political participation shows that these different questions and levels of analysis relate to each other, studies on migrants and ethnic minorities still need to explore how their political participation, mobilization and representation can be analysed in conjunction. In particular, the analysis of how migrants’ and ethnic minorities’ political representation influences their participation in civil society organizations and social movements has been explored in the US context (Jenkins, Jacobs and Agnone 2003), but less in the European literature. Despite these differences in terms of focus and levels of analysis, this review has highlighted some general tendencies in the way the European literature has analysed migrants’ voices in 131

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politics. The significance given to cross-­national comparative approaches is one of the main features that distinguishes it from the North Amer­ican literature. In particular, the question of how various citizenship regimes translate into migrants’ participation, mobilization and representation is of particular interest. Although recent studies have moved in this direction, the comparative analysis of the political role of migrants beyond Europe’s traditional countries of immigration (France, Germany, the UK, etc.) is still in its infancy, and the participation and mobilization of migrants in countries of more recent immigration, such as South and Eastern European countries, still needs to be fully examined.

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Section commentary Institutions Konrad Pędziwiatr and Witold Klaus

The intensification of migration processes and their resulting issues have, to various degrees, been affecting not only Western Europe but also the Central and Eastern parts of the continent. For example, the growing presence of immigrants has confronted Central and Eastern European (CEE) societies with an entirely new set of social, economic, political and legal issues that are typical for immigration countries, but which do not yet resonate with their popular – and frequently unchallenged – self-­image as countries of emigration. Immigrants’ access to political communities of the CEE, and to membership in them, is negotiated not only on the societal level but also on the political one. Within the latter dimension, the major focus of academic inquiry has typically been on explaining state (rather than specific political party) responses to increased mobility and processes of integration. This type of analysis is also emerging in the CEE (e.g. Weinar 2006; Matyja et al. 2015; Chudinovskikh and Denisenko 2017). However in contrast to Western European countries, the region is often more concerned with the processes of emigration and return migration, as well as with policies of emigration and diaspora engagement (e.g. Lesińska 2013, 2016; Weinar 2017), than with immigration and the integration of migrants. Many of the countries in the CEE region have yet to develop or implement coherent integration policies. For instance, the Polish policy put in place in 2012 was suspended in 2017, while the Czech policy – as with many others countries in the region – faces certain problems since it is primarily implemented by non-­profit organisations and relies heavily on the EU funding (Dusan and Valenta 2014). The issues raised in the ‘institutions’ section are highly relevant for the Western European countries that became countries of immigration before 1975 (e.g. France and the United Kingdom) or after 1975 (e.g. Spain and Italy). They are also increasingly important for countries that are still in the process of becoming spaces of net immigration (e.g. Poland or Lithuania), or where the number immigrants has only recently overtaken the number of emigrants (e.g. Czech Republic or Hungary) (Okólski 2007, 2012). As the European migration crisis of 2015–2016 has shown, a given country does not need to experience a growth in the scale of migration inflows in order to see immigration becoming the key subject of the country’s political debates and a highly politicised phenomenon that was previously little known to a given political community. For example, in the case of Poland and Slovakia, the overlapping of the parliamentary elections (in October 2015 in Poland, and in March 2016 in Slovakia) with the key months of the migration crisis created a context for the anti-­immigrant political challengers to significantly 137

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enlarge their support base and pave the far right’s way to the country’s parliaments (as part of Kukiz15 in Poland and Kotleba – People’s Party Our Slovakia) (Pędziwiatr 2017; Zavis 2017). In 2016 and 2017, radical right-­wing, mainstream right-­wing and sometimes even central parties in the CEE strongly contested the EU relocation and resettlement programme, which was launched in 2015 and aimed to relocate 160,000 people in need of international protection from Greece and Italy to the other member states over a two-­year period (Pędziwiatr and Legut 2016). In this way, the parties tried to further instrumentalise the social malcontent with immigrants in the region and to gain some political capital. The Polish Kukiz’15 party strived to organise a referendum over the issue of acceptance of refugees within the EU scheme, and the Hungarian Fidesz party did organise a referendum over the issue. Although less than 50 per cent of citizens took part in the Hungarian referendum – making it politically invalid – it allowed the ruling party to mobilise its activists and enlarge its support base. Despite an initial but hesitant agreement to the compulsory migrant quota scheme, both Poland and Hungary have failed to relocate a single migrant over the two-­year implementation period (by September 2017), whereas the majority of other countries have underperformed on their legally binding commitments by at least 50 per cent. Eventually only 17.5 per cent of eligible people were relocated under the programme (Ardittis 2017). While until 2015 the CEE’s populist radical right emphasised the threat of disunity stemming from their domestic national minorities (Pankowski 2011, Pytlas 2015; Bustikova 2017), in recent years it began to move closer to its sister parties in the West, which heavily politicise the presence of immigrants (often including immigrants from the CEE). Similarly to the Western European populist radical right, many of the CEE parties of that character have also formed ambiguous ‘friendships’ with Moscow (Shekhovtsov 2017). At the same time, the regional mainstream right-­wing parties have been flirting with the far right, similarly to the West, whereas central parties have increasingly been taking positions on multiculturalism and migration that once only characterised the conservative right. Thus, the region has been taking an active part over the last year in a shift in populist mobilisation from nationalism to ‘civilisationism’ (Brubaker 2017). In a new political context (locally and regionally), Islam has been narrated not only as the most important enemy and key threat to European nations but also to Christian civilization, which non-­religious politicians frequently define in non-­religious cultural terms. The growth of the Internet and people’s reliance on social media as a source of information play a key role in the persistence of these narratives, not only in Western parts of Europe but also in other parts of the continent. In the era of ‘alternative facts’ and ‘fake news’, the populist radical right has been very effectively pursuing the strategy of treating the ‘fake news’ as ‘facts’, as confirmed by saturation coverage, the usage of bots to spread the ‘alternative facts’, platform manipulation and information overload (Andrejevic 2013; Gallagher 2017). Although migration has gradually become the subject of political debates outside of Western Europe – earlier in some countries and only recently in others – the political participation of migrants in the CEE is still quite rare and even less frequently researched. This has to do not only with the lower percentage of migrants within the region’s societies but also with unfavourable regulations that limit their access to the political sphere. As the Migrant Integration Policy Index shows, the countries of the CEE continue to receive the lowest scores of analysed countries for conditions that support immigrants’ political participation. In the region, immigrants’ electoral rights, political liberties and prospects for being consulted on some aspects of state policies or their implementation are the highest in Hungary and Slovenia (scoring 23 and ranking 27th out of 38) and the lowest in Poland and Romania (scoring 6 and 0 respectively, and ranking 37th and 38th out of 38 – MIPEX 20151). At the same time, there is often a sharp difference, in terms of access to the political sphere and funding opportunities, between the 138

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s­o-­called ethnic-­immigration comprised of the members of the historic state-­recognised ethnic/ national minorities in the region, and those who do not relate to a historic presence in the region. (e.g. the difference between Ukrainians and Vietnamese in Poland – Brzozowski and Pędziwiatr 2014). The legal framework on migration in the CEE countries has been shaped by the rules and policies of the EU during the accession process. The candidate countries had to accept and fully implement the solutions elaborated by the EU-­15 (Vermeersch 2005), which were the result of experiences and the challenges related to immigration that these countries were facing at the time. Securitisation of immigration was the constant feature of these laws. In fact, the European legal framework on migration constantly favours immigration control over the human rights; the desire to curb immigration through security measures has been given paramount importance (Douglas-­Scott 2017; Herlin-­Karnell 2017). The institutions of the EU operate within this same framework and find it difficult to change or liberalise this approach to migration in their everyday practice (Mitsilegas 2013). This approach and attitude have been translated to the CEE candidate countries, as ready templates for migration policymaking. The role of European regulations on the development of migration law in CEE countries has been twofold. On the one hand, preoccupied with securitisation, they tightened migration laws with regard to the entry of foreigners and the legality of their stay. On the other hand, they were establishing the asylum system and increasing guarantees for asylum seekers, while also building legal foundations for integration (Weinar 2006). Ensuring foreigners’ access to the labour market was outside the remit of the EU, which for instance allowed Poland to create a simplified system of entry that was unique on the European scale (Duszczyk 2012; Kindler, Kordasiewicz and Szulecka 2016: 15–17). The existence of such a system enabled the country in 2016–2017 to become a local leader of short-­term and ‘shuttle’ economic immigration (in the first half of 2017 alone, 947,000 simplified work permits had been issued to foreigners – PMoLFSP 2017). Similarly, the CEE countries have never been active players on the EU level in terms of drawing up new migration laws. Since migration was not an important political issue for them, they would even accept solutions that were inconvenient from their perspective (e.g. the Dublin Regulation, which affected border EU Member States most acutely), without any attempt to introduce more favourable amendments when the opportunity arose. Another example of regulations which completely fail to account for the needs and challenges of CEE countries are the regulations of the so-­called Employer’s Sanctions Directive (2009/52/EC). They aim to deal with undocumented migrants by punishing their employers in order to sabotage migrants’ access to workplaces. At the same time, undocumented migrants have been granted some minimal laws, which paradoxically render their situation marginally better than that of illegally working legal migrants, who can be stripped of their right to legal residence (if the illegal employment is discovered). The target group of the Directive, i.e. employers of undocumented migrants is irrelevant in the CEE context: there are maybe a handful undocumented migrants in CEE countries. However, the illegal employment of legally staying foreigners (e.g. visitors or students) poses a serious issue, which the EU-­level directives fail to address (Słubik 2014). The relatively small number of migrants in CEE countries has prevented migration case law from developing, since few lawyers have dealt with the subject, mainly those involved in civil society organisations for the protection of human rights. Also worth bearing in mind is the specificity of justice systems in CEE countries, which, despite having undergone profound reforms in the 1990s, has not been fully able to liberate itself from the communist legacy. Looking at Polish judges, one cannot help but notice a very high level of legal conservatism and rigidity with regard to legal standards, as well as a reluctance to employ more general norms and interpret the law in the context of its compatibility with 139

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human rights. Hence the infrequent reference to ECtHR (European Court of Human Rights) or CJEU (Court of Justice of the European Union) rulings (Matczak 2007) in Polish case law. It is also exceptional for the CEE countries to appeal to the CJEU with prejudicial questions. Therefore, there are few CJEU rulings concerning the challenges ensuing from the application of migration laws in these countries. On balance, Central European judges succeed in resisting the pressure of public opinion, which at the moment takes issue with migrants (Klaus et al. 2018). On the other hand, in matters pertaining to security, judges allow uniformed service to retain a wide range of discretionary rights. For instance, the Polish Supreme Administrative Court (SAC) passed a judgement in 2016 (cases II OSK 2554/14 and II OSK 61/15) which negated standards defined in international case law that ensure external evaluation by an independent body on the advisability of applying the safeguarding clause and classifying reasons for the removal of a foreigner on security grounds (Chahal v. UK, App. no. 22414/93; joined cases C-­402/05 and C-­415/05 Kadi and Al Barakaat International Council Foundation v. Council of the European Union). The SAC ruled that since the judges were allowed insight into classified evidence, this constituted enough of a protection of the foreigner’s rights against removal. Similarly, the rulings of Hungarian judges have yet to question the legality of new measures against refugees introduced by the authorities. They continue to participate in their application, in a way legitimising their legality (Nagy 2016), even though ECtHR has deemed many of the solutions to be violations of international law (e.g. Ilias and Ahmed v. Hungary, App. No. 47287/15 – the ruling has been challenged before the Grand Chamber of the ECtHR). Tellingly, there have also been cases of rulings in line with the political agenda, e.g. one by the Supreme Court of Hungary, in which the judges failed to question the legality of the xenophobic referendum announced by the Hungarian government against the reception of refugees (Nagy 2016, 2017). In summary, despite the fact that courts try to prevent abuses of executive power, they limit themselves to applying the existing law and do not challenge the migration laws adopted in a given country, even if they violate the standards of international law. It would be difficult to underestimate the positive influence of international courts in this respect, especially in the context of the ever-­tightening asylum policy applied by the increasingly authoritarian governments of Poland and Hungary. The ECtHR plays a particularly crucial role, albeit with limited impact on the current situation due to lengthy proceedings. Another obstacle might be the refusal to submit to the ruling of the Court. This precedent was already set in the summer of 2017, when Poland refused to comply with a series of decisions by the ECtHR issued under Rule 39 (Klaus 2017). This may spell a loss of influence of the Court’s rulings on the actual change of the legal standards. It is also clear that the activities of other EU institutions (such as the European Commission, the European Parliament or the CJEU) have little influence on counteracting CEE country violations of EU laws that pertain to migration. A case in point is the refusal of CEE countries to participate in the relocation scheme (with Poland and Hungary even closing their borders to the inflow of refugees). Due to either lack of will or capability, European institutions have yet to address these governments’ illegal practices. (Nagy 2017; Klaus 2017).

Note 1 www.mipex.eu/.

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Part III

Integration

12 The Governance of Citizenship and Belonging in Europe and the European Union Costica Dumbrava Introduction Citizenship describes a legal bond between a person and a state. Along with this legal aspect, the concept of citizenship has a number of other dimensions such as rights and obligations, participation and national identity (Bosniak, 2006). Modern citizenship is based on the idea of a congruence of scope between legal inclusion, political participation and national belonging. Whereas this model has rarely materialised in practice, the ideal of uniform national citizenship has been embedded in the modern regimes of citizenship, often with the explicit or tacit acceptance of liberal political philosophers. The historical link between citizenship and the nation state explains why citizenship policies in the past routinely included and excluded people on grounds of culture, ethnicity and race. Over the last half a century, however, we witnessed a gradual liberalisation and denationalisation of citizenship (Joppke, 2005). This trend is visible in the elimination from citizenship laws of explicit discriminations on grounds of gender, ethnic or national origin, and in the gradual expansion of access to citizenship for immigrants and their children. The change of focus from obligations (such as military ones) to rights, and the shift in the basis of most individual rights from citizenship status to residence status have led to a ‘lightening’ of citizenship (Joppke, 2010). Citizenship has been gradually dissociated from national identity and allegiance, as evidenced by the development of an ‘international law on citizenship’ and by the rapid spread of dual citizenship (Spiro, 2011). A number of recent developments, however, have shown the limits of these general trends towards liberalisation, lightening and hollowing of citizenship. Along with a revival of citizenship as an ideal of civic and political participation (Kymlicka and Norman, 1994), citizenship policies have recently become more contested and politicised and a privileged battlefield for conflicting ideas about national identity. In an era of increased international migration, economic globalisation and supranational integration, citizenship laws have become a multi-­purpose device to be used for, among others, sorting out deserving from undeserving immigrants, reinforcing national identity, punishing terrorists and replenishing state coffers. This chapter discusses key citizenship developments in Europe from the perspective of the enduring tensions between lightening and thickening and between denationalisation and r­enationalisation. It focuses on five major issues that challenge the ideal type of modern citizenship 145

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as territorial, political and national membership, namely, international migration, cross-­border ethnic minorities, home-­grown terrorism, marketisation of citizenship and supranational citizenship.

Immigrant integration The historical development of modern citizenship laws in Europe was influenced by factors such as juridical traditions, experiences of colonialisation and migration, processes of democratisation and nation state building (Weil, 2001; Howard, 2009). After the Second World War, citizenship regimes in Western Europe were strongly shaped by the diffusion of human rights norms, such as norms on gender equality and non-­discrimination. They were also affected by the need to integrate the large number of immigrants who arrived in order to fill up the labor gaps in the post-­war European economies. Once it became clear that, despite the expectation of receiving countries, many immigrants would not return to their countries of origin, European countries gradually began to expand access to citizenship to immigrants and their children through more inclusive birthright citizenship and naturalisation. As the experience of traditional countries of immigration shows, ius soli citizenship (where citizenship is granted in virtue of birth on the territory of the state) plays an important integrative function because it ensures the automatic inclusion of children of immigrants into the body of citizens. One clear example of immigration-­induced liberalisation of citizenship in Europe is the adoption by Germany of conditional ius soli provisions in 1999 (Joppke, 2008). However, although many countries in Europe are home to a significant numbers of immigrants, only Moldova (which has an immigrant population of under 4 per cent) provides for unconditional ius soli citizenship. In fact, European countries with strong ius soli traditions, such as the United Kingdom and Ireland, have moved towards more conditional ius soli provisions in response to postcolonial immigration and European integration. Ireland was the last European country to abolish unconditional ius soli citizenship in 2004. The most common conditions for ius soli citizenship are a minimum residence in the country by parents, as in Albania, Belgium, Germany, Ireland, Portugal and the UK. In Belgium, France, Greece, Luxembourg, the Netherlands, Portugal and Spain, children born in the country can acquire citizenship if their parents were also born in the country (EUDO Citizenship/GLOBALCIT, 2015a). An additional restriction to ius soli citizenship is the prohibition of dual citizenship, which means that children of immigrants can obtain citizenship only if they renounce their parents’ citizenship, as required in Austria and Spain. In Germany, a similar restriction was softened in 2014, when ius soli citizens were allowed to retain dual citizenship if they lived and attended school in the country for a period of time. In Europe, ius soli citizenship remains a limited practice that is largely confined to the Western part of the continent (Figure 12.1 shows the countries that have/do not have provisions of ius soli applicable from the child’s birth). Whereas the rules of birthright citizenship have changed only slightly in the last decades, naturalisation rules, on the contrary, have been the privileged arena of legal experimentation and normative debates about citizenship and national belonging in Europe and the EU. Spreading perceptions about immigrants’ failures to integrate, reinforced and exploited by populist anti-­immigration parties, have led to a hardening and renationalisation of naturalisation policies. Although some of the objective requirements of naturalisation have been eased, such as the requirements regarding minimum residence, the more subjective conditions have been tightened. Many European countries have adopted new provisions requiring candidates for naturalisation to prove that they possess certain knowledge (command of language, knowledge about the 146

The governance of citizenship and belonging 24 Armenia Belarus Bosnia and Herzegovina Bulgaria Czech Republic Croatia Estonia Georgia Hungary Kosovo Latvia Lithuania Macedonia Montenegro Poland Romania Russia Serbia Slovakia Slovenia Turkey

21 18 15 12 9 6 3 0

Austria Cyprus Denmark Finland Iceland Italy Liechtenstein Malta Norway Sweden Switzerland Belgium France Germany Greece Ireland Luxembourg Netherlands Portugal Spain UK

Albania Moldova

Western Europe

Central and Eastern Europe Ius soli

No ius soli

Figure 12.1  Ius soli in Western Europe and in Central and Eastern Europe Data source: EUDO Citizenship/GLOBALCIT.

constitution and the country), have an appropriate behaviour (criminal and employment records), or display certain dispositions and commitments (willingness to integrate, loyalty) (Goodman, 2010). This development indicates a reversal of an integration paradigm, in which citizenship is no longer a prerequisite of integration but the crowning of a completed integration process (Bauböck et al., 2006). The rapid spread of citizenship tests in Europe is a clear illustration of this change of paradigm. Whereas comprehensive citizenship tests may increase the level of objectivity in the naturalisation process, and thus reduce discretion and arbitrariness, their rationale and scope are often problematic. This is the case, for example, when citizenship tests are devised in order to scrutinise the inner beliefs of particular groups of people, to assess individual behaviour in specific social interactions or to measure a person’s engagement with particular aspects of a country’s high or popular cultures (Joppke, 2008; Van Oers, 2013). The message is that citizenship is no longer a passive status to be received in virtue of mere presence in the territory but an earned status, obtained through active participation and commitment to the country where one lives. The obvious normative weakness of this position is the fact that the overwhelming majority of (native) citizens acquire citizenship by virtue of birth and are never required to prove their compatibility, attachment or commitment to their country of birth (Shachar, 2009). One of the major contemporary citizenship trends is the increasing tolerance of dual citizenship. This is both a global and a European trend. Whereas only about 20 per cent of the countries in the world allowed naturalised citizens to retain another citizenship in 1960 (28 per cent of European countries), this share grew to about 60 per cent by 2013 (69 per cent of European 147

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countries) (Vink et al., 2016). The toleration of dual citizenship is a consequence of the general application of the principle of gender equality in citizenship matters, which generates dual citizenship for children of parents with different citizenship, and of a rethinking of citizens’ military duties and expectations in the context of Western Europe’s low security risks. However, in 24 European countries candidates to naturalisation are still obliged to renounce another citizenship in order to naturalise (see Figure 12.2). The prohibition of dual citizenship during naturalisation is more prevalent in Central and Eastern Europe than in Western Europe. The arrival in Europe of more than 1 million refugees and immigrants in 2015 alone is set to affect, in the long run, the citizenship regimes of European countries. Due to their geographical proximity to the conflict zones, the Central and Eastern Europe (CEE) countries have been frontline countries that had to deal first with the inflows of refugees. Given the relatively limited experience of these countries with immigration, the arrival of a large number of people has posed immediate challenges of accommodation and integration of newcomers and has reframed political debates about the preservation of national identity in multicultural and multi-­ethnic states. The increase in the number of foreign residents might, in the long run, force CEE countries to adopt rules of ius soli citizenship and to revise provisions prohibiting dual citizenship. However, as the recent case of Greece shows, the path towards more inclusive (birthright) citizenship is neither straightforward nor free from political contestation. In 2010, Greece initiated a reform of its citizenship law in order to establish ius soli citizenship. However, the provisions were blocked and then cancelled by the Council of State, Greece’s Supreme Administrative Court, the ground that automatic ius soli citizenship was incompatible with the state’s right to assess the ‘national consciousness’ of every future citizen.

24 21 18

Belarus Bosnia and Herzegovina Bulgaria Croatia Estonia Georgia Latvia Lithuania Macedonia Moldova Montenegro Russia Serbia Slovenia Armenia Ukraine

Austria Germany Liechtenstein Netherlands Norway Spain

15 12 9 6 3 0

Belgium Cyprus Denmark Finland France Greece Iceland Ireland Italy Luxembourg Malta Portugal Sweden Switzerland UK

Albania Armenia Czech Republic Hungary Kosovo Poland Romania Slovakia Turkey

Western Europe Dual citizenship accepted

Central and Eastern Europe Dual citizenship generally NOT accepted

Figure 12.2  Dual citizenship in Western Europe and in Central and Eastern Europe Data source: EUDO Citizenship/GLOBALCIT.

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National redefinition The dissociation of individual rights from citizenship status in Europe have led authors to proclaim the advent of a new era of ‘postnational membership’ (Soysal, 1994), in which rights are grounded in territorial rather than formal membership. However, recent restrictions on immigration and immigrants’ rights and the attempts to revitalise citizenship as the core basis of national membership contradict this thesis. Citizenship in Europe has recently been renationalised in several ways. In Western Europe, naturalisation policies have been used to test the cultural compatibility of immigrants, particularly of immigrants or descendants of immigrants of Muslim faith (Joppke, 2008). Citizenship policies have also become instrumental to new strategies aiming at reconnecting the state with emigrant diaspora for pragmatic or symbolic reasons (Gamlen, 2008). Many countries in Europe have maintained or upgraded their citizenship ties with peoples living outside borders on the basis of colonial history, past emigration, or ethno-­national solidarity. For example, between 1998 and 2010, Italy granted citizenship to about one million people of Italian descendants from several Latin Amer­ican countries (Tintori, 2012). Similar policies of ancestry-­based citizenship exist in Germany, Spain and Portugal (Harpaz, 2015). In CEE, the renationalisation of citizenship has been triggered by disputes over the situation of cross-­border ethnic diasporas. After 1990 most countries in the region acted as ‘nationalising states’ (Brubaker, 1996), seeking to secure the control of the core ethnic majority over state institutions and over the official definition of the nation. Citizenship policies have been used to ensure the unity of the nation within and across state borders (Pogonyi et al., 2010). Whereas the explicit exclusion from citizenship based on ethnic grounds was prohibited by international norms, which most of these countries were forced to accept as a condition for European and transatlantic integration, indirect exclusion based on seemingly legitimate grounds was still possible. For example, Estonia and Latvia effectively denaturalised large proportions of their populations by reinstating their pre-­Soviet citizenship laws and thus excluding from citizenship all Soviet-­era immigrants and their descendants (Gelazis, 2000). The various projects of national reintegration in CEE have also been pursued via policies of preferential citizenship for co-­ethnics. In these cases, co-­ethnicity is defined directly by reference to ascriptive and subjective characteristics, such as descent, self-­identification and national consciousness, or indirectly, through requirements related to markers of ethnicity such as language and territorial origin (Dumbrava, 2015). A number of countries have granted facilitated access to citizenship to co-­ethnics living in neighbouring countries without conditions of residence or the obligation to renounce other citizenship. Co-­ethnics constitute the primary channel of citizenship acquisition in several CEE countries. About 1.1 million persons acquired Croatian citizenship between 1991 and 2006 on the ground of belonging to Croat ethnicity; about 600,000 persons are estimated to have obtained Hungarian citizenship between 2011 and 2014 on the basis of Hungarian origin; and about 230,000 persons acquired Romanian citizenship between 1991 and 2012 with the title of restitution (Dumbrava, 2017). While delinking citizenship from territory, these policies of extraterritorial citizenship do not amount to a denationalisation of citizenship. On the contrary, they renationalise citizenship by reconstructing the state as a trans-­border entity in the service of a geographically scattered nation. Given the complex history of ethno-­national relations in the region, it is not surprising that such citizenship policies have triggered several diplomatic conflicts, such as the one between Hungary and Slovakia (Bauböck, 2010). When the massive distribution of passports abroad is accompanied by full political inclusion through external voting, the worry is that external citizens obtain an unfair influence on democratic politics because they participate in political 149

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decisions but are not directly affected by them. While this concern is valid for cases of diaspora political participation more generally, in the CEE the cross-­border character of ethnic diasporas, in the context of historically contested statehood and fragile democratic institutions, make extraterritorial citizenship particularly dangerous.

Citizenship deprivation and terrorism Citizenship laws make and un-­make citizens. The overwhelming majority of people acquire citizenship at birth and retain it throughout their life. However, there is a small proportion of people who gain citizenship after birth (through naturalisation), as well as a fraction of people who lose their citizenship before their death. Despite the fact that the right to a citizenship has been proclaimed on many occasions, starting with the Universal Declaration on Human Rights, the state enjoys a sovereign right to regulate citizenship. This sovereign power appears starkly in the case of the deprivation of citizenship. Most citizenship laws in Europe contain various and often ambiguous provisions on the involuntary loss of citizenship, including in cases of acquisition of another citizenship, residence abroad, taking service in a foreign army, acts of disloyalty or treason, and fraudulent acquisition of citizenship. In 21 European countries, persons can be deprived of citizenship on grounds of treason or disloyalty. The actions covered by these grounds include: committing serious crimes against the country (Belgium, Bosnia and Herzegovina, Bulgaria, Denmark and the Netherlands) acting against a country’s constitutional order and institutions (Denmark, Estonia, France, Latvia and Lithuania), showing disloyalty by act or speech (Cyprus, Malta and Ireland) and, more generally, acting against national interests (Greece, Kosovo, France, Moldova, Montenegro, Romania, Slovenia, Switzerland, Turkey and the UK) (EUDO Citizenship/GLOBALCIT, 2015b). In Belgium, Bulgaria, Cyprus, Estonia, France, Ireland, Lithuania and Malta, these grounds of deprivation apply only to naturalised citizens. Involvement in terrorist activities is explicitly mentioned as reasons for withdrawal of citizenship in Montenegro, France and the Netherlands. The recent terrorist attacks in Europe and the subsequent intensification of security concerns among citizens and policy-­makers have pushed a number of states to reactivate and expand legal provisions on deprivation of citizenship in order to deter, punish and discredit terrorists. The UK has gradually expanded the grounds for the deprivation of citizenship. Whereas before 2006 the deprivation of citizenship was triggered by acting against the UK’s ‘vital interest’, after 2006 the Secretary of State gained the power to withdraw citizenship if this was ‘conducive to the public good’ (Gibney, 2013). In response to the terrorist attacks on Paris in November, 2015, the French president proposed a revision of the constitution in order to allow the government to withdraw citizenship from French citizens by birth if they engaged in terrorist activities. The proposal was abandoned after the Justice Minister Christiane Taubira presented her resignation. Following the Charlie Hebdo attack in Paris, the Belgian government pushed through a proposal allowing the withdrawal of citizenship from naturalised dual citizens who have been sentenced to more than five years in prison for a terrorist offence. Similar proposals were discussed but later discarded in Sweden and the Netherlands. The new emphasis on citizenship deprivation has been interpreted as both a sign of strengthening and of weakening citizenship. Defenders of citizenship deprivation argue that withdrawing citizenship from those who pose imminent and existential threats to the state ‘strengthens citizenship by reaffirming the conditions on which it is based’ (Shuck, 2015, p.  9). Critics respond, however, that the practice weakens citizenship because it makes it contingent on citizens’ performance. It also increases ‘the discretionary and arbitrary power of the executive, 150

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at the expense of all citizens, and of citizenship itself ’ (Macklin, 2015). While supporting, in principle, the power of the state to withdraw citizenship as a matter of punishment, Joppke (2016) interprets the return of citizenship deprivation as another aspect of the process of the ‘lightening’ of citizenship: easier to get, easier to lose. One of the most important legal and theoretical objections against citizenship deprivation is the duty of states to prevent statelessness. This legal constraint explains why most deprivation provisions only concern dual citizens. But making the citizenship of dual citizens less secure than that of mono-­citizens raises questions about citizenship equality. In a similar way, distinguishing between naturalised citizens and native citizens for the purpose of citizenship deprivation leads to the creation of different classes of citizens. Lastly, there are doubts about the actual usefulness of citizenship deprivation as an instrument for fighting terrorism, given that other means (such as criminal sanctions and withdrawing mobility rights) could better serve the purpose. While cutting off terrorists from citizenship might bear some political and symbolic significance, it is unclear how further securitising citizenship reaffirms the value of citizenship and ensures the much sought-­after loyalty and commitment of citizens.

Citizenship for sale If restricting access to citizenship to immigrants and expanding access to citizenship to emigrants and co-­ethnics are markers of the renationalisation of citizenship in Europe, making citizenship easily available to investors and wealthy people could be seen as a sign of the denationalisation of citizenship. Although the number of those who become citizens in exchange for financial or other economic contributions is still relatively low, the spread of such practices raises a number of important questions about the meaning and the functions of citizenship in a globalised world. Selling citizenship may be considered as one form of market-­oriented membership policies, along with various immigration schemes designed to attract highly skilled workers, emigrants or entrepreneurs. Most citizenship laws in Europe have provisions for the exceptional naturalisation of persons with special talents, extraordinary achievements or who bring significant contributions to the state. This channel is often used to naturalise sportsmen or artists, and occasionally, investors and wealthy people. Bulgaria, Cyprus, Malta, and Romania have developed specific investor citizenship programs, comparable to those of the island states of Antigua and Bermuda, Saint Christopher and Nevis and the Commonwealth of Dominica (Dzankic, 2015). Cyprus introduced its investor citizenship scheme in May 2013 in the context of a severe economic crisis that prompted its international bailout. The scheme aimed, on the one hand, to attract much needed capital – it offered citizenship in exchange of an investment of at least five million euro in the country – and, on the other hand, to compensate foreign investors who lost their investments (at least three million euro) due to governmental measures targeting the crisis. Apart from these financial contributions, the applicants were required to have a clean criminal record and to have visited Cyprus at least once. In October 2013, the Maltese government adopted a decision to allow persons who invest at least 650,000 euro in the country to obtain quick access to Maltese citizenship. The scheme did not require the investors to take up residence in Malta or to comply with any other naturalisation conditions. The investor citizenship programs of Bulgaria and Romania require applicants, among others, to reside in the country (one year in Bulgaria and four years in Romania). The case of investor citizenship brings to the fore key questions about the meaning of citizenship (Shachar and Bauböck, 2014). Exchanging citizenship for money seems to go against a 151

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well-­established idea that citizenship should be based on a ‘genuine link’. As defined by the International Court of Justice (ICJ) in the Nottebohm case (1955), citizenship is ‘a legal bond based on a social fact of attachment, a genuine connection of existence, interests, and sentiments, together with the existence of reciprocal rights and duties’. While the legal doctrine of genuine link remains contested, its echoes could be observed in a number of international law documents on citizenship matters. For example, the 1997 European Convention on Nationality allows states to withdraw citizenship from persons who habitually reside abroad (provided that they do not become stateless), thus interpreting residence in the country as proof of genuine link. A strong normative objection against selling citizenship is that citizenship represents membership in a political community and, given the nature and the value of such membership, it cannot and should not be for sale (Shachar, 2014). Selling citizenship undermines citizenship equality, corrupts democracy, and gives the rich unfair advantages. Investor citizenship is also at odds with recent attempts to reframe citizenship in terms of active social integration and sharing in a common identity (Barbulescu, 2014). Defenders of investor citizenship, however, retort that taking citizenship on the market brings benefits for everybody and creates additional channels for global mobility (Kochenov, 2014). Investor citizenship is also not the only problematic way of acquiring citizenship, as most other channels of citizenship acquisition, such as birthright citizenship, are equally arbitrary. The marketisation of citizenship is arguably only a symptom of a larger trend of devaluation and hollowing of citizenship (Spiro, 2014). However, the fact that the Maltese scheme generated heated debates, both at national (according to a poll, the majority of Maltese disapproved of it) and European level, casts doubt over claims about the inevitable demise of traditional models of national citizenship based on more substantive links than cold cash. Apart from normative considerations, investor citizenship raises a series of practical concerns about tax evasion, corruption, extradition and security. The practice has been tainted by a number of scandals. For example, in 2009, an Austrian politician promised facilitated citizenship to a Russian investor in exchange of five million euro (a share of which to be donated to the politician’s party). In 2011, Cyprus granted citizenship to Rami Makhlouf, the cousin of President Bashar al-­Assad, only to revoke it in 2012. These scandals parallel similar ones related to co-­ethnic citizenship policies in CEE. Although the rationale of co-­ethnic citizenship is completely different than that of investor citizenship, in practice, many persons abuse the rules of co-­ethnic citizenship by ‘buying’ passports from corrupt bureaucrats and middlemen. For example, in 2012 the Romanian authorities unveiled a series of corrupt practices and abuses related to the facilitated acquisition of Romanian citizenship. In 2014 investigative journalists have uncovered a complex network of corrupt officials and middlemen cashing up to 10,000 euro in exchange for a Hungarian passport, while reporters of the Telegraph released a video of a Bulgarian businessman offering them a ‘fast track’ to a Bulgarian passport at the cost of 180,000 euro.

EU citizenship The EU citizenship was established in 1991 by the Treaty on European Union in order to promote European values and identity. The Treaty confers EU citizens a set of rights, such as the right of free movement, the right of diplomatic protection, the right to vote in and stand in the elections for the European Parliament. Some of these rights can be exercised only when moving from a member state to another. This primary focus on individual rights and the virtual absence of (EU) citizen obligations makes EU citizenship an ideal candidate for the title of postnational citizenship or, as Joppke called it, ‘citizenship lite’ (2010). 152

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EU citizenship depends strictly on national citizenship since EU citizens are only those who already hold the citizenship of an EU member state. Member states preserve the right to regulate the acquisition and loss of national citizenship in ways that reflect their interests and identities. However, although the EU does not have legal competences in the area of acquisition or loss of national (and thus EU) citizenship, the European Court of Justice (ECJ) has gradually broadened the scope of EU citizenship in relation to national citizenship by imposing certain limits to the power of member states to regulate national citizenship (Shaw, 2011). In the Micheletti case, the ECJ held that that EU member states can lay down the conditions for the acquisition and loss of citizenship but they cannot restrict the effects of the granting of citizenship of another member state by imposing additional conditions for the recognition of that citizenship. The possession of the formal status of citizenship of a member state should trigger effective access to EU citizenship rights. In the Chen case, the ECJ distinguished circumstances in which the basic rights of EU citizenship need to be asserted against, or independent of, the status of national citizenship. In this case, the ECJ granted a non-­EU citizen the right to stay on the territory of a member state in order to provide care for a minor EU citizen. The case prompted Ireland to restrict ius soli provisions in order to eliminate perverse incentives to give birth in the country. In the Rottman case, the ECJ maintained that the loss of EU citizenship fell ‘by reason of its nature and its consequences, within the ambit of European Union law’. Rottman was a former Austrian national who naturalised in Germany but then lost German citizenship. Being unable to reacquire Austrian citizenship, Rottman effectively lost the status of EU citizen when Germany withdrew its citizenship. In its Opinion on the Rottman case, Advocate General Maduro stated that ‘Union citizenship assumes nationality of a Member State but it is also a legal and political concept independent of that of nationality’. Given the important function of European citizenship, as the legitimising the Community legal order, Maduro argued, ‘the conditions for the acquisition and loss of nationality must be compatible with the Community rules and respect the rights of European citizen’. Holding that measures to deprive persons of EU citizenship affect the rights conferred in the EU legal order, the ECJ asked national courts to apply a proportionality test to establish whether that loss of citizenship was justified in view of the impact of the measure on European citizenship. The Maltese case of investor citizenship had a clear European dimension because Malta deliberately sought to sell its citizenship as a package together with the, arguably more valuable, status of EU citizenship. Although some commenters argued that the Maltese policy did not breach EU law (Shachar and Bauböck, 2014), the case raised concerns about the reciprocal obligations of member states. The general EU legal principles of sincere or loyal cooperation require member states to assist each other in carrying out tasks that flow from the Treaties and to ‘refrain from any measure which could jeopardise the attainment of the Union’s objectives’. This principle was (unsuccessfully) invoked previously with regard to Spain’s’ programmes of mass regularisation of immigrants and against Romania’s extensive policy of granting citizenship to large numbers of non-­EU citizens. Whereas in the past the EU institutions have expressed only limited concerns on such issues, their stance toughened noticeably in the Maltese case. In a resolution of January 2014, the European Parliament (2014) stated that the ‘outright sale of EU citizenship undermines the mutual trust upon which the Union is built’. It maintained that ‘EU citizenship implies the holding of a stake in the Union’ and this ‘should never become a tradable commodity’. The European Commission (2014) followed up on this debate by arguing that member states should ‘use their prerogatives to award citizenship in a spirit of sincere cooperation with the other member states and the EU’ and that ‘investor citizenship schemes providing for the possibility to obtain naturalisation in return for investment alone do not meet the minimum 153

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requirement of a genuine link to the country’. As the Commission threatened to launch formal infringement proceedings, Malta amended the scheme to include a one-­year residence requirement. Whether a one-­year of residence in the country creates the necessary genuine link for access to citizenship is, of course, an open question. The Maltese affair and the unprecedented political reactions at the EU level have provided an opportunity to re-­examine the relationship between EU citizenship and national citizenship and to bring forward the principle of sincere cooperation in citizenship matters. However, by framing EU citizenship in terms of a genuine rather than formal link, the EU may indirectly encourage member states to misuse the idea of genuine link in order to legitimise nationalistic and exclusionary citizenship policies (Carrera, 2014).

Conclusion Despite talks about the inevitable demise of citizenship in an era of increased international migration, economic globalisation, and transnational connections, citizenship remains a privileged, though not always legitimate or effective, tool for tackling challenges as various as integrating immigrants, reuniting the nation beyond borders, putting off terrorists or navigating the waters of financial crisis. This rebirth of citizenship comes with both opportunities and risks. Reaffirming and debating citizenship could help building more legitimate institutions and more inclusive narratives of belonging. For this further research is needed on the impact of citizenship rules on different levels of integration and more critical reflection on the legitimate purposes and limits of (national) citizenship. With nationalism rising in Europe and elsewhere, there is a clear danger of the renationalisation of citizenship. This could revert some of the liberal achievements with regard to immigrants’ easier access to citizenship, greater acceptance of dual citizenship, and stronger guarantees against citizenship deprivation. Retaking control of national citizenship could also impede progress on developing international legal standards on citizenship, such as on preventing statelessness, and could bring to a halt the project of building a genuine EU citizenship. One of the main approaches to the study of citizenship in social sciences has been to identify and elaborate specific (national) models or philosophies of integration, that describe relatively stable sets of institutions and norms; i.e. French republicanism, German ethno-­nationalism, Amer­ ican multiculturalism, Dutch multiculturalism, etc. These national models, however, have been increasingly criticized as empirically unreliable, conceptually confusing and normatively suspicions (Bertossi and Duyvendak, 2012). Refocusing on the politics of citizenship, on the political mobilisation of immigrants and their descendants, and on the political implications of demographic changes (e.g. shifts in the ethnic or racial composition of populations in Europe and the US) may offer promising alternatives or correctives to the traditional approach of national models. The comparative research on citizenship laws has grown impressively and has moved beyond simple inventories of selected citizenship rules and beyond the geographical confines of Europe and the West. This wealth of contextualised data should give researchers a formidable grounds for exploring citizenship configurations, testing hypotheses about the determinants and the implications of citizenship policies, and developing much needed empirically-­grounded normative theories.

References Barbulescu, R., 2014. Global mobility corridors for the ultra-­rich. The neoliberal transformation of citizenship. In: A. Shachar and R. Baubök, eds, Should Citizenship be for Sale? San Domenico di Fiesole: European University Institute. pp. 15–16.

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The governance of citizenship and belonging Bauböck, R., ed., 2010. Dual Citizenship for Transborder Minorities? How to Respond to the Hungarian-­Slovak Tit-­for-Tat. San Domenico di Fiesole: European University Institute. pp. 15–16. Bauböck, R., E. Ersboll, K. Groenendijk and H. Waldrauch, eds, 2006. Acquisition and Loss of Nationality. Vol. 1. Amsterdam: Amsterdam University Press. Bauböck, R. and M. Tripkovic, eds, 2017. The Integration of Migrants and Refugees. An EUI Forum on Migration, Citizenship and Demography. San Domenico di Fiesole: European University Institute. Bertossi, C. and J. W. Duyvendak, 2012. National models of immigrant integration: The costs for comparative research. Comparative European Politics, 10(3) pp. 237–47. Bosniak, L., 2006. The Citizen and the Alien: Dilemmas of Contemporary Membership. Princeton: Princeton University Press. Brubaker, W. R., 1996. Nationalizing states in the new old ‘New Europe’ – and the new. Ethnic and Racial Studies, 19(2) pp. 411–37. Carrera, C., 2014. How much does EU citizenship cost? The Maltese citizenship-­for-sale affair: A breakthrough for sincere cooperation in citizenship of the union? CEPS. [online]. Available at: www.ceps.eu/publications/ how-much-does-eu-citizenship-cost-maltese-citizenship-sale-affair-breakthrough-sincere [Accessed 14 February 2017]. Dumbrava, C., 2014. Nationality, Citizenship and Ethno-­Cultural Belonging: Preferential Membership Policies in Europe. Basingstoke: Palgrave Macmillan. Dumbrava, C., 2015. Super-­foreigners and sub-­citizens. Mapping ethno-­national hierarchies of foreignness and citizenship in Europe. Ethnopolitics, 14(3) pp. 296–310. Dumbrava, C., 2017. Citizenship in Central and Eastern Europe. RSCAS/GLOBALCIT Comparative report. San Domenico di Fiesole: European University Institute. Dzankic, J., 2015. Investment-­based Citizenship and Residence Programmes in the EU. San Domenico di Fiesole: European University Institute. EUDO Citizenship/GLOBALCIT, 2015a. Global database on modes of acquisition of citizenship. [online] Available at: http://globalcit.eu/acquisition-citizenship/ [Accessed 15 February 2017]. EUDO Citizenship/GLOBALCIT, 2015b. Global database on modes of loss of citizenship. [online] Available at: http://globalcit.eu/loss-of-citizenship/ [Accessed 15 February 2017]. European Commission, 2014. Answer given by Mrs Reding on behalf of the Commission. [online] Available at: www.europarl.europa.eu/sides/getAllAnswers.do?reference=E- 2014-000061&language=EN [Accessed 14 February 2017]. European Parliament, 2014. Resolution of 16 January 2014 on EU citizenship for sale. [online] Available at: www. europarl.europa.eu/sides/getDoc.do?type=TA&reference=P7-TA-2014-0038&language=EN&ring=P7RC-2014-0015 [Accessed 14 February 2017]. Gamlen, A., 2008. The emigration state and the modern geopolitical imagination. Political Geography, 27(8) pp. 840–56. Gelazis, N. M., 2000. The Effects of EU Conditionality on Citizenship Policies and Protection of National Minorities in the Baltic States. San Domenico di Fiesole: European University Institute. Gibney, M. J., 2013. ‘A very transcendental power’: Denaturalisation and the liberalisation of citizenship in the United Kingdom. Political Studies, 61(3) pp. 637–55. Goodman, S., 2010. Naturalisation Policies in Europe: Exploring Patterns of Inclusion and Exclusion. San Domenico di Fiesole: European University Institute. Harpaz, Y., 2015. Ancestry into opportunity: How global inequality drives demand for long-­distance European Union citizenship. Journal of Ethnic and Migration Studies, 41(13) pp. 2081–104. Howard, M. M., 2009. The Politics of Citizenship in Europe. Cambridge: Cambridge University Press. Joppke, C., 2005. Selecting by Origin: Ethnic Migration in the Liberal State. Cambridge: Harvard University Press. Joppke, C., 2008. Comparative citizenship: A restrictive turn in Europe? Law & Ethics of Human Rights, 2(1) pp. 1–41. Joppke, C., 2010. Citizenship and Immigration. Cambridge: Polity Press. Ch. 5. Joppke, C., 2016. Terror and the loss of citizenship. Citizenship Studies, 20(6–7) pp. 728–48. Kochenov, D., 2014. Citizenship for real: Its hypocrisy, its randomness, its price. In: A. Shachar and R. Baubök, eds, Should Citizenship be for Sale? San Domenico di Fiesole: European University Institute. pp. 27–30. Kymlicka, W. and W. Norman, 1994. Return of the citizen: A survey of recent work on citizenship theory. Ethics, 104(2) pp. 352–81. Macklin, A., 2015. Kick-­off contribution. In: A. Macklin and R. Bauböck, eds, The Return of Banishment:

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Costica Dumbrava Do the New Denationalisation Policies Weaken Citizenship? San Domenico di Fiesole: European University Institute. pp. 1–6. Pogonyi, S., M. M. Kovács and Z. Körtvélyesi, 2010. The Politics of External Kin-­State Citizenship in East Central Europe. San Domenico di Fiesole: European University Institute. Shachar, A., 2009. The Birthright Lottery: Citizenship and Global Inequality. Cambridge: Harvard University Press. Shachar A., 2014. Dangerous liaisons: Money and citizenship. In: A. Shachar and R. Baubök, eds, Should Citizenship be for Sale? San Domenico di Fiesole: European University Institute. pp. 3–8. Shachar A., and R. Baubök, eds, 2014. Should Citizenship be for Sale? San Domenico di Fiesole: European University Institute. Shaw J., ed., 2011. Has the European Court of Justice Challenged Member State Sovereignty in Nationality Law? San Domenico di Fiesole: European University Institute. Shuck, P. H., 2015. Terrorists repudiate their own citizenship. In: A. Macklin and R. Bauböck, eds, The Return of Banishment: Do the New Denationalisation Policies Weaken Citizenship? San Domenico di Fiesole: European University Institute. pp. 9–10. Soysal, Y. N., 1994. Limits of Citizenship. Migrants and Postnational Membership in Europe. Chicago: University of Chicago Press. Spiro, P. J., 2011. A new international law of citizenship. The Amer­ican Journal of International Law, 105(4) pp. 694–746. Spiro, P. J., 2014. Cash-­for-passports and the end of citizenship. In: A. Shachar and R. Baubök, eds, 2014. Should Citizenship be for Sale? San Domenico di Fiesole: European University Institute. pp. 9–10. Tintori, G., 2012. More than one million individuals got Italian citizenship abroad in twelve years (1998–2010). EUDO Citizenship Observatory. [online] Available at: http://eudo-citizenship.eu/news/ citizenship-news/748-more-thanone-million-individuals-got-italian-citizenship-abroad-in-thetwelve-years-1998-2010 per cent3E/ [Accessed: 15 February 2017]. Van Oers, R., 2013. Deserving Citizenship: Citizenship Tests in Germany, the Netherlands and the United Kingdom. Leiden: Martinus Nijhoff. Vink, M.P., G.-R. de Groot and C. Luk, 2016. MACIMIDE global dual citizenship database. [online] Available at: https://macimide.maastrichtuniversity.nl/dual-cit-database/ [Accessed 16 February 2017]. Weil, P., 2001. Access to citizenship: A comparison of twenty-­five nationality laws. In: A. T. Aleinikoff and D. Klusmeyer, eds, Citizenship Today: Global Perspectives and Practices. Washington DC: Carnegie Endowment for International Peace. pp. 17–35.

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13 Beyond national models Comparing migrant integration regimes Christophe Bertossi and Jan Willem Duyvendak

Introduction The notion of national models of integration has been a very popular one in the comparative literature on Europe and has offered some advantages for research on the incorporation of immigrants and their offspring. Since the 1990s, it has helped scholars identify differences among countries and their respective policies and public conceptions of citizenship – such as republican assimilation in France, pluralist or multiculturalist models in Britain and the Netherlands, and the so-­called ethno-­nationalist model of Germany. Since then, models have been the ground of numerous international comparative studies to assess processes of convergence or divergence between various European countries. Conceptually, models have been defined in various ways borrowing from different social and political scientist paradigms. Within the perspective of historical sociology, for example, the notion of ‘cultural idiom’ as proposed by Theda Skocpol (1985) was used by Rogers Brubaker (1992) in his seminal study of citizenship and nationhood in France and Germany in the late nineteenth and early twentieth century. New institutional approaches were based on the notion of ‘policy paradigm’, developed by Peter Hall (1993) and used by Adrian Favell (1998) in his comparison between France and Britain in the post-­war era. The sociology of social movements also contributed to the discussion about models and their evolution in Europe, using the concept of ‘opportunity structure’, as did Koopmans and his colleagues in their comparison of citizenship in Britain, France, the Netherlands and Switzerland (2005). However, despite (or probably because) of its success as a way to conceive of the structural and sociohistorical articulation between political national traditions, public perceptions, institutions and the policymaking of migration and integration, models have tended to become more often than not a non-­reflexive tool, the career of which has been deeply rooted in the evolution of the politics that have agitated Western European public debates about immigration, multiculturalism, and Islam over the last two to three decades. In the social science literature, this has led to instances where a model is blamed for the success or failure of a specific policy approach. For instance, various authors have blamed the Dutch multicultural model for the alleged failure of immigrant integration in the Netherlands. As a result, a new discussion about models started in the late 2000s, and emphasized the limits of the notion and the need to critically reassess its adequacy as a tool for comparative research (Joppke, 2007; Scholten, 2009; Bertossi, 2011; Van 157

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Reekum, Duyvendak and Bertossi, 2012). We propose to come back to these discussions. We highlight some of the key problems of models that have affected comparative research on migration, integration and multiculturalism, and we conclude with some comments about how comparative research interested in national cultural configurations of citizenship and immigration issues could be more effective.

The invention of models of citizenship and immigrant integration The notion of national models of citizenship and immigrant integration emerged in a specific social and political context. With the durable settlement of (post) colonial migrants as well as the former ‘guest workers’ and their family, the integration of immigrants became an important public issue in the 1980s in Western Europe, in countries like France, the Netherlands and Germany. The question was whether this newly settled foreign population and their children could access their host countries’ citizenship and institutions, what could account for cross-­ national institutional variations regarding their incorporation, and the impact these differences had on their socioeconomic and cultural integration. Partly trying to make sense of this shift, and partly responding to a strong political and public demand, scholars have forged the notion of national models in order to describe different national approaches to integration. They proposed different typologies, suggesting a strong correlation between the institutional and ideological logics of these countries’ political traditions (in terms of a ‘national idiom’ or a ‘nation’s cultural self-­understanding’), and the policies of migrants’ integration (nationality law, immigration regime, different social policies, etc.) one could find in these countries. As a result, notions of multiculturalism, republicanism and ethnic exclusion were extensively discussed and, associated with individual countries, they became the key categories for comparative research on citizenship and immigrants’ integration. If this framework happened to be questioned in the mid-­1990s by a new ‘postnational’ or ‘transnational’ horizon for apprehending citizenship and integration in Europe (Bauböck, 1994; Soysal, 1994), ‘neo-­nationalistic’ trends (Feldblum, 1999) in the politics of immigration and integration at the end of the 1990s and the beginning of the 2000s brought national models back at the centre of discussions among scholars interested in citizenship and integration. Of more particular concern was the question whether ‘failures’ or ‘successes’ in immigrant integration could be explained by past policies that could be situated in the oppositions between French civic republicanism, Dutch and British multiculturalism, and German so-­called ethno-­national conception of citizenship. As a result, behind the discussions about the heuristic potential of national models that could overcome their static and deterministic dimension (Finotelli and Michalowski, 2012), scholars became involved in debates about the political models behind these analytical categories, most of the battle being focused on the so-­called ‘retreat’ of multiculturalism in countries like the Netherlands and Britain (Vertovec and Wessendorf, 2009), and the evaluation of the discrepancies between the categories used in public and political debates, the actual institutional and policy arrangements, and the outcomes of these policies in terms of immigrant’s (more or less successful) integration (see Vink and Hebling, 2013).

The limits of models The question of models is a question about comparative research. Comparison is strategic for overcoming a national bias in the categories used by scholars in their research on immigration, immigrant incorporation, and citizenship. From this perspective, models have played a positive role, stimulating reflexivity among scholars regarding their national framings. However, comparison 158

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also demands specific precautions, particularly concerning the risk of ‘culturalism’, insofar as research that compares cultural configurations can lead to essentialize preconceived cultural differences between homogeneous national conceptions. This risk is not so big in a strategy that can be labelled as ‘pluralist’ and insists on the internal cultural and normative heterogeneity of models as cultural constructs that develop and change over time (see for an example Lamont and Thévenot, 2000). By contrast, a ‘monist’ strategy frames national cultures as uniform and unequivocal sets of norms, values, institutions, ways of thinking and acting. Within this second strategy, citizenship and migration policies are seen as moulded by one national principle described as coherent, stable and sufficient to account for differences between countries – for example laïcité in France, race in Britain or pillarization in the Netherlands. Within this second perspective, France is conceived as an assimilationist country because of its civic republican tradition (as opposed to multiculturalist countries such as Britain or the Netherlands, and to an ethno-­cultural national identity, as is the case in Germany). In turn, because France is a republican country, its notion of the Republic is seen as all-­ encompassing – the Republic organizes the separation between public and private realms (through a strict colourblind approach to ethnicity and race), between the state and the church (the philosophy of French secularism – laïcité), and it underpins the specifically French ‘political’, ‘open’ definition of citizenship and immigrant incorporation. By contrast, in Britain and the Netherlands, multicultural norms are viewed as enabling people to mobilize on the basis of ethnic or racial identities, while integration policies aim at promoting group-­based identities instead of a common citizenship (Koopmans et al., 2005; Koopmans and Statham, 2005; Sniderman and Hagendoorn, 2007). Such a sharp polarization between models leads some authors to claim that multiculturalism remains something undoubtedly ‘un-­French’ (see Jennings, 2000). What seems important here is that both strategies have very opposite results when it comes to accounting for change. While a ‘pluralist’ approach is sensitive to the historicity of models as political and cultural constructs, the ‘monist’ perspective only offers a quasi-­historical view because it supposes a priori continuity in the ‘self-­understanding’ of a nation. Hence the difficulty of connecting this monist approach to the work by historians who have studied the ruptures and tensions in the emergence of national political traditions and forms of solidarity based on citizenship in the late nineteenth century (see Rosanvallon, 1984; Noiriel, 1988). This also leads to a miscomprehension of social and institutional realities, insofar as empirical reality can depart from what could be expected from a model perspective – for example, the French military is the only Western military institution that organizes the pilgrimage of its Muslim soldiers to Mecca every year, ‘despite’ the French ‘separation’ of State and Church and assimilationist model widely used by comparative social and political scientists (see Bertossi, 2016). In ������������������������������������������������������������������������������������������ the Dutch case the multicultural model was empirically stretched into the days of ‘pillarization’, rewriting history (on the pillarization myth, see for example Vink, 2007). Koopmans (2007) roots the Dutch multicultural approach to immigrant integration clearly in the history of pillarization when ethno-­cultural cleavages were stressed. He claims that the application of this model on new immigrant groups has had strong adverse effects, as multiculturalism ‘offers new ethnic and religious groups a formal and symbolic form of equality, which in practice reinforces ethnic cleavages and reproduces segregation on a distinctly unequal basis’ (2007: 5). Although he admits that formal policy discourse and public discourse have changed, Koopmans argues that in their actual way of dealing with ethno-­cultural diversity the Dutch have remained accommodative: The Netherlands is still an extreme representative of a ‘multicultural’ vision of integration. (…) Outside the limited world of op-­eds in high-­brow newspapers, the relation 159

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between Dutch society and its immigrants is still firmly rooted in its tradition of pillarization (…) (O)rganizations and activities based on ethnic grounds are still generously supported – directly and indirectly – by the government. (Koopmans, 2007: 4) The risk of modelling is that the models are not only taken as tools for international comparison or for understanding a certain historical period. When a model begins to shape our understanding and beliefs about policies, the model becomes more than just an analytical model: the model is instead taken as an accurate historical reconstruction of policy rather than as a model of it. Models then take the place of historical analysis (Duyvendak and Scholten, 2011, 2012), mis-­portraying what is actually happening, suggesting much more continuity than actually exists (few scholars would seriously claim that the Netherlands was still in 2006 an ‘extreme representative of a multicultural vision of integration’). Another limit of the notion of models has to do with the extent to which its definition by scholars is very close to the discourse of a variety of stakeholders in political and media spheres. Analytical ideal types of French republicanism or British and Dutch multiculturalism are akin to political stereotypes, commonly held in public and political debates in each country. When sociologists, political scientists, historians or philosophers discuss republican or multicultural models, they are not writing about anything different than what politicians and journalists talk and write about, even if scholars (sometimes) discuss the models in a different manner. The notion of models used by scholars is heteronomous: academic discussions on models are pervaded by normative, political and moral interests, which stem from ideological debates in the public arena in which scholars also take part (Essed and Nimako, 2006; Bowen, 2007; Scholten, 2009). The problem here is that scholarly notions of integration models reflect and are influenced by public debates, which in turn are structured by dominant and elite-­shaped frames, among whom influential scholars (see Uitermark, 2012). This normative dimension is strikingly obvious in the literature that has addressed the issue of a possible ‘crisis’ of models of integration in Europe since the beginning of the 2000s (Vertovec and Wessendorf, 2009). Research on the integration of immigrants in Europe has turned into discussions about the success or failure of traditional integration policies, assuming that specific claims made by ethnic minorities, particularly when these claims are made by Muslims (Koopmans and Statham, 2005; Joppke, 2007, 2009; see also Klausen, 2005), show the failure of integration caused by the multicultural model, measured in terms of Muslims’ loyalty and incorporation (‘are they with us or against us?’)?

The entanglement of policies and scholarship From the 1980–1990s onwards, the notion of national models has gained purchase in both academic and policy debates. This tendency in the literature need not have been intentional and fully understood at the time. It is more realistic to see the conceptualization of national models as a somewhat unintended consequence of the dynamic between particular developments in the academic field and the concerns of policy makers. From a policy domain perspective, the tendency to use nation-­states as the level of analysis seems rather obvious. The whole point of integration policies is the idea that newcomers need to be brought into a national fold. The idea that policies should, somehow, add up to a coherent and stable construct of national citizenship is almost inevitably inherent in the very idea of developing such policies. The prevalence of national models in policy debates is clearly part of the political nationalism inherent to such forms of governance. However, the tendency among 160

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researchers to also aggregate policies within the container of nation-­states is more ambiguous and needs clarification. Here, it is far less obvious why the aggregation of policies into national models would turn out to provide the most relevant insights (Duyvendak et al., 2013). How to understand the popularity of national modelling among social scientists? In part, researchers have all too often taken over the politically motivated questions of policy makers and politicians. In service of specific political concerns, researchers have tended to research immigration and diversity while taking for granted the existence and preservation of nation-­states, national identities and a national people. As long as the often-­implicit research question tends to be the extent to which and the ways in which nation-­states are able to preserve themselves and their populations under conditions of intensified immigration and transnationalism, the identification of national models makes methodological sense. The problem with this approach is, however, that it assumes what it seeks to explain. Why study the policy responses to immigration and diversity when one has already assumed that nation-­states can be identified with philosophically coherent and historically stable models of integration? Isn’t the point of studying these politics and policies the fact that the nation-­states and national identities remain contentious entities? What policy makers must assume almost by default – the overriding integrity of nation-­states –, researchers should question by default as well: how do people in fact succeed or fail in constructing the nation-­state day by day? The tendency to uncritically adopt political assumptions about the integrity of nation-­states was greatly spurred by the salience of France and Germany in the empirical analysis of citizenship regimes. Rogers Brubaker’s groundbreaking historical reconstruction of French and German citizenship, published in 1992, exerted a huge influence on the field. France and Germany did indeed seem to provide clear cases of different, coherent and stable notions of national citizenship: one republican, one ethno-­national. While Brubaker’s study presents the contentiousness of national citizenship in great detail – and Brubaker has gone on to add more and more ethnographic detail in his later work – the notion of different, coherent and stable regimes of citizenship turned out to be highly applicable in the academic shift taking place at the time: from conceptual, philosophical discussions over citizenship and diversity towards more empirically oriented research practices, in the vicinity of policy makers and politicians increasingly concerned with the integration of newcomers. With the methodological construction of national models, political philosophies and their philosophers had found – or so it seemed – their empirical instantiations. As Britain and the Netherlands began to stand for ‘multiculturalism’, the perceived success or failure of those states to manage immigration and diversity could at the same time become a verdict on normative systems of philosophical thought. An example of this shift towards empirical validation of philosophical systems is Contested Citizenship (Koopmans et al., 2005), in which national models, based on aggregated indicators, are positioned in a stable space of ‘philosophical possibilities’. This brand of analysis overlooks, however, that nation-­states ‘move in regime space’, precisely because actors in and outside those states constantly problematize what the possibilities of citizenship in fact are. A substantial part of the contention impacting policy is about the meanings and implications of republicanism, laïcité, pillarization, multiculturalism, diversity, tolerance, equity, anti-­racism and human rights. One can of course follow a nominalist strategy and label specific sets of indicators ‘republicanist’, while labelling others ‘multiculturalist’. The crucial connection to political contention, in which such terms are highly polysemic, must then be relinquished. The complicating factor in studying the politics of immigration and diversity is that there is not only contention between philosophies, but also and sometimes most poignantly contention over philosophies. In that sense, the daily discussions over integration policies in bars, parliaments 161

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and newspapers proceed quite differently from academic debates in which people make a focused, yet never entirely successful effort to define their terms. It seems, then, that the concept of national model does the conceptual work of an all-­tooconsensual notion of political culture. The concept assumes that nation-­states can be characterized by coherent politico-­cultural ideas about citizenship and that these ideas path-­dependently determine policies. The problem, however, is that political culture is hardly as consensual as the concept of national model assumes and projects onto policy regimes. Political culture might more appropriately be understood as the dissensus that emerges around a number of core issues on the political agenda, as Dewey has shown. What people operating within the horizon of a political culture share is not a set of deep assumptions about, for instance, citizenship that can be explicated in the form of a model, but a set of highly ambivalent problems that they have a hard time resolving and don’t seem to go away (cf. Somers, 1995). A political culture need not imply consensus, nor does path-­dependency imply inertia. So while the language of national models is present in both the European cases and the settler societies such as the US ‘melting pot’, Canadian and Australian versions of ‘multiculturalism’, a more close-­up analysis of what notions of national models refer to reveals constant change in policy approaches and endemic dissensus about what those models amount to (for a discussion on the models in settlers societies, see Foner, 2012; Reitz, 2012; Van Krieken, 2012). What does seem relevant in comparing the European cases to the settler societies is the expectations that actors have of policies and the state. The politics of immigration and diversity in Europe has become ever more pessimistic. Discussions over models have thereby centred on the question whether the policy models really deliver results, namely integrate newcomers into the national fold. As already mentioned, these expectations have left their mark on the European research practice. In this pessimistic light, national models of integration come to be evaluated according to their performance of the task of national preservation, of defending national identities. Anxieties have arisen in numerous European polities over their supposed failure to integrate newcomers. Consequently, their models of integration are said to be in ‘crisis’. The settler societies, particularly Canada and the US, present us with a different tableau. While immigration and diversity are quite clearly hot issues, the problem is not primarily understood to be a failure of integration into a native majority (Alba and Foner, 2015). In these contexts, there seems to be somewhat more optimism about immigration and diversity, at least in most political and public discourse. As settler societies, immigration and diversity is part of what it means to be Amer­ican, Canadian or Australian. However, the election of Trump and the resulting changes in policies do show that pessimism about immigration is not limited to continental Europe anymore.

The implicit politics of modelling What notions of politics are implied in ‘national modelling’? First of all, that policies are exclusively bound to the nation, overlooking subnational policies (or assuming, erroneously, that all subnational policies are steered from the national level). Thus, the development of these national paradigms must be considered a consequence of nation-­state centredness of policy and academic discourses, rather than as accurate representations of the character of immigrant integration policies, in which local authorities, and institutions in the fields of education, care, and housing play a big role (Bowen et al., 2014, see also below). In fact, this often leads to what Favell (2005: 48) describes as ‘self-­justificatory discourse’. Researchers have shared in this ‘methodological nationalism’ instead of questioning the ‘national’ of ‘national models’. Second, this perspective of models of integration assumes that agency and collective interests are marginal dimensions of institutional arrangements (in the field of education or health, for 162

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example) and of public debates (Brubaker, 1992: 13–16; Bleich, 2003). Instead, normative and idealistic ‘frames’, ‘structures’, ‘idioms’ or ‘paradigms’ are seen as the primary and main driving force of policies and practices related to identity, citizenship, immigration, religious diversity and so on. Social actors, from politicians to veiled Muslim women, are portrayed as simply inheriting these ideas, using and adapting to them. In turn, a public speech on immigrants or a woman’s decision to wear the hijab are also brought down to a single cause, namely the power of French republicanism or British and Dutch multiculturalism to drive individual behaviours, social movements, institutional arrangements and policies. When it comes to explaining precisely how this causal relation works and where these models come from, however, the literature is unclear, without offering a detailed account of where these ideas take their power from, and the processes and mechanisms through which they shape social reality and are accepted and used by social actors in different contexts. Finally, models tend to oversimplify policies and overstress the alleged coherency and consistency of these policies. Policy practices tend to be far more resilient and diverse than most policy models would suggest. For instance, in Dutch as well as in French literature there have been many references to differences between how policies are formulated on the national level and how they are put into practice often on the local level; some even speak of the decoupling of national and local policies in this respect (Favell, 1998; De Zwart, 2007; Poppelaars and Scholten, 2008). In fact, even when policy makers claim to operate according to a specific policy model, their reasons for doing so may be pragmatic and flexible. For instance, the reason why some Dutch politicians in the 1980s framed immigrant integration in terms of the multicultural model may have much more to do with their fear of anti-­immigrant parties playing the race card than with their so-­called multicultural policy beliefs (Penninx, 1988; Scholten, 2009).

Models as discursive and institutional practices in contexts What can national integration models teach us then about the practices of those who speak about the French Republic, Dutch and British multiculturalism, or German ethno-­nationalism? It is not enough to show, as we have done, the problems with concepts such as national models of integration. The fact that these models are not institutionally consistent, normatively coherent, culturally unequivocal or historically stable does not mean that they are simply figments of the imagination of researchers who are engaged in ideological debates on the integration of immigrants. Models are not an illusion created by public or political debates. When trying to address issues such as the integration of migrants and citizenship in a context of diversity, we are confronted with a wide range of social actors (including scholars) who believe in the existence of these models and who use them to justify strategic choices and their own practices. For this reason, it is not enough to conclude that national models ‘do not exist’ because the reality that scholars observe is in fact saturated with modellized thoughts and modellizing practices. The subjects of our research (social actors) believe in the existence of a French model built on principles inherited from the French Revolution or in the (past) existence of a Dutch and a British multiculturalism. Models are discussed everywhere: in working-­class pubs, hospital hallways, at the desks of family allowance organizations, in police stations, in school staff rooms, in union or non-­governmental organization (NGO) meetings, in the reader commentary sections of newspaper websites, in European ministers of interior summits, to name just a few. It is therefore wrong to say that national models of integration should not be taken seriously because there are many people who take these models very seriously. The model concepts are used, imagined, 163

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negotiated, affirmed, contested and challenged by different types of people. It is critical to be aware of the diverse uses of models and the negotiations, discussions – and misunderstandings – in which they figure. This indicates a perspective that overcomes the limits of the notion of models in the way we discussed them. Instead of taking models as self-­sufficient explanatory frameworks, they can be looked at from a more sociological perspective as a set of practices that need to be studied in context. Research has shown, for example, that variations between accommodative versus assimilationist approaches to religious diversity in public institutions had to do more with practical issues faced by members of these institutions in their daily work than with grand narratives of citizenship philosophies that dominate the public and political debates in a country (Bowen et al., 2014; Bertossi, 2016). A ‘monist’ understanding of national model fails to account for such variations. To unveil the complexity involved in the public narratives about immigrant integration and national identity, it is more fruitful to opt for a pluralist, more empirical, and critical use of models, looking at how social actors, institutions and constraints deal with notions of secularism, tolerance, integration, or ‘home’. In that perspective, it seems highly relevant to combine cross-­national comparisons between national cultural configurations with cross-­institutional comparisons of how different organizations of the state or the market frame the issue of diversity. This emphasizes the pragmatic dimension of belonging in contemporary immigration societies as well as the complex logics at play in boundary-­making processes and exclusion/inclusion axes that cannot be reduced to one national doctrine or identity (Lamont, 2002; Wimmer, 2007; Duyvendak, 2011; Bertossi, 2016).

References Alba, R. and Foner, N. 2015. Strangers No More. Immigration and the challenges of integration in North America and Western Europe. Princeton and Oxford: Princeton University Press. Bauböck, R. 1994. Transnational Citizenship: Membership and Rights in International Migration. Aldershot: Edward Elgar. Bertossi, C. 2011. National Models of Integration in Europe: A Comparative and Critical Analysis. Amer­ ican Behavioral Scientist, 55(12) pp. 1561–1580. Bertossi, C. 2016. La citoyenneté à la francaise. Valeurs et réalités. Paris: CNRS Editions. Bleich, E. 2003. Race Politics in France and Britain: Ideas and Policymaking since the 1960s. Cambridge: Cambridge University Press. Bowen, J. 2007. A View from France on the Internal Complexity of National Models. Journal of Ethnic and Migration Studies, 33(6) pp. 1003–1016. Bowen, J., Bertossi, C., Duyvendak, J.W. and Krook, M.L. 2014 (eds). European States and their Muslim Citizens: The Impact of Institutions on Perceptions and Boundaries. Cambridge: Cambridge University Press. Brubaker, R. 1992. Citizenship and Nationhood in France and Germany. Cambridge: Harvard University Press. Duyvendak, J.W. 2011. The Politics of Home. Nostalgia and Belonging in Western Europe and the United States. Basingstoke: Palgrave Macmillan. Duyvendak, J.W. and Scholten, P. 2011. Beyond the Dutch ‘Multicultural Model’. The Coproduction of Integration Policy Frames in The Netherlands. Journal of International Migration and Integration, 12(3) pp. 331–348. Duyvendak, J.W. and Scholten, P. 2012. Deconstructing the Dutch Multicultural Model: A Frame Perspective on Dutch Immigrant Integration Policymaking. Comparative European Politics, 10(3) pp. 266–282. Duyvendak, J.W., van Reekum, R., El-­Hajjari, F. and Bertossi, C. 2013. Mysterious Multiculturalism. The Risks of Using Model-­based Indices for Making Meaningful Comparisons. Comparative European Politics, 11(5) pp. 599–620.

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Beyond national models Essed, P. and Nimako, K. 2006. Designs and (Co)Incidents: Cultures of Scholarship and Public Policy on Immigrants/Minorities in the Netherlands. International Journal of Comparative Sociology, 47(3–4) pp. 281–312. Favell, A. 1998. Philosophies of Integration: Immigration and the Idea of Citizenship in France and Britain. Basingstoke: Palgrave Macmillan. Favell, A. 2005. ‘Integration Nations: The Nation-­State and Research on Immigrants in Western Europe’, in Michael Bommes and Ewa Morawska (eds), International Migration Research: Constructions, Omissions, and the Promises of Interdisciplinarity. Aldershot: Ashgate, pp. 41–67. Feldblum M. 1999. Reconstructing Citizenship: The Politics of Nationality Reform and Immigration in Con­ temporary France, Albany: State University of New York Press. Finotelli, C. and Michalowski, I. 2012. The Heuristic Potential of National Models of Citizenship and Immigrant Integration Reviewed. Journal of Immigrant and Refugee Studies 10(3) pp. 231–240. Foner, N. 2012. Models of Integration in a Settler Society: Caveats and Complications in the US Case, Patterns of Prejudice, 46(5) pp. 486–499. Hall, P. 1993. Policy Paradigms, Social Learning and the State: The Case of Economic Policy Making in Britain. Comparative Politics, 25(3) pp. 275–296. Jennings, J. 2000. Citizenship, Republicanism and Multiculturalism in Contemporary France. British Journal of Political Science, 30(4) pp. 575–587. Joppke, C. 2007. Transformation of Immigrant Integration in Western Europe: Civic Integration and Antidiscrimination in the Netherlands, France, and Germany. World Politics, 59(2) pp. 243–273. Joppke, C. 2009. Limits of Integration Policy: Britain and her Muslims. Journal of Ethnic and Migration Studies, 25(3) pp. 453–472. Klausen, J. 2005. The Challenge of Islam: Politics and Religion in Western Europe. Oxford: Oxford University Press. Koopmans. R. 2007. ‘Good Intentions Sometimes Make Bad Policy: A Comparison of Dutch and German Integration Policies’, in Friedrich Ebert Stiftung (ed.), Migration, Multiculturalism, and Civil Society. Berlin: Friedrich Ebert Stiftung. Koopmans, R. and Statham, P. 2005. Multiculturalisme, citoyenneté et conflits culturels: le défi posé par les revendications des groupes musulmans en Grande-­Bretagne et aux Pays-­Bas. In Les minorités eth­ niques dans l’Union européenne, edited by Lionel Arnaud. Paris: La découverte. Koopmans, R., Statham, P. Guigni, M. and Passy, F. 2005. Contested Citizenship: Immigration and Cultural Diversity in Europe. Minneapolis: University of Minnesota Press. Lamont, M. 2002. The Dignity of Men. Morality and Boundaries of Race, and Immigration. Cambridge: Harvard University Press, and New York: Russell Sage Foundation Books. Lamont, M. and Thévenot, L. 2000 (eds). Rethinking Comparative Cultural Sociology. Repertoires of Evaluation in France and the United States. Cambridge: Cambridge university press. Noriel, G. 1988. Le creuset francais. Histoire de I’immigration au xix et xx siècles. Paris: Seuil. Penninx, R. 1988. Minderheidsvorming en emancipatie, Balans van kennisverwerving ten aanzien van immigranten en woonwagenbewoners. Alphen aan den Rijn: Samsom. Poppelaars, C. and Scholten, P. 2008. Two Worlds Apart. The divergence of national and local immigrant integration policies in the Netherlands. Administration & Society, 40(4). Reitz, J. 2012. The Distinctiveness of Canadian Immigration Experience. Patterns of Prejudice, 46(5) pp. 518–538. Rosanvallon, P. 1984. Le modèle politique francais. La société civile contre le jacobinisme de 1789 à nos jours. Paris: Seuil. Scholten, P. 2009. The Co-­Production of Immigrant Integration Policy and Research in the Netherlands: The Case of the Scientific Council for Government Policy. Science and Public Policy, 36(7) pp. 561–573. Skocpol, T. 1985. Cultural Idioms and Political Ideologies in the Revolutionary Reconstruction of State Power: A Rejoinder to Sewell. Journal of Modern History, 57(1) pp. 86–96. Sniderman, P. and Hagendoorn, L. 2007. When Ways of Life Collide. Multiculturalism and Its Discontents in the Netherlands. Princeton: Princeton University Press. Somers, M. 1995. Narrating and Naturalizing Civil Society and Citizenship Theory: The Place of Political Culture and the Public Sphere. Sociological Theory, 13 pp. 229–274. Soysal Y.N. 1994. Limits of Citizenship, Chicago: University of Chicago Press. Uitermark, J. 2012. Dynamics of Power in Dutch Integration Policies. From Accommodation to Confrontation. Amsterdam: AUP.

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14 The Civic Integration Turn Sara W. Goodman

Introduction The definition of state belonging has undergone major transformation. At the dawn of the twenty-­first century, several Western European states began to craft policies requiring immigrants to demonstrate host society knowledge, language proficiency and a commitment to national qua liberal-­democratic values. Categorized as ‘civic integration’, these policies promoted active and productive participation by immigrants in society and the labour market through acquiring a set of ‘citizen-­like’ skills. These include speaking the host country language, having knowledge about the country’s history, culture and rules, and understanding and ascribing to the values that underscore their new home. Civic integration policies advance these characteristics with new assessment tools such as integration tests, courses and contracts. Also new is the interjection of the state into the process of immigrant integration, exerting a heavy hand by making status acquisition conditional on completing tests, courses, etc. Finally, in addition to the newness of content, instruments and conditionality, civic requirements uniquely apply not only to naturalization but increasingly to non-­traditional membership statuses, including long-­term/permanent residence and entry. Given these new hurdles, civic integration is significant from the perspective of the immigrant because it can be a decisive barrier to obtaining status and inclusion. Civic integration is also significant from the perspective of the state as it formally facilitates and mandates integration. By highlighting shared rules of society and concepts of belonging, states are articulating (some for the very first time) concrete and, in principle, accessible definitions of what it means to ‘be British’ or ‘Dutch’ or ‘German’. Here, civic integration represents the latest iteration of the on-­ going project of nation-­building (or, what Stokes-­DuPass (2015) refers to as ‘manufacturing’). On the one hand, this change across most-­different systems signifies convergence, where divergent tropes of belonging – from German ethno-­differentialism to French civic republicanism to the multinational understanding of belonging in the UK – face re-­examination. This shared change is unidirectional in the sense of states going from zero or informal requirements of membership to robust integration schemes at multiple stages of status. On the other hand, we can question whether states are changing into the same thing and for the same reason. In fact, the question of whether civic integration policies signify an ‘end to national models’ (Joppke, 2007a) in subsuming national differences to produce a ‘lite’ form of citizenship (Joppke, 2010) or not 167

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(Goodman, 2012a, 2014) has emerged as one of the more central debates in the literature. In other words, are national definitions of belonging giving way to a convergent, post-­national, liberal-­democratic concept? To answer this question, this chapter undertakes several tasks. First, it begins by identifying and comparing civic integration policies across Europe. It distinguishes between new practices in Western Europe and older practices in Former Soviet Eastern states, as well as national versus sub-­national/regional practices. Upon identifying a cluster of robust civic integration adopters across the EU-­15, it considers extant explanations for this robust ‘civic turn’ (Mouritsen, 2008). It then examines convergence and replacement theses, drawing on the now-­vast civic integration literature. It concludes by considering the significance of mandatory integration in light of liberal parameters and points to fruitful avenues for new research.

Comparing civic integration policies across Europe The speed and scope of civic integration policy adoption in Europe is matched only by the number of studies seeking to describe and explain it. Early studies provide rich, within-­country detail, descriptively mapping policy patterns, content differences and variation across states and legal statuses (e.g. Guild et al., 2009; Koopmans et al., 2012, 2005; Migration Policy Group, 2011; Strik, Böcker, Luiten and van Oers, 2010). These studies build on political sociological observations presented by Christian Joppke across several works (2007a, 2007b, 2008, 2010). Interestingly, this research field developed entirely within the academic community in Europe, despite obvious parallels and early practices of civic integration and assessment in the United States (e.g. Wan, 2014), Canada (Bloemraad, 2006), Australia and elsewhere (FitzGerald and Cook-­Martin, 2014). For example, the US has administered a literacy exam for citizenship since the early 1900s, and has maintained its civic exam since the 1980s. There are also numerous practices of language testing and assessment in Former Soviet countries, like Lithuania. These assessments are similar in format but distinct in purpose from the ‘civic turn’. In the case of Former Soviet Union (FSU) states, for instance, tests were adopted in the immediate dissolution period to distinguish native and Russian residents and rebuild national language (Laitin, 1998; Priedīte, 2005). Thus, they remain generally excluded from large, cross-­national studies of cultural requirements for immigrants (Cf. Goodman, 2010b). There was a further lacuna to earlier studies. Despite the abundant empirical and case-­based research on identifying civic practices, there remained a need to translate this rich content into systematic scores, to enable categorization and comparison across legal statuses (citizenship, permanent residence and entry), time and cases. In Immigration and Membership Politics in Western Europe (Goodman, 2014), I develop the Civic Integration Policy Index (CIVIX) – the first index to use an empirical rubric for scoring the comparative size and empirical configuration of civic integration policy (for earlier iterations, see Goodman, 2010a, 2012b). To briefly present these findings, aggregate CIVIX scores in Figure 14.1 portray substantial change in civic integration policy between 1997 and 2014. The CIVIX scoring rules are as follows: obligatory civic requirements at entry, settlement and citizenship receive one point per criterion. Examples include and range from the ‘civic integration test from abroad’ in the Netherlands to civic orientation courses in Germany to the Austrian citizenship test. This represents a conservative approach as it is agnostic towards mechanism of assessment, whereby signing a contract is scored equally to obtaining certification or passing a test. Second, there are compounding factors, in which an additional half point is added if, for example, the migrant has to pay fees to participate in an integration course or if tests are assessed at a high language level (Common European Framework of Reference for Languages, CEFR). Finally, there is an 168

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Figure 14.1 Civic Integration Index (CIVIX) Note A score of zero means no cultural conditions are required.

ameliorating factor in terms of design that can make the chain of requirements less arduous. If a requirement completed for permanent residence ‘double counts’ for citizenship, a deduction of one is given for each requirement (for more, see Goodman, 2014). In sum, higher scores represent more rigorous civic integration policies. In this snapshot period, we observe significant difference between maximal practitioners (Denmark, Germany), midrange practitioners (UK, Austria), and non-­practitioners (Sweden). The primary objective of developing CIVIX was to categorize and identify empirical variation, to understand the descriptive landscape, to investigate trends and, subsequently, why civic requirements were adopted. Since 2014, there have only been a few significant changes to these practices. Some of these changes include the merging of German residence and citizenship examinations, the formalization of language and civics tests in Spain, and the adoption of national language requirements in Belgium. This last case is particularly significant in that it harmonized divergent regional practices, where Wallonia and Flanders meaningfully differ in approaches to immigrant integration. There have also been several more indexing projects (Goodman, 2015), including more cases and procedural elements (e.g. Blatter et al., 2016). For example, the EUDO-­Citizenship research group (2012) scores language and civic knowledge testing as part of their Citizenship Law (CITLAW) index project for over thirty countries. Figure 14.2 ­portrays 169

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Figure 14.2  CITLAW scores of Language and Civic Knowledge Assessment, 2016

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2016 scores for this expanded sample of countries. Scores for language (variable name: ANAT06c) range as follows: 0 (no requirement) to 1 (certification at a high language level, e.g. B2). Scores for civic knowledge and cultural assimilation (variable name: ANACT06d) range as follows: 0 (no naturalization test or cultural condition) to 1 (demanding formal naturalization test with limited study opportunities and no exemptions). In other words, the closer to zero the more difficult and highly-­formalized the civic and language practice. While this data is not longitudinal and it is only limited to citizenship (i.e. excluding residence and entry), it shows both convergent and divergent trends in civic and cultural practices across the European continent in 2016.1 This descriptive exercise in ‘going wide’ is useful for our inevitable narrowing to Western Europe to analyse the conditions and causes of cross-­national adoption in the late-­1990s/early-­ 2000s. This wide lens reveals a prevalent use of civic instruments, e.g. language evaluation and cultural requirement assessment; but, given (1) timing of adoption and (2) historically contingent motives for language requirements in FSU countries, it suggests that accounts of adoption in Western states are bound by different theoretical scope conditions, with a different population (namely, under-­skilled immigrants) in mind.

Explaining the civic turn: convergence, replacement, or national reinvention Turning to the EU-­15, we see a prolific adoption of civic integration policy. In 1998, the Netherlands introduced the Newcomers Integration Law (Wet Inburgering Nieuwkomers), obliging immigrants to take an integration course of language and civic content. Around the same time, France introduced a mandatory integration contract (Contrat d’acceuil et d’intégration), Britain a citizenship test, and integration courses and testing popped up in Germany, Austria and Denmark. Despite the similar time horizons of adoption, civic integration policies meaningfully differ in terms of criteria, cost, course difficulty and length, etc. For example, looking just at entry, the Dutch programme is far more stringent than the French design. In France, participants complete a one-­day evaluation and civic course upon arrival, organized and financed by the state. Immigrants are assessed in French but are not required to demonstrate certain proficiency for legal status. By contrast, the Dutch government has made it a condition of entry to pass a test in the country of origin on entry-­level speaking and reading comprehension of Dutch, as well as thirty questions on Dutch society. No preparatory courses are offered to pass this test, though a study guide is available for purchase. Once admitted to the Netherlands, immigrants are then expected to attend an integration course (inburgeringscursus). Perhaps the only common denominator between the French and Dutch design is the general content, i.e. shared emphasis on knowledge of national language and familiarity with rights, rules, history, and institutions. It is this shared attribute that has informed a substantial debate in the civic integration literature. This debate pivots around two assertions: that civic integration policies (1) represent a European convergence and (2) signal the replacement and ‘end of national models’. Regarding convergence, the literature presents two, oddly contradictory types of claims: denationalization and restrictive renationalization. In the former, citizenship moves from a series of entrenched, national practices to an instrumentalized, denationalized version of ‘citizenship lite’ (Joppke, 2010, 2012), in which the liberal norms and practices of citizenship become cross-­nationally similar and largely agnostic towards otherwise procedural national flavours (e.g. citizens speak the national language, whether that is Dutch or German is beside the point). In fact, it becomes so denationalized that ‘the spreading of such schemes’ becomes a ‘best-­practice diffusion within the ambit of all Western states, not limited to Europe’, suggesting the civic integration model could ‘well become the standard approach of Western states for 171

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dealing with immigrant diversity’ (Joppke, 2007c: 272–273). Related to this version of convergence is the replacement hypothesis, with Joppke maintaining his place as its most senior proponent. Through a series of contributions, he claims civic integration policies represent a “reorientation” framed ‘by a new, post-­national model philosophy of migrants’ “self-­sufficiency” and “autonomy” … according to which – paradoxically – the primary task of the state is to make migrants independent of the state’ (Joppke, 2007a: 4). And, as states are converging in this adoption, ‘the notion of national models no longer makes sense, if it ever did’ (Joppke, 2007a: 2). A second variant of the convergence argument would agree with the aforementioned scope of change, but not the direction. It posits that instead of a denationalized, ‘lite’ citizenship, we are witnessing a cross-­national move towards restriction and ethno-­nationalism (Guild et al., 2009; Kostakopoulou, 2010b; Triadafilopoulos, 2011; van Houdt, Suvarierol and Schinkel, 2011), where membership is becoming harder through more nationally-­specific criteria (e.g. a citizenship test is not just recalling trivia but learning nationally-­specific history, culture, and practices with consequence). Some maintain these restrictions are expressions of ‘illiberal liberalism’ insofar as a state mandate for individuals to be autonomous is inherently contradictory; Liav Orgad (2015) goes so far as to describe it as a type of liberal neo-­assimilationism in ‘cultural defense of nations’. Far from post-­national, this cross-­national trend is interpreted as renationalization through new restrictions, in which integration becomes a condition for immigration/ residence rights (Carrera, 2009; Kostakopoulou, 2010a, 2010b). Moving to evaluation, the empirical snapshots of policy change seem to lend support to the convergence perspective, where states went from little to no civic integration practices to widespread practice. And several scholars have observed a change from lenient, rights-­based approaches to more restrictive, performative ‘duty-­based’ concepts (Böcker and Strik, 2011; Perchinig, 2012). As such, a plausible read on this simultaneity is a process of emulation and diffusion of norms, in which ‘government policy decisions in a given country are systematically conditioned by prior policy choices made in other countries’ (Simmons et al., 2006: 787). Indeed, diffusion is quite evident for later iterations of policy adaptation and particularly in the field of family migration (Bonjour, 2014), where states benefit from the trial-­and-error of others’ experiences. Yet, what is missing in convergence arguments that rely on snapshots and timelines (as well as evidence that states cite each other in parliament debates and green papers) is that states can adopt similar policies – and that adoption can be made more likely by decisions of neighbouring states – but for different reasons. And not only has change proven to be contested and by no means inevitable, some states like Sweden have resisted change altogether (Borevi, 2014). In another study, similarities in content and target groups are not products of a consistent process of convergence but rather of local introduction initiatives, where frames and financial resources vary (Caponio et al., 2016). In sum, both motives and processes are significant and cannot be glossed over by focusing exclusively on outcomes. The content might be similar but the reasons for and mechanisms by which change occurs could vastly differ. In methodological parlance, this constitutes selection on the dependent variable and raises myriad concerns, including omitted variable bias and the potential of causal equifinality. This leads us to closely consider Joppke’s second interpretation of the ‘civic turn’, namely that new policies are not merely convergent but have replaced existing national approaches to conferring membership and promoting integration. There is much evidence to challenge this reading (Borevi, 2014; Goodman, 2012a, 2014; Jacobs and Rea, 2007; Meer et al., 2015; Mouritsen, 2011). One response to the replacement thesis suggests civic integration policies buttress instead of replace national practices, solving national problems through new, civic solutions (Goodman, 2012a). A related counter-­argument is that new policies are layered on top of existing 172

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ones. In this approach, civic programmes are not solutions for membership problems but co-­ exist in doing something different. This is what Keith Banting and Will Kymlicka conclude regarding civic integration and multiculturalism. In states that maintain multiculturalism, we see no evidence that civic integration has eroded multicultural policies (Banting and Kymlicka, 2013; Bloemraad and Wright, 2014). Multiculturalism offers rules and procedures that promote accommodation along group lines, ranging from home language instruction to funding for religious schools, while civic integration is individual-­oriented (so much so that spouses, formerly included on family visas, are independently required to demonstrate language and country knowledge). To fully investigate replacement, however, requires considering initial conditions and processes of civic integration policy adoption. What factors determine civic integration policy outcomes? One series of explanations for policy can be understood as institutional, ranging from electoral constraints to party ideology and issue ownership as defined by available party space. The most comprehensive account in this line of work is Goodman’s (2014) six-­country study of civic integration policies. Goodman identifies two significant conditions for determining why states adopt civic integration policy and what form that policy takes initially and over time. The first is policy context, specifically inherited citizenship policy. This policy – whether a state makes the acquisition of national membership inclusive or exclusive – is politically consequential for shaping how a political actor understands how political identity is already conferred and what the realm of possible or likely policy changes are. This institutional setting then provides a meaningful context for the second, more traditional explanation of membership policy change that focuses on preferences of the party in power, where right parties pursue restriction and left parties pursue liberalization (Howard, 2009; Joppke, 2005). This institutional frame is significant for interpreting both motive and process, as civic requirements in traditionally restrictive (exclusive) citizenship contexts necessarily address different problems – and produce different effects – than new civic requirements in traditionally liberal (inclusive) citizenship states. Of course, citizenship policy is not the only institution to structure the decision-­making process. As Goodman (2014) shows in a comparison of the Netherlands to France, the Dutch proportional representation system incentive zed coalition-­building and consensus which made policies more ‘sticky’ over time and thus, difficult to reverse at the whim of a change in government (as exhibited in France). Saskia Bonjour (2010) focuses in her work on judicial constraints (with regard to family migration). We have also see the European Union (EU) Court of Justice serve as an effective external check on national policy (e.g. reversing the requirement that Turkish immigrants to Netherlands take the Civic Integration from Abroad Exam as a violation of Turkey’s preferential trade arrangements with the EU). Within a variety of institutional contexts, we can identify any number of motives that political actors and parties use when pursuing civic integration policy. These are not uniform acrossor within-­cases and depending on what party is in power, by what means, and how powerful and mobilized the opposition is, etc., determines which motive is invoked to adopt cultural requirements. One explanation is symbolic gains: politicians pursue cultural and civic requirements to achieve any real, functional gains in immigrant integration but to address mass publics that are hostile to the real flow of more immigration (Goodman and Wright, 2015; Permoser, 2012). Symbolic gains are valuable; politicians often recognize they cannot achieve concrete migration control but they can enact symbolic ones that ameliorate public opposition. Symbolic gains also often translate into electoral gains. This accounts for the timing of several civic integration changes, as well as some of its primarily proponents. The ‘civic turn’ is often contextualized as part of the rise of anti-­immigrant, populist movements in Europe as far-­right parties, like the Danish People’s Party or the Dutch Freedom Party act as some of the more vocal advocates 173

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for stringent cultural requirements and with centre parties acquiescing to these political provocations to compete for voters in the run-­up to national elections. Another version of this explanation focuses on rhetorical cues. Here is where the multicultural debate is again relevant. Since the early 2000s, multiculturalism is consistently singled out as a chief cause and popular target of political ire.2 Ending multiculturalism is rhetorically popular, as is ‘solving’ its problems with mandatory civic integration (this is where civic integration gets read as neo-­assimilation). Yet, in practice, no multicultural policies have been replaced (Banting and Kymlicka, 2013; Bloemraad and Wright, 2014; Meer, Mouritsen, Faas and de Witte, 2015). A second motive moves from symbolic gains to concrete, economic ones. It is widely acknowledged that a core mission of civic integration policies is to build individual skills for accessing the labour market. Often this mission was explicit. The earliest drafting of the Dutch civic integration involved developing proposals designed to improve the skills of immigrants entering the labour market, including ‘to organize mandatory language and social skills training for new arrivals’ (Entzinger, 2003: 76). In a later example, Danish amendments to their Integration Act were billed to achieve ‘better labour-­market integration of immigrants’, which included improving skills, job training, etc. (Wiesbrock, 2009:303). Indeed, as we observe a larger shift in work-­based welfare conditionality within advanced welfare states, access to social benefits becomes conditional on participation in the labour market and civic integration (Baldi and Goodman, 2015). This conditionality is a component of what Lawrence Mead (1997) describes as the ‘new paternalism’, whereby the government intervenes to alter behaviour of welfare recipients in the name of better political integration. New paternalism maintains unconditional access to social programs create dependency (a perpetual underclass) and reduces the likelihood of integration because it does not promote work, i.e. common civic behaviour. Hence, the government engages in ‘supervisory approaches’ to promote work and political participation. The other side of this economic argument of improving labour market mobility – be it through skills promotion or benefit conditionality – is reducing state costs. This primarily includes structural dependency on income support, but also the price of providing mandatory integration. For example, in the Netherlands, the economic dimension of political party positions was most prominent in civic integration debates where parties sparred not over content or idea of civic integration but cost of financing and organizing courses (Bonjour, 2013). This plays out in a long, back-­and-forth in Dutch policy over who pays for integration (the individual, the state, the municipality) and degree of subsidization. In addition to economic motives for civic integration policies, there is the direct effect that promoting cultural requirements has as a filter for immigration. Considering specifically the introduction of mandatory civic and language requirements as a condition for temporary residency permits and entry, tests and language barriers can reduce immigration directly through low pass rates or indirectly by de-­incentivizing immigration in the first place. Either way, it can be used as a novel device of immigration control (Bonjour, 2010; Goodman, 2011), especially geared towards the reduction of third-­country nationals and family-­based migration (i.e. non-­skilled). Finally, it would be cynical to dismiss the possibility that civic integration policies are adopted to have a functional, direct and positive effect on an immigrant’s integration and life chances in their host country. It may be that civic integration produces dual outcomes: mandatory integration can make status acquisition more difficult while also improving language proficiency and, therefore, social and economic mobility. Assessing the impact of integration policies on socio-­ political and cultural integration has largely proceeded through the use of individual interviews and focus groups (Strik et al., 2010; van Oers, 2013), or based on small case studies (Ministry of Immigration, 2009) making it difficult to cross-­nationally evaluate the policy effects of mandatory integration. One can look at pass rates to convey whether it is an effective barrier to status 174

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acquisition (e.g. Goodman, 2014), but data limitations prohibit more systematic, cross-­national analysis of effects on behaviour. In one study, Jutta Hoehne and Ines Michalowski (2016) observe positive long-­term benefits of early language course participation. Elsewhere, Sara W. Goodman and Matthew Wright (2015: 18) ‘observe little evidence that immigrant integration is impacted by civic integration, either positively or negatively’. In other words, much more work can be done in this area. To summarize, these motives – political, symbolic, economic, functional – all ground the study of civic integration in the domestic political arena, looking the interaction of institutions and interests to identify why states adopt and adapt civic integration policy. It provides a framework of analysis that leaves open the door to the possibility that states adopt similar polices for different reasons, to address different problems, to pursue different objectives, and which, inevitably, achieve different outcomes. This is one of the central insights of Goodman’s (2014) work, which argues that states fortify national citizenship as a national member-­conferring institution (Goodman, 2012a), rather than abandoning it for some post-­national, liberal machination (Hansen, 2009). It also, of course, provides a structure for comparing state incentives, recognizing that parallel timing could also portend shared motivations.

Conclusion Civic integration policies show no signs of disappearing. If anything, they have only been strengthened and expanded in light of the 2015 Refugee Crisis. One of the unresolved issues related to these policies, however, is whether language and cultural requirements are liberal, though much has been said on this front (Bauböck and Joppke, 2010; Guild et al., 2009; Orgad, 2010; Triadafilopoulos, 2011). In my view, the content of civic requirements present less cause for concern than the conditions of assessment. Knowledge is a matter of trivia. As I have stated elsewhere, ‘knowing national values and believing in them are two different things.… The state can mandate knowledge and the professing of loyalty, but not morality or belief ’ (Goodman, 2014: 33). To wit, I find burqa bans more pernicious as an affront to liberalism in constraining religious freedom than any hoop of civic integration. If an individual seeks membership, benefits and rights of citizenship, the conferring state has the right to set reasonable terms of that contract (Tilly, 1997). So, where do researchers go from here? It seems the most pressing concern is obtaining better data for assessing effects of socialization, preparation, exposure and content of integration courses on individual behaviour, attitudes and performance – both immediately after-­the-fact and over time. This requires new data, and with it come the obvious constraints of gathering costly, cross-­national panel data, oversampling immigrants exposed to integration courses, or gaining access to a service provider to observe participants or facilitate focus groups and experimental designs. Another avenue is to expand on our understanding of state imputations of belonging and instrumental policymaking by looking beyond Western Europe, through more sustained comparisons to FSU countries or other practitioners, like Australia or the United States. Finally, interesting findings could emerge by drawing comparison between immigrant and refugee populations in terms of what is presented by the state as constituting necessary cultural orientation and relevant civic attributes, particularly in light of the 2015 Refugee Crisis.

Notes 1 According to CITLAW designers, ‘conditions must be treated non-­accumulatively. There is one single deduction per country based on the least restrictive provision or most generous exception’ (Jeffers et al. 2012: 30). As such, I do not aggregate these conditions into a single score but report them independently.

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Sara W. Goodman 2 In 2005, Trevor Phillips, then chair of the Commission for Racial Equality, intimated the practice of ‘politically correct’ multiculturalism had fostered fragmentation (‘parallel lives’), whereby Britain was ‘sleepwalking into segregation’. In Germany, Chancellor Angela Merkel labelling the multicultural project in 2010 as an ‘utter failure’ and—in the midst of the current refugee crisis—as a ‘grand delusion’. After the Paris terrorist attacks, former French President Nicolas Sarkozy decried ‘France is not a supermarket, it’s a whole.… There is no French identity, no happy identity in a multicultural society.’

References Baldi, G. and Goodman, S.W. 2015. Migrants into Members: Social Rights, Civic Requirements, and Citizenship in Western Europe. West European Politics, 38(6) pp. 1152–1173. Banting, K. and Kymlicka, W. 2013. Is There Really a Retreat from Multiculturalism Policies? New Evidence from the Multiculturalism Policy Index. Comparative European Politics, 11(5) pp. 577–598. Bauböck, R. and Joppke, C. 2010. How liberal are citizenship tests? 2010/41. Available at: http://eudocitizenship.eu/docs/RSCAS_2010_41.pdf [Accessed 13 February 2017]. Blatter, J., Schmid, S.D. and Blättler, A.C. 2016. Democratic Deficits in Europe: The Overlooked Exclusiveness of Nation-States and the Positive Role of the European Union. JCMS: Journal of Common Market Studies. Online First. Available at: http://onlinelibrary.wiley.com/doi/10.1111/jcms.12491/ abstract. Bloemraad, I. 2006. Becoming a citizen: incorporating immigrants and refugees in the United States and Canada. Berkeley: University of California Press. Bloemraad, I. and Wright, M. 2014. ‘Utter Failure’ or Unity out of Diversity? Debating and Evaluating Policies of Multiculturalism. International Migration Review, 48(s1) pp. S292–S334. Bonjour, S. 2010. Between Integration Provision and Selection Mechanism. Party Politics, Judicial Constrains, and the Making of French and Dutch Policies of Civic Integration Abroad. European Journal of Migration and Law, 12(3) pp. 299–318. Bonjour, S.A. 2013. Governing Diversity. Dutch Political Parties’ Preferences on the Role of the State in Civic Integration Policies. Citizenship Studies, 17(6/7) pp. 837–851. Bonjour, S. 2014. The Transfer of Pre-­departure Integration Requirements for Family Migrants among Member States of the European Union. Comparative Migration Studies, 2(2) pp. 203–226. Borevi, K. 2014. Multiculturalism and Welfare State Integration: Swedish Model Path Dependency. Identities, 21(6) pp. 708–723. Böcker, A. and Strik, T. 2011. Language and Knowledge Tests for Permanent Residence Rights: Help or Hindrance for Integration? European Journal of Migration and Law, 13(2) pp. 157–184. Caponio, T., Jubany Baucells, O. and Güell, B. 2016. Civic Integration Policies from Below: Accounting for Processes of Convergence and Divergence in Four European Cities. Ethnic and Racial Studies, 39(5) pp. 878–895. Carrera, S. 2009. In search of the perfect citizen? The intersection between integration, immigration and nationality in the EU. Leiden; Boston: Martinus Nijhoff. Entzinger, H. 2003. The rise and fall of multiculturalism: The case of the Netherlands. In: Joppke, C. and Morawska, E.T. (eds). Toward assimilation and citizenship: Immigrants in liberal nation-­states. Basingstoke, Hampshire; New York: Palgrave Macmillan. FitzGerald, D.S. and Cook-­Martin, D. 2014. Culling the masses. Cambridge, MA: Harvard University Press. Goodman, S.W. 2010a. Integration Requirements for Integration’s Sake? Identifying, Categorising and Comparing Civic Integration Policies. Journal of Ethnic and Migration Studies, 36(5) pp. 753–772. Goodman, S.W. 2010b. Naturalisation Policies in Europe: Exploring Patterns of Inclusion and Exclusion. Available at: http://eudo-citizenship.eu/docs/7-Naturalisation%20Policies%20in%20Europe.pdf [Accessed 13 February 2017]. Goodman, S.W. 2011. Controlling Immigration through Language and Country Knowledge Requirements. West European Politics, 34(2) pp. 235–255. Goodman, S.W. 2012a. Fortifying Citizenship: Policy Strategies for Civic Integration in Western Europe. World Politics, 64(4) pp. 659–698. Goodman, S.W. 2012b. Measurement and Interpretation Issues in Civic Integration Studies: A Rejoinder. Journal of Ethnic and Migration Studies, 38(1) pp. 173–186. Goodman, S.W. 2014. Immigration and membership politics in Western European. New York: Cambridge University Press.

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The civic integration turn Goodman, S.W. 2015. Conceptualizing and Measuring Citizenship and Integration Policy Past Lessons and New Approaches. Comparative Political Studies, 38(14) pp. 1905–1941. Goodman, S.W. and Wright, M. 2015. Does Mandatory Integration Matter? Effects of Civic Requirements on Immigrant Socioeconomic and Political Outcomes. Journal of Ethnic and Migration Studies, 41(12) pp. 1885–1908. Guild, E., Groenendijk, K. and Carrera, S. 2009. Illiberal liberal states: Immigration, citizenship, and integration in the EU. Farnham: Ashgate. Hansen, R. 2009. The Poverty of Postnationalism: Citizenship, Immigration, and the New Europe. Theory and Society, 38(1) pp. 1–24. Hoehne, J. and Michalowski, I. 2016. Long-­Term Effects of Language Course Timing on Language Acquisition and Social Contacts: Turkish and Moroccan Immigrants in Western Europe. International Migration Review, 50(1) pp. 133–162. Howard, M.M. 2009. The politics of citizenship in Europe. Cambridge: Cambridge University Press. Jacobs, D. and Rea, A. 2007. The End of National Models? Integration Courses and Citizenship Trajectories in Europe. International Journal on Multicultural Societies, 9(2) pp. 264–283. Jeffers, K., Honohan, I. and Bauböck, R. 2012. CITLAW indicators: How to measure the purposes of citizenship laws. Available at: http://eudo-citizenship.eu/indicators/eudo-citizenship-law-indicators [Accessed 13 February 2017]. Joppke, C. 2005. Selecting by origin: Ethnic migration in the liberal state. Cambridge, MA: Harvard University Press. Joppke, C. 2007a. Beyond National Models: Civic Integration Policies for Immigrants in Western Europe. West European Politics, 30(1) pp. 1–22. Joppke, C. 2007b. Immigrants and civic integration in Western Europe. In: Banting, K.G., Courchene, T.J. and Seidle, F.L. (eds). Belonging? Diversity, Recognition and Shared Citizenship in Canada. Montreal: Institute for Research on Public Policy. Joppke, C. 2007c. Transformation of Immigrant Integration: Civic Integration and Antidiscrimination in the Netherlands, France, and Germany. World Politics, 59(2) pp. 243–273. Joppke, C. 2008. Comparative Citizenship: A Restrictive Turn in Europe? Law and Ethics of Human Rights, 2(1) pp. 1–41. Joppke, C. 2010. Citizenship and immigration. Cambridge; Malden, MA: Polity. Joppke, C. 2012. ‘Rejoinder’, Review Symposium of Christian Joppke’s Citizenship and Immigration. Ethnicities, 12(6) pp. 859–863. Koopmans, R., Michalowski, I. and Waibel, S. 2012. Citizenship Rights for Immigrants: National Political Processes and Cross-­National Convergence in Western Europe, 1980–2008. Amer­ican Journal of Sociology, 117(4) pp. 1202–1245. Koopmans, R., Statham, P., Giugni, M. and Passy, F. 2005. Contested citizenship. Immigration and cultural diversity in Europe. Minneapolis, MN: University of Minnesota Press. Kostakopoulou, D. 2010a. Matters of Control: Integration Tests, Naturalisation Reform and Probationary Citizenship in the United Kingdom. Journal of Ethnic and Migration Studies, 36(5) pp. 829–846. Kostakopoulou, D. 2010b. The Anatomy of Civic Integration. Modern Law Review, 73(6) pp. 933–958. Laitin, D.D. 1998. Identity in formation: The Russian-­speaking populations in the near abroad. Cambridge: Cambridge University Press. Mead, L.M. 1997. The new paternalism: Supervisory approaches to poverty. Washington, DC: Brookings Institute. Meer, N., Mouritsen, P., Faas, D. and de Witte, N. 2015. Examining ‘Postmulticultural’ and Civic Turns in the Netherlands, Britain, Germany, and Denmark. Amer­ican Behavioral Scientist, 59(6) pp. 702–726. Migration Policy Group. 2011. The Migrant Integration Policy Index (MIPEX). [online] Available at: http:// mipex.eu/ [Accessed 13 February 2017]. Ministry of Immigration. 2009. Effectiveness measurement of Danish municipalities integration policies from 1999 to 2007. Available at: https://ec.europa.eu/migrant-integration/librarydoc/effectiveness-measurementof-danish-municipalities-integration-policies-from-1999-to-2007 [Accessed 13 February 2017]. Mouritsen, P. 2008. Political responses to cultural conflict: Reflections on the ambiguities of the civic turn. In: Mouritsen, P. and Jørgensen, K.E. (eds). Constituting communities. Political solutions to cultural conflict. London: Palgrave. Mouritsen, P. 2011. Beyond post-­national citizenship: Access, consequence, conditionality. In: Triandafyllidou, A., Modood, T. and Meer, N. (eds). European multiculturalisms. Edinburgh: Edinburgh University Press.

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Sara W. Goodman Orgad, L. 2010. Illiberal Liberalism: Cultural Restrictions on Migration and Access to Citizenship in Europe. Amer­ican Journal of Comparative Law, 58(1) pp. 53–106. Orgad, L. 2015. The cultural defense of nations: A liberal theory of majority rights. Oxford: Oxford University Press. Perchinig, B. 2012. The national policy frames for the integration of newcomers: Comparative report. Prosint comparative reports wp2. Available at: http://research.icmpd.org/projects/integration-nondiscrimination/prosint/ [Accessed 13 February 2017]. Permoser, J.M. 2012. Civic Integration as Symbolic Politics: Insights from Austria. European Journal of Migration and Law, 14(2) pp. 173–198. Priedīte, A. 2005. Surveying Language Attitudes and Practices in Latvia. Journal of Multilingual and Multicultural Development, 26(5) pp. 409–424. Simmons, B.A., Dobbin, F. and Garrett, G. 2006. Introduction: The International Diffusion of Liberalism. International Organization, 60(4) pp. 781–810. Stokes-­DuPass, N. 2015. Integration and new limits on citizenship rights: Denmark and beyond. Basingstoke, Hampshire; New York: Palgrave Macmillan. Strik, T., Böcker, A., Luiten, M. and van Oers, R. 2010. The INTEC Project: Synthesis Report. Available at: www.ru.nl/law/cmr/research/projects/intec/ [Accessed 13 February 2017]. Tilly, C. 1997. A Primer on Citizenship. Theory and Society, 26(4) pp. 599–602. Triadafilopoulos, P. 2011. Illiberal Means to Liberal Ends? Understanding Recent Immigrant Integration Policies in Europe. Journal of Ethnic and Migration Studies, 37(6) pp. 861–880. van Houdt, F., Suvarierol, S. and Schinkel, W. 2011. Neoliberal Communitarian Citizenship: Current Trends towards ‘Earned Citizenship’ in the United Kingdom, France and the Netherlands. International Sociology, 26(3) pp. 408–432. van Oers, R. 2013. Deserving citizenship: Citizenship tests in Germany, the Netherlands and the United Kingdom. Amsterdam: Martinus Nijhoff. Wan, A.J. 2014. Producing good citizens: Literacy training in anxious times. Pittsburgh, PA: University of Pittsburgh Press. Wiesbrock, A. 2009. Discrimination instead of integration? Integration requirements for immigrants in Denmark and Germany. In: Guild, E., Groenendijk, K. and Carrera, S. (eds). Illiberal liberal states: Immigration, citizenship and integration in the EU. Farnham, Surrey; Burlington, VT: Ashgate.

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15 Family Migration and Membership Anne-­Marie D’Aoust

Introduction Asylum-­seeking families leaving war-­torn Syria risking their lives on precarious rafts to reach the shores of Europe, skilled migrants sponsoring their spouses after a few months of work in a high­tech company, first generation migrants sponsoring grandparents left abroad to ensure daycare to their children, and European citizens applying for a fiancé visa to sponsor a man or a woman they fell in love with while away on vacation: family migration to Europe has many faces, and encompasses different stories of love, care, hope and resilience. The very notion of ‘family migration’ is not a neutral category: it first and foremost points to a bureaucratic categorization implicitly opposed to ‘labor migration’. Naturally, this division does violence to the complexity of migrants’ lived experiences: why could you not be a wife, a parent and a worker (Piper and Roces 2003)? The category of family migration becomes even more politically charged when one is confronted with the question of who counts as family, and who can be recognized as such for immigration purposes. Can unofficially adopted children of a Muslim couple or a same-­sex partner of three years count as family member? How about grandparents, or even aunts and uncles? These questions highlight that who becomes part of a family unit, and which network of people can be considered as such, is closely tied to state power. For immigration purposes, who you are according to a state’s definition of a family member matters more than blood relations, official marriage ceremonies, registered civil unions or caregiving relations. People are granted or denied entry based on a complex web of state recognitions. Grandparents can be considered eligible (e.g. Spain) or non-­eligible (e.g. Italy, Austria) for family reunification in Europe, depending on the country of application. In Canada, failure to declare the existence a biological child living abroad (whether the child accompanies the applicant or not) when first applying for a visa means that the child will not be considered as a family member. He or she will thus be non-­eligible for family reunification later, independently of proven biological relationships. Variations about who should be included in the category of family migration also represent a challenge for researchers who aim to study family migration in Europe in a comparative fashion, as each country accounts for family migrants differently (Chaloff 2013). The Netherlands, for instance, distinguishes between family formation and family reunification when 179

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processing visa applications, whereas other European countries like France or Germany do not. Similarly, the accompanying family members of a successful refugee applicant or the accompanying spouses of workers can either be counted as part of family migration, humanitarian migration or labour migration statistics, depending on the countries surveyed, and the categories used. Given such fluctuation from one country to another, this contribution does not and cannot do justice to the complexity of all instances of family migration policy in Europe. Such a colossal task would require familiarity with the legal intricacies of each receiving country, and the legal framework of the European Union (EU) affecting them (for an overview, see Kraler 2010 and De Bruycker 2013; Groenendijk 2006). Instead, I propose to undertake an assessment of key issues and approaches used in interdisciplinary studies of family migration policy. To do so, I first discuss the recent literature surge on family reunification policy in Europe, before addressing how the nuclear family constitutes the implicit norm regulating family migration. I then move on to address the tension between the normative principle of a human right to family life, and the concrete applications of this principle, which lead to a stratification of family migration rights. From there, the third section explores how the politics of belonging pertaining to family migration in Europe hinge on formal legal status as much as on socioeconomic status and on racialized conceptions of (national) identity. Finally, I conclude by examining more specifically how, of all possible forms of family migrations, marriage migration (especially forced marriages and marriages of convenience) has been singled out as a ‘problem’ that needs to be addressed in several European countries.

Family migration in Europe: a burgeoning field The explosion of the literature on family migration in Europe in the past fifteen years is noteworthy. Eleonore Kofman’s 2004 review of family migration and European studies offers no equivocation on the paucity of scholarly engagements at the time: ‘Despite being the dominants mode of legal entry for the past two decades in European Union states, the study of family migration has been marginalized theoretically, methodologically and empirically’ (Kofman 2004: 243). An intriguing aspect of this literature surge is its convergence around the geographical spaces of Scandinavia and Western Europe (see Ambrosini, Bonizzoni and Triandafylidou 2014 on Southern Europe). This focus can notably be explained by the fact that policies pertaining to marriage migration have been the harshest in some of these countries, such as Denmark, the Netherlands and the United Kingdom, thus leading to increased critical academic scrutiny. In contrast to proactive political scrutiny of family migration in Western and Northern Europe, the authors note that migration controls in Southern Europe have been characterized by ‘a reactive (rather than proactive) approach’ and that ‘family reunification and family formation migration stand out as the smooth, regulated, legal, and accepted immigration flow’ (Ambrosini, Bonizzoni and Triandafylidou 2014: 368). From an academic perspective, this increased attention on family migration in general can be explained by ‘a heightened sensitivity towards gender and generational issues, or the progressive spread of a transnational approach in analysing migration dynamics’ (ibid.). From a policy perspective, one can pinpoint Europeanization processes that created some harmonization between national policies and norms aimed at tackling family reunification (Wray, Agoston and Hutton 2014). This harmonization process has created various outcomes, such as more restrictive policies in some countries, and less restrictive ones in others. A key study by Block and Bonjour (2013) on the Europeanization of family reunification notably suggests that states intrumentalized Europeanization (state-­led Europeanization) to align it with a more conservative agenda, hence indirectly contributing ‘to a race to the bottom among Member States’ (ibid.: 223). Still, 180

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an increase in standardization practices or Europeanization processes should not hide important divergences in policies regulating partner and family migration between Eastern and Western Europe or Northern and Southern Europe (for more on this, see Kraler 2010). The literature on family migration in Europe seems especially thriving from a North Amer­ ican perspective. Analysis explicitly focused on family migration policies in Canada and the United States is limited compared to labour migration (but see Liew, Balasundaram and Stone 2016; Neborak 2013; VanderPlaat 2006).

Family reunification and stratified regimes of rights Family migration draws attention to the moral and political ordering of the state, but also to marriage and the family as no less political institutions than the state itself. According to Ralph Grillo, the hegemonic conception of what family consists of in a national community has two important consequences for migrants seeking family reunification. First, an ideal (deemed to be European) model of the nuclear family might be promoted by policymakers ‘to judge qualification for entry … even though such a model fails to acknowledge alternative constructions of family relations’ (2008: 16). Second, using the nuclear family as the backbone of family migration policies sets a double standard: European family structures have become more complex and acknowledged in their diversity, whereas migrants are held to a constraining standard of what a ‘real’ marriage or a ‘real family’ should look like (ibid.: 17). As the nuclear family has become a marker of rights for family migrants in Europe (Mustasaari 2015), analyses have been attuned to implicit norms promoted through family reunification policies that partake in the politics of membership. In a concise presentation of the various legal frameworks shaping family reunification in Europe, Schweitzer reminds us ‘that no international agreement or court ruling establishes reunification as an absolute right [Lahav 1997], or specifically recognizes an automatic obligation for states to respect a migrant family’s choice of country of residence under Art. 8 ECHR [European Court of Human Rights]’ (2015: 2134). We must thus juggle with the ambiguity resulting from the discrepancy existing between the normative principle of a human right to family life, and the concrete applications of this principle in all their national variations. There is no right to family reunification: there is a right to family life, which must be balanced against the right of the state to regulate immigration. For instance, an application for family reunification in Great Britain between a British citizen and his or her Brazilian partner might be denied, with the claim that this denial of family reunification still does not prevent the couple from having a family life – albeit in Brazil. Furthermore, in the European context, EU law entails that European Economic Area (EEA) citizens who have exercised their right to free movement to any EU country benefit from the right to family reunification independently of national regulations, even with their non-­EU and non-­EEA spouses. By contrast, citizens found in ‘purely internal situations’, i.e. who have not moved to another EU country, cannot rely on free movement rights and their afferent right to family to reunite with their spouses and partners. Rather, they must abide by strict national regulations that weigh their rights to family life against state interests. The result has been what several commentators have labelled a situation of reverse discrimination (Berneri 2014), wherein citizens wishing to be reunited with a family member from outside the EU face many more hurdles than a EU citizen who has exercised her right to free movement in the same citizen’s country, and who also wishes to be reunited with a non-­EU spouse. When it comes to family reunification in Europe, Staver (2013) argues that four regimes of rights run parallel and must be acknowledged: ‘a national rule for citizens who do not move, 181

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EU rules for citizens who move within Europe, the Family Reunification Directive for third-­ country nationals in the EU, and since 2011, family reunification rights based on EU citizenship status’ (Staver 2013: 69). Inside each of these legal regimes, elements affecting the recognition of who is a partner or not and who can be granted which rights include (but are not limited to) the relationship’s status (cohabitees, long-­term partners, registered partners, fiancés, spouses, etc.), sexual orientations (heterosexual, homosexual, bisexual, queer, etc.) the enactment of free movements rights (or not) as EU citizens, and formal status as citizens, residents or third-­country nationals. If we add to these criteria other markers of belonging such as religion, ethnic background, family ties between the family reunification applicants (such as second degree cousins), education degree or socioeconomic status, we quickly see why theories of citizenship and civic stratification have become privileged theoretical framework of analysis to understand family migration in Europe (see the extensive literature review done by Bonjour and Block 2016; Bonjour and Kraler 2015; Kraler 2010; Schweitzer 2015). As the booming literature on family migration in Europe shows, this stratification results from an increase towards more selective (rather than simply restrictive) policies that create an ‘heterogeneity of non-­citizen statuses’ (Schweitzer 2015: 2133) rather than denizens.

Beyond citizenry: family migration, citizenship and belonging Ultimately, when it comes to the right to family reunification, ‘[t]he more the person requesting family reunification is considered an insider, a ‘member’ who belongs to the nation, the stronger his or her claim to be entitled to live his or her family life on national territory’ (Bonjour and Kraler 2015: 1412–1413). Different theoretical takes on belonging and citizenship have been proposed to account for and critically assess the power to define and enforce inclusion, rights, responsibilities and protection that citizens and non-­citizens alike can benefit from. Governmentality frameworks (D’Aoust 2014; Turner 2015), as well as securitization theory (D’Aoust 2013; Innes and Steele 2015) have been deployed to that end. However, theoretical frameworks focused on street-­levels bureaucrats (Infantino 2014; Lavanchy 2013) and bureaucratic theories (Eggebø 2013a; Lavanchy 2015; Pellander 2016), as well as citizenship theories have by far dominated theoretical reflections. Critical reviews of citizenship theories have been proposed (Bonjour and Block 2016), and new analytical takes that can better account for the stratification of rights resulting from family reunification policies have been applied, such as sexual citizenship (Luibhéid 2002, 2008) or civic stratification (Kraler 2010; Schweitzer 2015). Horsti and Pellander (2015), for instance, enjoin us to consider ‘intimate citizenship’ and ‘cultural citizenship’ to direct ‘attention to the cultural conditions within which some families and family members become visible and heard, while in the case of others, these rights of belonging are denied’ (Horsti and Pellander 2015: 752–753). Various accounts have documented the fact that contemporary family reunification in Europe not only depends on the strength of membership (formal legal status), but also on its normative ‘quality’ (often associated with socioeconomic status) (Block 2015: 1441–1442). Policy analyses, national case studies and ethnographic accounts explored in different national settings how inclusion and belonging were defined and enacted through policies, media coverage, and discourses targeted at family migration (see e.g. Bonjour and De Hart 2013 on the Netherlands; Block 2012 on Germany; Wray 2011 on the United Kingdom; Horsti and Pellander 2015 on Finland; Eggebø 2013b on Norway; Jorgensen 2012 on Denmark; Becker, Crosgrave and Labor 2013 on Ireland; Oliveira, Cancela and Fonseca 2013 on Portugal). These studies have notably emphasized the racialized components of an ‘us versus them’ imaginary, and revealed the implicit conception of whiteness in the idea of Europe. Specific 182

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policies appeared to have been designed to single out specific communities, for instance Pakistanis in the United Kingdom (Charsley and Benson 2012), Turks in Germany (Aybek, Straßburger and Yüksel-Kaptanoğlu 2015) or Pakistanis in Denmark and Sweden (Rytter 2012; Liversage 2009), hence marginalizing them. Authors point to the identification of ‘the Muslim other’ as the emblematic figure whose family life is problematized and whose integration is being doubted and questioned (see e.g. Aybek 2012; Bonjour and Block 2016). Charsley and Wray also urge us to embrace an intersectional take on men’s and women’s experiences of family migration and membership. Here, membership is understood as the result of a dynamic interplay of gender, race and class, the variations of which need to be accounted for (Charsley and Wray 2015: 416). Doings so allows us to see migrant men, for instance, as fathers, rather than perennial labour migrants (de Hart 2015a and Griffiths 2015). Policies such as the establishment of a minimum income requirement for non-­European spouses or proof of a certain accommodation size (number of bedrooms or square metres) to allow for family reunification reveal that family reunification policies in Europe encourage a neoliberal citizenship, with self-­reliance at its core value, that can trump issues of race and gender at times (Staver 2014). For instance, the 2012 increase in the minimum income requirement in the United Kingdom also led to public outrage when publicity was made around (white middle class) British citizens who could not sponsor their spouses. This classist element, while acknowledged in the literature, could benefit from more empirical and theoretical unpacking to explore civic stratification inside the EU itself. Considering family migration in relation to issues of belonging helps us understand how it came to be viewed as a political issue or ‘problem’. Several authors have noted that the ‘problem’ of marriage migration in Europe is not necessarily new, and can be traced to the early establishment of current regimes of controlled mobility in Europe in the late nineteenth century. It only became presented as a European problem after the Second World War, as bureaucratic distinctions between family and labour migrants formalized, when labour migrants wishing to be reunited with their family became an issue in a reconstructing Europe. There is a consensus that at least from the early sixties on, concerns about the mobility of non-­white migrants wishing to move from former colonies to metropoles became the most pressing issue justifying restrictive measures and increased scrutiny of spouses (see Turner 2015; Wray 2011 on the UK; de Hart 2015b on the Netherlands). Kraler and Kofman identify three key areas that have monopolized public debates on marriage migration in Northern Europe and framed it as a problem:  (1) the unsolicited nature of family migration, its alleged abuse as a migration channel and associated debates on ‘bogus marriages’; (2) the migrant family as a potential obstacle to integration …; (3) the migrant family as a patriarchal institution, which is seen as a contradiction to liberal democratic norms of gender equality. (2009: 4) What these measures consisted of, how they were justified and which racialized ‘Others’ were targeted has been the focus of studies in different national settings. For instance, Denmark developed the notion of an ‘attachment requirement’ for family reunification. Through a complex point system, applicants need to show that their attachment to Denmark is greater than to any other countries. Denmark, Austria, the UK, France and the Netherlands developed entry tests for family migrants designed to test their ability to integrate (Bonjour 2014). Germany implemented a language requirement: incoming family members must show proficiency in German (level B2 of the European Common Language framework) prior to moving to Germany. Citizenship tests and language requirements as specific policy tools used to control and prevent 183

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family reunification have been studied and questioned (Blackridge 2016). These policies were notably criticized for the ways in which they represented a burden for family reunification under pretences of improving ‘integration’. Grandparents for instance, could not necessarily easily develop high proficiency in a foreign language, and members of Muslim communities could negatively be targeted in integration contracts through explicit references to burqa and polygamy (Alaoui 2012).

The ‘problem’ of marriage migration: forced marriages and marriages of convenience Most of the literature focused on family migration policies in Europe has focused on heterosexual marriage migration. The latter expression tends to be used loosely to refer to a family reunification process where the spouse or partner of a migrant ‘is a national or long-­term resident’ of a European country and ‘where the relationship is the basis of the entry rights’ (Wray 2011: 1). However, recent scholarship has pointed out that the term should be replaced with the more accurate one of ‘partner migration’, which encompasses a broader range of relationships without privileging marriage and heterocentrism (Ahlsted 2016: 52–60). Still, one sees great variation between European countries. For example, countries such as Italy, Romania, Bulgaria or Germany do not allow same-­sex marriages, even though some recognize common law spouses (see Waaldijk 2015 for a review of diversity in non-­marital legal family forms). But even if some countries (e.g. Italy) do not recognize same-­sex marriage inside its borders, approval of family reunification applications filed by same-­sex partners of EU citizens is possible if the couple is legally married in a country that recognizes same-­sex marriages. Several authors have noted how various policies targeted at marriage migration instrumentalized gender norms to justify specific policies (Bonjour and De Hart 2013), creating tension and dissent among feminist communities. The issue of forced marriages, for instance, created a political coalition between liberal forces pushing for human rights and gender equality, and the proponents of a conservative agenda seeking to restrict family migrations in the name of ‘proper integration’. To be sure, forced marriages is a real issue affecting certain communities (Chantler, Gangoli and Hester 2009; Wilson 2007). In the name of protecting vulnerable women and girls, states like Denmark and the United Kingdom have implemented policies that officially aim to fight the issue, yet end up participating in tightened immigration controls over specific communities and marginalizing them (Charlsey and Benson 2012; Rytter 2010). Proposals to raise the minimum age to marry for migration purposes to 21 years were endorsed by the British government in 2005 and applied in 2008, with the stated purpose of preventing forced marriages (Wray 2011: 161). Myrdhal (2010) also documents how Danish immigration officials treat all marriages between cousins as being forced marriages, despite the fact that they are legal among Danish citizens. Arranged marriages involving people from Indian, Turkish or Pakistani descent are often treated as suspicious, and authors have also discussed how the political attention given to forced marriages contributed in stigmatizing other marriages practices, such as arranged marriages. In Nordic countries, such as Finland and Sweden, ‘respect for gender norms and gender equality’ has been identified as key to the countries’ national identity (Schmidt 2011) and instrumentalized to regulate marriage migration. Romantic love has also been extensively studied as a key implicit norm of immigration control forming the cultural backdrop against which immigration officers assess spousal applications for family reunification (e.g. Bonjour and De Hart 2013; D’Aoust 2014; Eggebø 2013b; Fair 2010; Lavanchy 2013; Myrdhal 2010). This results in what authors have labelled ‘moral gatekeeping’ (Ahlsted 2015; Pellander 2016; Wray 2006). But 184

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couples are not passive in the face of bureaucratic intimate enquiries: some adjust and purposefully display specific emotions or carry out specific actions to meet perceived expectations of what a ‘real’ relationship looks like (Carver 2014). Along with forced marriages, marriages of convenience (marriages entered into to circumvent immigration regulations) also became the most important family migration concern that European countries sought to address since the early 2000s. The phenomenon, as well as its social and political undertones and technical legal definitions, bears several names: grey marriages and bezness in France, Scheinehe in Germany and Austria, sham marriages in the United Kingdom, to name but a few. There are stark differences among European countries regarding how much of a threat or problem the issue was perceived to be, with Eastern European countries not really considering it a threat, and countries like France and the United Kingdom labelling it a serious issue (EMN 2012). Several perspectives on marriages of convenience and marriage migration have been offered, ranging from historical analysis (Messinger 2012; Wray 2011), to analysing the role of key non-­ governmental organizations (NGOs) involved in either the rights of mixed and transnational couples or in defending the rights of the victims of sham marriages (Odasso 2017). Policy analysis highlighted the intended and unintended consequences of policy aimed at targeting sham marriages in various European countries (Charsley et al. 2011). Fernandez and Jensen (2014), for instance, show how Danish regulations unexpectedly ended up affecting the Latino and Cuban communities, when the law was created with Muslim communities in mind. On the topic of marriages of convenience, one finds a clear dominance of ethnographic, and participants’ observation accounts of street-­levels bureaucrats in consulates and visa offices (Alpes and Spire 2014; Infantino 2014). These studies provide nuanced accounts of the motivations behind decisions made by the officers, such as a sense of duty towards protecting one’s country, compassion for the couples or even a sense of solidarity with a perceived victim of fraud, etc. (Lavanchy 2013). While access to bureaucracy is not necessarily easy to obtain, this appears to be a peculiarity of the European literature. For instance, because of the rare access granted to researchers by the Canadian government, Vic Satzewich’s study of Canadian overseas visa posts (2015), which notably covers family reunification, gained much attention for the privileged access to the bureaucracy it offered. It is worth noting that in some European countries, the issue of false paternity has been politicized and raised as a problem resulting from family migration. This issue has been far less documented than marriages of convenience (but see EMN 2012). However, some studies have examined the political, ethical and legal ramification of establishing what constitutes ‘true paternity’ for family reunification purposes through DNA testing (Heinemann and Lemke 2013; Weiss 2011).

Conclusion The fact that academic reflections on issues of family migration and membership in Europe have mostly focused so far on marriage and partner migration leaves open the question of children and grandparents, a puzzling yet telling absence (but see Horsti and Pellander 2015). Most of the literature focused on children and family reunification consists of a specialized niche in legal studies, notably asylum law, and emphasizes issues of protection and trafficking. Still, according to Allen White et al., the relative absence and analytical silence over children in the literature on family migration stems from the fact that ‘migrant children are represented as passive, needy and different’ (2011: 1159; see also Mustasaari 2014). Recent developments in the literature on family migration offer promising avenues of enquiry for the future. Ethnographic accounts and anthropologies of institutions provide us 185

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with a fresh look on the complexity and messiness of the enactment of family migration beyond policy discourses. This agenda could be pushed further to look more closely into family migration policy design and agenda-­setting (see e.g. Paquet 2015 on Canada). Also, critical examinations of family migration and civic integration policies as a defining nexus of public discourses and policies have also started to emerge (Bech, Borevi and Mouritsen 2017; Bonjour and Kraler 2015; Charsley, Bolagni and Spencer 2017; Spencer and Charsley 2016). This literature notably points out that the available empirical evidence on the integration consequences of intra-­ethnic marriage migration is surprisingly limited and has, as yet, not produced definitive support for the suggestion that marriage migration is an ‘integration problem’ (Bonjour and Kraler 2015; Spencer and Charsley 2016: 15). Finally, as requirements for family reunification (such as minimum income, housing or pre-­departure language proficiency) increasingly become justified in terms of economic integration and the need to protect the welfare state, more research remains to be done on how class intersects with gender and race in family migration policies. Neoliberal and ‘flexible’ citizenship has been widely discussed in relation to labour migration to highlight how economic status appears to sometimes trump gender and race in the politics of belonging, but how this translates into the field of family migration, especially in relation to gender and race, remains to be further explored. Ultimately, long-­distance relationships and separations resulting from family reunification policies lead couples and families to re-­imagine spaces and practices of intimacy, parenthood and family. All of them read as vibrant testimonies of what it means to belong in contemporary Europe.

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Anne-Marie D’Aoust Horsti, K. and Pellander, S., 2015. Conditions of cultural citizenship: intersection of gender, race and age in public debates on family migration. Citizenship Studies, 19(6–7) pp. 751–767. Infantino, F., 2014. Bordering ‘fake’ marriages? The everyday practices of control at the consulates of Belgium, France, and Italy in Casablanca. Etnografia e ricerca qualitative, 1 pp. 27–49. Innes, A.J. and Steele, B.J., 2015. Spousal visa law and structural violence: fear, anxiety, and terror of the everyday. Critical Studies on Terrorism, 8(3) pp. 401–415. Jorgensen, M.B., 2012. Danish regulations on marriage migration: policy understandings of transnational marriage. In K. Charsley, ed., Transnational Marriage: New Perspectives from Europe and Beyond. London: Routledge. pp. 60–80. Kofman, E., 2004. Family-­related migration: a critical review of European studies. Journal of Ethnic and Migration Studies, 30(2) pp. 243–262. Kraler, A., 2010. Civic Stratification, Gender and Family Migration Policies in Europe, Final Report. [pdf] Vienna: BMWF/ICMPD. Available at: http://research.icmpd.org/fileadmin/ResearchWebsite/Test_content/ FINAL_Report_Family_Migration_Policies_Online_FINAL.pdf. [Accessed 7 February 2017]. Kraler, A. and Kofman, E., 2009. Family Migration in Europe: Policies vs. Reality. IMISCOE Policy Brief, no.  16. Available at: http://research.icmpd.org/fileadmin/Research-Website/Project_material/ NODE/IMISCOE_PB_Familymigration_in_EU.pdf [Accessed 26 February 2017]. Lahav, G., 1997. International versus national constraints in family-­reunification migration policy. Global Governance, 3(3) pp. 349–372. Lavanchy, A., 2013. L’amour aux services de l’État civil: Régulations institutionnelles de l’intimité et fabrique de la ressemblance nationale en Suisse. Migrations Société, 25 pp. 61–77. Lavanchy, A., 2015. Glimpses into the hearts of whiteness: institutions of intimacy and the desirable national. In: P. Purtschert and H. Fischer-­Tiné, eds, Colonial Switzerland. Rethinking Colonialism from the Margins. Basingstoke: Palgrave Macmillan. pp. 278–295. Liew, J., Balasundaram, P. and Stone, J., 2016. Troubling trends in Canada’s immigration system via the excluded family members regulation: a survey of jurisprudence and lawyers. Ottawa Faculty of Law Working Papers Series, [online] Available at: https://papers.ssrn.com/sol3/papers.cfm?abstract_ id=2839415. [Accessed 7 February 2017]. Liversage, A., 2009. Life below a ‘language threshold’? Stories of Turkish marriage migrant women in Denmark. European Journal of Women’s Studies, 16(3) pp. 229–247. Luibhéid, E., 2008. Sexuality, migration, and the shifting line between legal and illegal status. GLQ: A journal of Lesbian and Gay Studies, 14(2–3) pp. 289–315. Luibhéid, E., 2002. Entry Denied: Controlling Sexuality at the Border. Minnesota: University of Minnesota Press. Messinger, I., 2012. Schein oder Nicht Schein. Konstruktion und Kriminalisierung von ‘Scheinehen’ in Geschichte und Gegenwart. Vienna, Austria: Mandelbaum. Mustasaari, S., 2014. The married child belongs to no one? Legal recognition of forced marriages and child marriages in the reuniting of families. Child and Family Law Quarterly 26(3) pp. 261–282. Mustasaari, S., 2015. The ‘Nuclear Family’ paradigm as a marker of rights and belonging in transnational families. Social Identities, 21(4) pp. 359–372. Myrdahl, E.M., 2010. Legislating love: Norwegian family reunification law as a racial project. Social & Cultural Geography, 11(2) pp. 103–116. Neborak, J. 2013. Family Reunification? A Critical Analysis of Citizenship and Immigration Canada’s 2013 Reforms to the Family Class. Toronto: Ryerson Center for Immigration and Settlement. [online] Available at: www.ryerson.ca/content/dam/rcis/RCIS-WP-Root-No2014-7.pdf [Accessed 26 February 2017]. Odasso, L., 2017. L’action des groupes militants en faveur des couples binationaux. Entre soutien humain, juridique et conscientisation. Recherches Familiales, 1(13) pp. 199–133. Oliveira, O.R., Cancela, J. and Fonseca, V., 2013. Family Reunification in Portugal in Law and Practice [pdf]. Lisbon, Portugal: ACIDI. [online] Available at: http://research.icmpd.org/fileadmin/ResearchWebsite/Project_material/Family_Reunification_EIF/Portuguese.pdf [Accessed 7 February 2017]. Paquet, M., 2015. Bureaucrats as immigration policy-­makers: the case of subnational immigration activism in Canada, 1990–2010. Journal of Ethnic and Migration Studies, 41(11), pp. 1815–1835. Pellander, S., 2016. Gatekeeepers of the Family: Regulating Family Migration to Finland. PhD. University of Helsinki. Piper, N. and Roces, M., 2003. Wife or Worker? Asian Women and Migration. Lanham: Rowman and ­Littlefield.

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Family migration and membership Rytter, M. 2010. ‘The family of Denmark’ and ‘the aliens’: kinship images in Danish integration politics. Ethnos, 75(3) pp. 301–322. Rytter, M., 2012. Semi-­legal family life: Pakistani couples in the borderlands of Denmark and Sweden. Global Networks, 12(1) pp. 91–108. Satzewich, V., 2015. Points of Entry: How Canada’s Immigration Officers Decide Who Gets In. Vancouver: University of British Columbia Press. Schmidt, G., 2011. Law and identity: transnational arranged marriages and the boundaries of Danishness. Journal of Ethnic and Migration Studies, 37(2) pp. 257–275. Schweitzer, R., 2015. A stratified right to family life? On the logic(s) and legitimacy of granting differential access to family reunification for third-­country nationals living within the EU. Journal of Ethnic and Migration Studies, 41(13) pp. 2130–2148. Spencer, S. and Charsley, K., 2016. Conceptualising integration: a framework for empirical research, taking marriage migration as a case study. Comparative Migration Studies, 4(18), [online] Available at: http://rdcu.be/pBPO [Accessed 26 February 2017]. Staver, A., 2013. Free movement and the fragmentation of family reunification rights. European Journal of Migration and Law, 15(1) pp. 69–89 Staver, A., 2014. From right to earned privilege? The development of stricter family immigration rules in Denmark, Norway and the United Kingdom. PhD Thesis, Political Science, University of Toronto. Turner, J., 2015. The family migration visa in the history of marriage restrictions: postcolonial relations and the UK Border. The British Journal of Politics and International Relations, 17(4) pp. 623–643. VanderPlatt, N., 2006. Immigration and Families/L’immigration et les familles. Canadian Themes/Thèmes Canadiens, [online] Available at: http://canada.metropolis.net/pdfs/CITC_Spring06_Families_FINALFullVersion.pdf [Accessed 5 April 2017]. Waaldijk C., 2015. Great diversity and some equality: non-­marital legal family formats for same-­sex couples in Europe. In: M. van den Brink, S. Burri, and J. Goldschmidt, eds, Equality and Human Rights: Nothing but Trouble? – Liber amicorum Titia Loenen. Utrecht: Netherlands Institute of Human Rights (SIM). pp. 223–245. Weiss M.G., 2011. Strange DNA: the rise of DNA analysis for family reunification and its ethical implications. Genomics, Society and Policy, 7(1) pp. 1–19. White, A., Laoire, C.N., Turell, N. and Carpena-­Méndez, F., 2011. Children’s role in international migration. Journal of Ethnic and Migration Studies, 37(8) pp. 1159–1170. Wilson, A., 2007. The forced marriage debate and the British State. Race and Class, 49(1) pp. 25–38. Wray, H. 2006. An ideal husband? Marriages of convenience, moral gate-­keeping and immigration to the UK. European Journal of Migration and Law, 8(3) pp. 303–320. Wray, H., 2011. Regulating Marriage Migration into the UK: A Stranger in the Home. Farnham and Burlington: Ashgate. Wray, H., Agoston, A. and Hutton, J. 2014. A family resemblance? The regulation of marriage migration in Europe. European Journal of Migration and Law, 16(2) pp. 209–247.

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Section commentary Integration at a crossroads: some thoughts on the non-­Western varieties and their recent implications Katya Ivaschenko-­Stadnik Integration debates through a non-­Western eye: main observations The current volume asks whether Western European concepts of integration are relevant for other countries in Europe, outside Western and European Union (EU) academia. Just a quick look into the ‘non-­Western’ European literature reveals that integration debates only appear sporadically in the up-­to-date academic scholarship. This comes as no surprise: the intensity of scholarly debate resonates with the regional migration context dominated for a long time by the outgoing or transit flows, or arrivals of culturally and ethnically similar groups. Indeed, as it stands now, both immigration and integration are relatively novel topics for the non-­Western part of European continent. In the countries of Central and Eastern Europe, which, since their membership in the EU have only now begun to discover the challenges of growing immigration, the relatively low volumes and low levels of diversity in immigration flows have not inspired any intense integration debates thus far.1 In non-­EU Europe,2 which largely remains the corridor for migrants to reach the EU and sending territory, some integration debates, specifically related to the mass internal migration, conflicts and forced displacements, have been boosted in the affected countries. Similarly to Georgia in 2008, between 2014 and 2017 Ukraine lost parts of its territory and become a country with the highest number of Internally Displaced Persons (IDPs) in Europe, currently estimated as 1.6 million (GRID, 2017). As integration of IDPs from war zones is a challenge to both state welfare systems and peacekeeping for the host communities, a new turn in localised academic discussions to focus on civic integration would be welcomed as a timely and long-­awaited development. The first research into these populations is currently underway in Ukraine,3 and it is a novel phenomenon, going against the mainstream European integration research focussing mainly on ethnically and culturally different minorities. A promising start to current integration discussions in the region can be observed with the recent launch of international projects which incorporate regional collaborators from non-­EU Europe and look at the ways the temporary migrants from Asia and Africa are being accepted in transit countries.4 Presumably, as established migration patterns eventually change, research and conceptualisation will follow, and we can expect more academic production in the field. There is, however, an exception to this pattern of low-­level immigration, high-­level emigration and resulting low interest in integration studies: the Russian Federation (RF ) has been the 190

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largest European country hosting 11 million immigrants within its borders, and one of the longest-­standing immigration destinations for ethnically and culturally different immigrants in the non-­Western world.5 Russia merits attention as a case study not only as regards the evolution of integration models in a non-­Western European host country, but also as a possible paradigm of integration outside of the Western liberal democracy. Has integration become a fully-­fledged subject of the academic debate there? If so, do the main concepts develop in line with the established Western tradition analysed in this volume?

Non-­Western integration model in the making: the Russian path Despite the lack of general consensus on what ‘integration’ means as a concept, it is largely understood to be a two-­way process involving both opportunities, enshrined in state legislation and supported by formal and informal networks, structures, communities, etc. in a country of immigration, and abilities and motivations to use them on the part of newcomers. In the case of Russia, as the primary country of destination in the post-­Soviet space and a huge multi-­ethnic society, currently going through a period of instability, integration seems to have become a two-­way problem with both a lack of opportunities on the host part and a lack of motivation on the part of migrants facing an uncertain future (Karpenko, 2016: 170–171). In this section, Cristophe Bertossi and Jan Willem Duyvendyak launched their discussion by mapping out Western European models of national integration. The authors point out that integration of immigrants became an important public issue in Europe in the 1980s, with the permanent settlement of postcolonial foreign migrants as well as ‘guest workers’: bearers of other languages/dialects, ethnicities and cultures. Apparently, that rather exceptional experience can be linked to a comparable case on the East of the continent. Mass immigration to Russia, which began in the 1990s after the break-­up of the Soviet Union into fifteen independent states, might also be seen as postcolonial, but the profound difference is that most immigrants from neighbouring states into the then newly-­fledged RF belonged to one of two groups. The first group was made of people of the same ethnicity as the majority host community, such as ethnic Russians resettling from former-­USSR republics, notably from Transcaucasia and Central Asia,6 where they did not constitute a dominant group. The second group was made of non-­ethnic Russians, immigrants, who were however well assimilated into Russian language and culture long before their arrival to RF as a result of the Soviet state policies. That unprecedented wave was not fully characterised as immigration, because even non-­Russian newcomers were seen as repatriated ‘compatriots’.7 (Malakhov, 2015; Prokhorova, 2017: 15). Experts argue that the relatively homogenous ethnic and cultural composition of some of the early wave’s immigrants explains why integration has long been disregarded as an issue in official Russian discourse. When, later on, most notably different kinds of migrants arrived, not influenced by a previously united historical past, values and norms, it finally became an issue of concern, and the search for appropriate integration model(s) occurred to be overwhelmed with a set of political biases and xenophobic stereotypes8 (Mukomel, 2005: 66–75, 2014: 66–75; Drobizheva and Golovakha, 2007: 159–166; Iontsev and Ivakhniuk, 2013: 2; Tishkov, 2008). Currently, in the official Russian political discourse, a high level of anti-­immigration public attitudes persists (Shnirelman, 2011; Gudkov, 2013; Gulina, 2017: 167–169) and is often used by the elite to justify a utilitarian immigration model. The approach is based on the acceptance of foreigners who are qualified workers (interestingly called Gastarbeiters, a term widely used to indicate migrant workers) as a temporary measure. In essence, ‘they just work/temporally live here, and we don’t need them integrated into society’ (Malakhov, 2015; Karpenko, 2016: 191

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157–159). While integration has recently become the catchword of political debate, it seems that it is only used in a superficial way, without a deeper conceptualisation or relevant policy design.9 Indeed, the Russian government tends to adopt a variety of different models for dealing with different groups of migrants: from the complete civic integration policy of ‘compatriots’ and Russians abroad (Molodikova, 2017), to, at the other end of the spectrum, partial exclusion of ethnically different temporary migrant workers. Experts argue that, regardless of the intentions, the plight of the newcomers has not been successfully explored in the terms of their actual integration needs which require more grounded research, conceptualisation, and, ultimately, creation of more consistent policy tools to address those needs (Iontsev and Ivakhniuk, 2013: 6; Vorobieva and Topilin, 2016: 134–140; Prokhorova, 2017: 70).

Civic integration challenges in Russia and beyond Some state-­imposed obstacles regarding the application of an inclusive integration model are discussed by Costica Dumbrava. Therein it is argued that across Europe, citizenship often remains ‘a privileged tool of integration’. In this section, Sara W. Goodman examined how civic integration policies, conceptualised as individual-­oriented, replace national models of membership. Although such discussions have not often been per se present in the Russian academic literature, the latter thesis can be fully adopted in the Russian case: access to Russian citizenship and to civic rights in RF depends on the migrant’s origin. Different passports mean different possibilities of access, and national and even supra-­national models of membership, though based on nationally-­defined values and belonging, prevail10 (Iontsev and Ivakhniuk, 2013: 8–16). In fact, the access to citizenship seems to be shaped by the geopolitics. The Russian imperial policies in ‘its former provinces’ (Inozemtsev, 2017) make the access to rights for migrants an element of bilateral relations. Once neighbouring states fall away from the ‘Russian integration core’,11 they are treated as hostile, and the mechanism of the ‘alienation scenario’ is put in place. This notion is picked up by the media and the attitudes of the public change. Soon after, surveys capture a growing social distance between the host population and the newcomers from the states which are ‘no longer pro-­Russian’, making more generous policies on citizenship unpalatable.12 Thus citizenship policies and ‘rights-­based approach’ are not dependent on generalised policy responding to the very Western question: who are we and how we want to construct the ‘us’. Instead, the ‘us’ seems to be a rather tight group monopolised by the state:13 migration, rights and belonging in contemporary Russia are tailored to meet the political needs of the ruling elite and is often used as a foreign policy tool (Gulina, 2017: 173), making use of the public sentiment. Yet, the focused discussions on citizenship issue can hardly be avoided: recent reports illustrate that, facing an increasing pressure from both state institutions and host communities,14 immigrants are seeking legal status because the illegal or semi-­legal stay is troublesome, if not dangerous now (Gusenko, 2017). This suggests that the new immigrants, a majority of whom represent non-­Slavic ethnic groups (Uzbek, Tadzhik, Kyrgyz, Kazakh, Azeri, etc.), are ready to take more responsibilities for becoming a part of host society, be it temporary or permanent, and expect that the receiving state offers newcomers some secure status, protection and opportunities for inclusion and civic participation from its side, too. This development serves as an important lesson for the neighbouring countries for two main reasons: (1) they also should be ready to secure status and safety of the different groups and individuals flowing across their borders to the RF which still remains among the key centres of gravity for the economically dependent regions; (2) they should learn lessons from the Russian experience of dealing with mass immigration, be that experience positive or negative, as it will save them the trouble of 192

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rediscovering typical yet painful problems that might suddenly unfold if the flow of newcomers grows.

In the search of common solutions All the above shows that the Western concepts and debates have an apparently limited scope in the Russian context but there is light at the end of the tunnel: although the political contexts of applying the integration models are different, the social and cultural mechanisms of integration have much in common. In both Russian and Western discussions, integration is seen not only as a state­led top-­down process: grassroots integration through networks and civil society is seen as an extremely powerful, yet not sufficient tool (Tkhach and Brednikova, 2016). It is worth mentioning that individual, micro-­level integration of immigrants is kept in focus of many valuable ad-­hoc studies in Russia, specifically dealing with the issues of gender, family and membership (this is also covered in the concluding section’s chapter by Anne-­Marie d’Aoust). Special attention is given, notably, to the changing notion of home in female migration, as well as to the three lines of integration: between immigrants and host societies, within immigrants’ communities (ties with diaspora) and between immigrants and stayers (ties with home) (Brednikova and Tkach, 2010; Tiuriukanova, 2011). This scope of research embarks upon a new human dimension of integration that has been largely overlooked by researchers before. Still, both in Russia and in Western Europe, researchers point out the contradictory and fragmented nature of integration that implied both inclusion (through horizontal ties) and exclusion (through vertical control by the state) (Brednikova and Tkach, 2014). Both in the West and in the non-­Western world, integration finds itself at the crossroads with many uncertainties. This calls for a high commitment in further theoretical assumptions and shared responsibilities in future practical applications.

Acknowledgement I express my appreciation to Olga Tkach for her insight on the Russian scientific debate on integration, Svitlana Odynets for her up-­dates on the new research in the region and to Ben Hicks for his editorial assistance.

Notes   1 See Pawlak this volume. The analysis of the ongoing political, non-­academic debates concerning possible future inflows of culturally and ethnically diverse groups is beyond the scope of this chapter.   2 I do not refer in my analysis to Turkey, as a transcontinental Eurasian country which deserves a separate analysis.   3 Several Ukrainian research centres conduct surveys with a focus on the social and economic inclusion of IDPs. The fieldwork is supported by the international donors such as International Organisation for Migration (IOM), United Nations High Commissioner for Refugees (UNHRC) et al. The study of civil inclusion is rare but the issue is receiving growing attention. See, for example, the recent Report on the Results of the Ukrainian Public Opinion Survey of the Internally Displaced Persons and Citizens of the Hosting Communities by Kyiv International Institute of Sociology (conducted with the financial support of the Government of Canada, pp.  8–14). Available at: www.kiis.com.ua/materials/pr/20160111_ Shpiker-report/KIIS%20survey%20for%20Internews111.pdf. Accessed 12 December 2017.   4 See, for example, the ongoing project ‘Transnational Migration in Transition: Transformative Characteristics of Temporary Mobility of People (EURA-­NET)’. Available at: www.uta.fi/edu/en/research/ projects/eura-net/index.html. Accessed 20 November 2017.   5 See United Nations Population Division (UNPOP) statistics and Di Bartolomeo, this volume. See also 30 Countries Hosting the Most Immigrants.World Atlas, 25 April 2017. Available at: www.worldatlas. com/articles/highest-immigrant-population-in-the-world.html. Accessed 10 September 2017.

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Katya Ivaschenko-­Stadnik   6 In 1989–2003 the total number of ethnic Russians immigrating to the Federation has been estimated at 3.4 million, including 1.2 million from Kazakhstan, 1.6 million from other Central Asian states (Kyrgyzstan, Tadzhikistan, Turkmenistan, Uzbekistan), and 1 million from Transcaucasia (Azerbaijan, Armenia, Georgia). See: State Policy of Overcoming Demographic Crisis in Russia. Moscow: Economika. Nauchnyj Expert, 2007. pp. 150–151.   7 As one of the central tenets of Russian migration policy, ‘compatriots’ are defined in the corresponding Federal Law as ‘persons (and their descendants) born in one state, living or residing in that state or abroad and possessing common language, history, cultural heritage, traditions and customs’. See Federal Law ‘On the state policy of Russian Federation towards compatriots’. Available at: www.consultant. ru/document/cons_doc_LAW_23178/4733d92796950eff2201181bdbcf75ca68fa7ddc/. Accessed 20 November 2017.   8 Because the open ethnic intolerance was normally stigmatised in the official Soviet discourse, largely neutral or positive attitudes towards migrants provided rather firm ground for the successful integration of newcomers into the ‘national fold’ in the initial post-­Soviet period. However, such ‘safe inertia’ was contested during further remarkable political shifts. Currently, the authorities-­led Orthodox-­nationalist awakening in Russia accepts the emergence of the segregation and increased inter-­ethnic tensions.   9 Notably, the Concept of the state migration policy of the Russian Federation till 2025, adopted in June 2012, admits that ‘exclusion of migrants in the host community has been the direct consequence of the lack state programs of adaptation and integration in RF ’, see section 17 of the Concept. Full text available at: www.demoscope.ru/weekly/knigi/koncepciya/koncepciya_migr.html. Accessed 13 December 2017. Several years later, in 2016, the institutional mechanisms and allocated resources for integration were still not articulated in the regulations of the state bodies implementing migration policy in RF. See Report of Migration Committee under President of RF, available at: www.ruvek.ru/?module=ar ticles&action=view&id=10378&theme=11. Accessed 12 December 2017. 10 As Vladimir Putin put it in November 2016, during an awards ceremony for geography students, ‘Russia doesn’t end anywhere’. This has been taken on as a new doctrine for taking care of Russian interests and those of ethnic Russians (or Russian-­speaking populations) wherever they live. 11 The popular Russian term that describes the circle of close partners that give preferences to the economic, political and cultural involvement in the projects initiated and supervised by the RF (‘rossijskoje integratsionnoje yadro’). 12 Just to give an example, the attitudes towards Ukrainians in Russia dramatically deteriorated right after the Euromaidan, being viewed by the Russian newsmakers and analysts as an anti-­constitutional right­wing nationalistic coup sponsored by the West. See experts’ comments in Russians and Ukrainians Divided by a Gulf of Distrust // DW, 1 February 2016. 13 On the authorities-­led nationalist awakening in Russia, see, for example, Mirovalev M., ‘White supremacist gathering underscores Russia’s nationalist trend’ (reporting from Moscow), LA Times, 22 August 2015. Yet, the rise of the populist nationalist movements is observed not only in Russia. This challenges the very idea of European egalitarian legacy. The doctrine of ‘becoming great again’ as an obsessive turn for too many nations might become a growing challenge to the pluralist integration models in the West, too. This suggests that no model is safe and stable, that is why any cases of stigmatising ‘others’, discriminating, violating, excluding and marginalising should be closely watched everywhere (even if strong egalitarian integration models prevail in the discussions). 14 Belonging to ‘visible minorities’ is still a challenge in Russia, which limits employment and housing opportunities (for example, ‘only Slavic people are accepted’ has been a widespread candidate requirement in the Russian ‘work’ and ‘room to let’ advertisements). See, for example, a typical work announcement with ‘racial eligibilities’ at: http://active-personnel.ru/otkrytye-vakansii/. Accessed 13 December 2017. See also An Alternative Report on Racial Discrimination in the Russian Federation by Anti-­ Discrimination Centre MEMORIAL and SOVA Center for Information and Analysis submitted to the UN in 2013 (it’s dissemination, however, is prohibited in RF by the court’s decision). Available at: www2.ohchr.org/English/bodies/cerd/docs/ngos/SOVA_ADCM-IPHR_FIDH_RussianFederation_ CERD82.pdf. Accessed 12 December 2017.

References Brednikova O., Tkach O., 2010. What home means to nomad. Laboratorium: Russian Review of Social Research, no.  3. Available at: www.soclabo.org/index.php/laboratorium/article/view/219/506 [Accessed 15 September 2017]. [In Russian].

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Section commentary Brednikova O., Tkach O., 2014. The Problems of Social Integration of Labour Migrants as a Filed for Cooperation for Authorities, Civil Society, Employers and Migrants. St. Petersburg: Centre of Independent Social Research. Unpublished report. [In Russian]. Drobizhheva L., Golovakha E. (eds), 2007. National-­Civic Identities and Tolerance: Experience of Russia and Ukraine in the Transformation Period. Kiev: Institute of Sociology NAS Ukraine: Moscow, Institute of Sociology RAS. [In Russian]. Global Report on Internal Displacement/Internal Displacement Monitoring Centre (GRID). 2017. Norwegian Refugee Council, May , p.  24. Available at: www.internal-displacement.org/global-report/ grid2017/pdfs/2017-GRID.pdf [Accessed 15 September 2017]. Gudkov L., 2013. Russians for Russians? It’s no more shame now. On the rise of xenophobia in Russian Federation. Radio Free Europe, November 2013. Available at: www.svoboda.org/amp/25172654.html [Accessed 10 September 2017]. [In Russian]. Gulina O., 2017. Migration as a (geo) political challenge for Russia. RUSMPI, March, pp. 157–173. Available at: www.academia.edu/34089266/Migration_as_a_Geo_Political_Challenge_for_Russia [Accessed 10 September 2017]. Gusenko M., 2017. Gastarbeiters worth two billion: labour migrants are returning to Russia. Rossiyskaya gazeta, no. 7368(202). Available at: https://rg.ru/2017/09/07/trudovye-migranty-nachalivozvrashchatsia-v-rossiiu.html [Accessed 16 September 2017]. [In Russian]. Inozemstev V., 2017. Russia, the last Colonial Empire. The Amer­ican Interest, 29 June. Available at: www. the-American-interest.com/2017/06/29/russia-last-colonial-empire [Accessed 10 September 2017]. Iontsev V., Ivakhniuk I., 2013. Migrants’ integration models in contemporary Russia. CARIM East Research Report, 2013/12. Available at: www.carim-east.eu/media/CARIM-East-RR-2013-12_RU. pdf [Accessed 10 September 2017]. [In Russian]. Karpenko O., 2016. Reforms of the migration policy: imposed integration. In: Barsukova S. et al., (eds) Reforms in Russia in the 2000: From Law to Practices. Moscow: High School of Economics. [In Russian]. Malakhov V., 2015. Integration of Migrants: Concepts and Practices. Moscow: Liberalnaya Missiya. [In Russian]. Molodikova I. (2017) Russian policy towards compatriots: global, regional and local approaches. In: Nikolko M., Carment D. (eds) Post-­Soviet Migration and Diasporas. Migration, Diasporas and Citizenship. London: Palgrave Macmillan. Mukomel V., 2005. Migration Policy in Russia. Post-­Soviet Contexts. Moscow: Institute of Sociology RAS, Dipol-­T. [In Russian]. Mukomel V., 2014. Xenophobia and migrant-­phobia in the context of the trust culture. Mir Rosii, (1), pp.  137–166. Available at: www.hse.ru/data//2014/03/26/1318829832/mir%20rossii%20 %E2%84%961_%202014%20[Pages%20137%20-%20166].pdf [Accessed 10 September 2017]. [In Russian]. Prokhorova A., 2017. Integration Policy in Russia: The Evaluation of Effectiveness. Moscow: LAP LAMBERT Academic Publishing RU. [In Russian]. Shnirelman, V. 2011. Threshold of Tolerance: Ideology and Practice of the New Racism. Volume 2. Moscow: Novoe literaturnoe obozrenie. [In Russian]. Tiuriukanova E., 2011. Women-­Migrants from the CIS to Russia. Moscow: Max Press. [In Russian]. Tkach O., Brednikova O., 2016. Labour migration and the contradictory logic of integration. In: I. Liikanen, J.W. Scott, T. Sotkasiira (eds) Russia in The EU’s Eastern Neighborhood: Migration, Borders and Regional Stability. Abingdon and New York: Routledge. Tishkov V., 2008. Ethnic and Religious Diversity as the Basis for Stability and Development of the Russian Society. Articles and Interviews. Moscow: Academia. [In Russian]. Vorobieva O., Topilin A., 2016. Russia’s contemporary migration policy: illusions and reality. Sociological Research, no. 7, pp. 134–140. [In Russian].

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PART IV

Irregular migration

16 Politics of Irregular Migration in Europe1 Moving beyond an EU-­driven research agenda Lyubov Zhyznomirska

Introduction Knowledge creation surrounding irregular migration and its politics has been largely dominated by policy priorities of immigrant-­receiving, mainly ‘western’ states. Research examining irregular migration in North America, western Europe and Australia feature prominently in global migration studies, as scholarship has sought to account for policy responses aimed at regulating ‘unwanted’ migration present in these territories (i.e. stock migration), and at preventing the arrival of asylum seekers and immigrants (i.e. flow migration). Since the late 1980s, western states’ concerns with controlling or ‘managing’ migration have resulted in a myriad of policy responses directed at the regulation of access to territory (through visa and border policies), labour markets, welfare states, citizenship, humanitarian migration (asylum and refugee policies), as well as at the conduct of policing, border protection and municipal registration of residents. In the European Union (EU) specifically, policy responses to irregular migration have become an issue influencing the fortunes of political parties at the ballot box and, more recently, the dynamics and popular support of the European integration process. In the EU’s migration policy universe, all migratory flows in the region have been viewed as being EU-­destined, turning the EU’s neighbouring countries into so-­called transit migration countries and making external migration relations with countries of origin and of transit of migration towards the EU a priority. The politicisation of irregular migration has had an impact on the intellectual structure of migration studies. Bommes and Sciortino (2011, p.  13) characterised the field as being long dominated by policy-­embedded scholarship and humanitarian reporting, with both streams of literature portraying irregular migration as a problem to be solved. Only since the mid-­2000s, migration scholars have started systematically examining irregular migration as a structural phenomenon of European capitalist economies after World War II and a research problem, rather than a political problem of governance and management. In addition, there is a difference in the attention migration scholars in the east and the west of Europe pay to irregular migration. In Eastern Europe, irregular migration has largely remained a category for public policy reporting, rather than academic studies (with an exception of studies on Turkey and Russia, due to the presence and politicisation of large undocumented and asylum-­seeking population in these countries). 199

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This chapter reviews scholarship on the policies and politics of irregular migration in Europe by paying critical attention to how irregular or illegal immigration has been theorised. It starts by examining the emergence of the concept and its inherently political nature as it relates to wider socio-­economic and political transformations in Europe. Then it reviews the literature on the politics of irregular migration in Europe, highlighting the three major framing of irregular migration in policy terms – specifically, as the expression of the state’s loss of control over borders and territory, a security threat and a problem of uncontrolled flows. This is followed by an examination of scholarship that utilises the concept of ‘transit’ irregular migration. The chapter concludes by highlighting the European challenges in the governance of irregular migration and charting potential avenues for the development of scholarship in this field.

What’s in the name: the concept of ‘irregular migration’ The emergence of the concept of irregular, or ‘illegal’, migration is related to the political and economic dynamics of the modern nation state. Changes in the perception and categorisation of foreigners as ‘illegals’ is associated with processes of political nation-­building, and the emergence and construction of the idea of citizenship, which divided the world’s populations into nations, some of which were cast as being undeserving and/or ‘national security threats’ (Düvell, 2006a, p. 24; Chacon, 2008). Politically, in the twentieth century, states increased their capacity for population and territorial control thanks in part to law enforcement, particularly with the invention of passports (Torpey, 2000) and implementation of deportation procedures (Walters, 2002). In turn, economic changes triggered social transformations, and changing modes of production in postmodern economies built on the demand for mobile, flexible and insecure labour (Düvell, 2014). However, states responded to new forms of geographic mobility within globalised neoliberal economies with increasing attempts to control and regulate people on the move. As Düvell (2014, p. 1) succinctly states, ‘Irregular migration only exists because policies determine which types and levels of migration are permitted and which are not.’ Legal definitions and terminology used in relation to migrants in irregular situations differ across the continent. Inherently political, they usually capture irregularity of a foreigner’s status in a given country in reference to modes of entry, residence status, employment status and type of employment. The factors influencing one’s irregular status may be multiple. One’s irregularity may be derived only in relation to employment, while residence papers are legal, or it may be based on informal or illegal status in both respects (i.e. residence and work). Researchers have documented that bureaucratic red tape and/or labour market dynamics in some southern European countries may produce irregular stay or irregular work creating ‘befallen irregularity’ (González-Enríquez, 2014) or ‘semi-­legality’ (Kubal, 2013), when migrants morph from legal to illegal status and vice versa with regard to employment or residence. This also happens because certain sectors, such as construction, domestic work, agriculture and the hospitality industry, are dependent on the cheap labour of irregular migrant workers. Finally, the stock of irregular migrants also tends to include tolerated persons without a regular status (with or without documents) and those whose asylum claim was denied but who cannot be deported on compassionate or humanitarian grounds (for a wider discussion on typologies of irregular statuses, see Tapinos, 2000; Triandafyllidou, 2010; Morehouse and Blomfield, 2011; Triandafyllidou and Bartolini, 2017). Despite much-­discussed and repeatedly circulated numbers on the sizes and features of irregular migration in Europe, the real-­time situation with irregular migration is often unknown (CLANDESTINO, 2009). Comprehensive statistics on migrants of irregular status are rarely available even in those countries that claim the ‘fight against illegal immigration’ as a key policy 200

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priority (Triandafyllidou, 2010). Nevertheless, the ‘number games’ and ‘political games’ associated with a group labelled as irregular migrants occur in all European countries, albeit with subtle differences in each state (Vollmer, 2011). As the next section will demonstrate, political anxieties about unregulated employment and its links to irregular migration, conflated with the perception of asylum seekers in Europe as ‘bogus’ and, more recently, terrorist threats, has become a point of contention for European governments in the last 30 years. Such preoccupations further link irregular migration to state concerns over lost control over borders and migration flows, resulting in increased attempts to institute migration controls as a response. The perceived need by executive authorities to demonstrate to their populations – or to EU institutions, in light of the pressures of the European integration and/or political and economic association with the EU – their capabilities to effectively manage migration is an important element in the politics of irregular migration (Geddes, 2005; Vollmer, 2010; van der Leun and Ilies, 2010; Follis, 2012).

Irregular migration in Europe: the expanding logic of migration control What stands out in migration studies in the field of irregular migration is scholarship that, for a while, was very much driven by policy developments in (western) European countries. In the policy and public realm since the 1990s, across many European countries political responses to irregular migration were based on the conflation and confusion of migration categories (specifically, irregular migration with asylum and irregular migration with human smuggling and trafficking), stirring native population’s anxieties about cultural identity and economic safety (Geddes, 2005). Scholars focused on examining the effects of increasing migration controls on the movement of people across and within European countries, controls which were instituted in response to concerns about the perceived loss of state control over borders and population movement, over labour markets and effective means of preventing the irregular employment of foreign workers, and, finally, concerns about potential security threats coming from asylum seekers in the EU. Since the 2000s, there has been significantly more attention paid to the dynamics of irregular migration and their interaction with European labour markets, welfare states and societies (Düvell, 2006b; CLANDESTINO, 2009; Triandafyllidou, 2010; Bommes and Sciortino, 2011).

Irregular migration as an outcome of liberal constraints In western Europe, concerns over irregular migration emerged on policy radars in the 1960s, in connection to irregular work. Already in the 1960s and 1970s, northern European countries had pioneered legislation aimed at controlling irregular migration as part of more comprehensive migration legislation packages (Vollmer, 2011, p. 318). In 1976, in light of growing interdependence and integration of national labour markets, the European Commission also weighed in by proposing a directive to develop a common approach to ‘combat illegal migration and illegal employment’ in the EC (European Commission, 1976) but it was not successful. Migration control logic trickled down to all European countries that have since become associated in any manner with the evolving European integration project in the last three decades. In the late 1980s, southern Europe (mainly Italy, Spain and Greece) followed with their own immigration control policies as they began experiencing an inflow of immigrant workers from Central and Eastern European countries, Asia and Africa. In turn, in the late 1990s and especially in preparation to the EU accession, Central and Eastern European countries adjusted their immigration and asylum policies in line with the EU’s demands (Boswell, 2003b). With the EU acquiring 201

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supranational competencies on visas, external borders, asylum and irregular migration in the Treaty of Amsterdam (1997), EU-­level policy-­making on irregular migration had intensified in the 2000s (van Munster, 2009). Migration scholars responded to such policy developments by analysing the effects of changing admission policies on the structure and composition of migration flows. The ‘liberal constraints’ literature conceptualised irregular migration as related to liberal western governments’ inability to enforce their migration controls due to bureaucratic resistance or inaction, existing human rights frameworks and vulnerable migrants’ ability to utilise judicial protection for recourse, and a lack of enforcement capacity to hold employers accountable for employing irregular migrants (e.g. Joppke, 1998; Cornelius et al., 2004). This literature shed light on the internal constraints associated with introducing restrictive migration controls and, hence, was among the first to explain why migration controls in practice have been less effective than the governments tend to present to the public. As irregular migration was conceptualised as being an outcome of the lack of enforcement of migration control policies, it spoke well to the narrative of states losing control over their borders and immigration flows, prompting the further introduction of controls at borders and consulates (Bigo and Guild, 2005). Media stories in the 1990s about the abuse of foreign workers, the frequently inhumane conditions that some irregular workers were exposed to, or the conditions under which they were transported, together with the media spectacle of migrants’ inventive ways of circumventing border checks in hideouts, triggered both societal responses and heightened human rights concerns about irregular migration on the one hand, and increased crackdowns on illegal border entries through investment in border technologies on the other hand.

Irregular migration as a security risk With the increased politicisation of immigration, a surge in anti-­immigrant sentiment and support for far-­right parties in the 1980s, European governments prioritised dealing with irregular migration through a security lens and reinforcing the migration control logic, rather than tackling the challenges associated with the availability of irregular work and opening channels for immigration and legal employment. The literature on the framing of immigration as a security threat has been growing (Wæver et al., 1993; Huysmans, 2000, 2006; Tsoukala, 2005; Bigo, 2008). Scholars examined the impact of securitisation both on the internal governance of the EU (e.g. Mitsilegas et al., 2003; Walters and Haahr, 2005; van Munster, 2009), and on the external relations in migration management (Lavenex and Uçarer, 2002; Boswell, 2003b; Balzacq, 2009; Zhyznomiska, 2012). The policy framing of immigration as a security threat has activated productive research agenda that examines, to give a few examples, irregular migration flows and ‘routes’ to Europe (e.g. Carling, 2007; Triandafyllidou and Maroukis, 2012), human trafficking and its links with irregular migration (Carling, 2005), the actors and institutions involved in (irregular) ‘migration industry’ (Bigo, 2014; Andersson, 2015), and the criminalisation of irregular migration in the EU (Karakayali and Rigo, 2010; Provera, 2015).

Externalisation of migration controls Security-­based logic in response to irregular migration drove European governments to seek an ‘added value’ of the EU, and domestic migration control agenda became shifted ‘up and out’– up to the EU level and out into the external relations with the countries of transit and origin of migrants (Lavenex, 2006). In the politics of irregular migration, managing flows through the prevention of arrivals and the deportation of those found in illegal situations has become a policy 202

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response, as have measures aimed at penalising/criminalising the facilitators of irregular migration those and who employed them. Generally, these broader principles have remained the core pillars of Europe’s response to irregular migration, whether they were applied to managing irregular migration flows through eastern borders in the 1990s–2000s, or, since the 2000s, through southern borders. As the EU’s external migration relations are reviewed by Reslow (this volume), the author’s treatment of this theme will be schematic. As EU institutions and governments seek cooperation with countries of origin and of ‘transit’ to control migration towards the EU, it creates an environment for policy convergence on migration and border control. The EU has been effective in policy transfer due to the EU’s accession conditionalities and other conditionalities built into readmission and visa cooperation with non-­EU European countries (Trauner and Kruse, 2008; Trauner, 2009; Taylor et al., 2013). Scholars have shown that the externalisation of migration management has created new actors in migration policy-­making – specifically, by empowering (1) international organisations in charge of migration (such as International Organization for Migration (IOM) and the United Nations High Commissioner for Refugees (UNHCR)) to act in transferring EU policies to countries deemed to lack effective migration management policies (Geiger and Pécoud, 2010), and (2) domestic and international actors in charge of immigration law enforcement and borders. The externalisation of border controls have pushed scholars to examine these policies’ effects on the governance capacities of non-­EU co-­operating governments and the fate of migrants potentially seeking entrance to the EU. The control turn in the EU’s immigration policies, among other things, has made it harder for humanitarian migrants to gain access to EU territory and submit asylum claims on the soil of some of the preferred asylum countries (such as Sweden or Germany), pushing some of them into the hands of human smugglers, or ‘facilitators’, and further blurring the distinction between asylum seekers and irregular migrants. Both human smuggling and trafficking have received plenty of attention, with researchers focusing on such broad themes as migrant strategies, smuggling as a business model, the effect of policies on migration routes (e.g. Carling, 2007; Triandafyllidou and Maroukis, 2012; Brachet, 2018; Zhang et al., 2018), and the use of trafficked labour in the EU (for the domestic care sector, see Ricard-­Guay and Maroukis, 2017). Together, these diverse studies document and analyse key components of government strategies aimed at regulating immigration flows by punishing those who participate in them in an ‘illegal’ manner, and those who act as intermediaries. The research demonstrates that both migrants and those who may facilitate their travel show creativity in adjusting to migration and border control regimes in Europe.

Are states in control of irregular migration? Uniquely for the EU, the principle of free movement within the EU gives migrants access to all countries once they legally enter one country. EU countries have shadow economies and demands for irregular workers, while lax migration enforcement policies make it possible for some irregular migrants to avoid being detected. Some scholarship has exposed migrants’ strategies to circumvent or abuse immigration regulations and policies (e.g. Broeders and Engbersen, 2007; Engbersen and Broeders, 2009; Ellermann, 2010), or find ways to maintain their quasi-­ legal illegal statuses in countries with more ‘illegality-­tolerant’ cultures (e.g. González-Enríquez, 2010, for Spain; Düvell, 2006b, for the UK; van Meeteren, 2014, for Belgium and the Netherlands). From an institutional perspective, bureaucratic cultures and practices may impede internal law enforcement and create an environment of bureaucratic tolerance of irregularities (Ellermann, 2006). Since the mid-­2000s European policy-­makers – both at the national and EU levels 203

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– have turned towards enhanced internal control mechanisms that have been dubbed as ‘policies of exclusion and discouragement’ (van Meeteren, 2014, p. 13). Such measures as the exclusion from basic public service provisions, increased police raids and identity checks, incarceration and expulsion, ‘voluntary’ returns, and employer sanctions have all been introduced in an effort to further intimidate irregular migrants and increase their visibility and detectability under state surveillance practices (see Broeders and Engbersen, 2007). In other words, European governments have poured resources into law enforcement and measures geared towards making irregular migrants more visible in order to intimidate, apprehend and ultimately expel them (see Engbersen and Broeders, 2009, on the Dutch case; Troitskiy, 2016, and Luhn, 2013, on the Russian case). These measures have expanded in European governments’ response to the inflow of migrants in 2014–2016. Specifically in the EU, governments have sought to increase their ability to expel illegally residing foreigners or those who entered the territory illegally by negotiating various bilateral or multilateral mechanisms for readmission (Cassarino, 2007), harmonising procedures for return and treatment of migrants undergoing expulsion (i.e. 2008 Return Directive), and instituting penalties for employers (2009 Employer Sanctions Directive). Despite the fact that the two directives were contentious ������������������������������������������������������������������������� at their adoption, there is little debate about their effects in the academic literature. The return has been largely normalised by being packaged as a ‘humane’ way of returning migrants with no legal right to remain and has been depoliticised by presenting the return as ‘voluntary’ in the European policy universe (see Kuschminder, this volume). Initial assessments of the Employer Sanctions Directive suggest that member states have introduced the restrictive measures from the Directive, but failed to bring about a regime of rules that guarantees fair treatment and appeal procedures to foreign workers employed without proper authorisation (European Commission, 2014; Guild, 2014; PICUM, 2015). More importantly, European governments continue to differ with regard to their internal migration regulation and enforcement regimes, with some countries simultaneously and contradictorily, having strict external controls and lax internal control measures as well as large informal economies (see Triandafyllidou and Ambrosini, 2011, for Greece and Italy). For that matter, European governments differ in terms of how tolerant they are of irregular migrants in vulnerable positions and how friendly they are towards regularisation. Toleration usually applies to those cases of failed asylum seekers, people in vulnerable positions (such as pregnant women or unaccompanied minors) or to those awaiting return or removal who cannot be deported and hence, are issued a special ‘tolerated’ designation (European Commission, 2013). The European Commission has argued that differences in how various member states apply the toleration statuses make it difficult to enforce a common implementation of the EU’s Return Directive. Importantly, there is a lack of scholarly literature on the topic of tolerated status and its normative challenges to European governments, and public debate and policy responses ‘take place in a context’ marked by various ‘emergencies’ (particularly in 2015–2017) (Triandafyllidou and Bartolini, 2017, p. 16). In turn, regularisation practices in the national context have been studied at least since the 1980s when regularisation became more common as a tool to address unintended outcomes of migration controls (Baldwin-­Edwards and Kraler, 2009). Since the 2000s, they have been treated to a more comprehensive comparative analysis as regularisation of foreigners became contentious in the EU that was harmonising its migration policies (Apap et al., 2000; Baldwin-­Edwards and Kraler, 2009). Scholars have deemed regularisation an effective tool for foreign labour management (Baldwin-­Edwards and Kraler, 2009), even if it continues to be contentious policy-­ wise (Brick, 2011). The existing research shows that southern Europe is an outlier in how often, and in what numbers, countries in this region have used regularisation programmes. Whereas Italy, Spain 204

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and Greece have undertaken a number of large-­scale regularisation programmes, northern European countries prefer not to use regularisation, or at least employ them only at a smaller scale and frequently in relation to migrants in vulnerable position (ICMPD, 2009). Therefore, the EU member states are guided by two distinct logics in their regularisation policies – specifically, by (1) a humanitarian and rights-­based logic and (2) regulatory and labour market-­oriented logic, which is non-­humanitarian in nature (Baldwin-­Edwards and Kraler, 2009). Almost all European countries have some form of legal, administrative or policy measures and have used regularisation as a migration management tool (ibid.). Regularisations tend to encompass those forms of irregularity that are being tolerated by governments, and may include both formal and informal incorporation of unauthorised migrants in a balancing act between economic/cultural incorporation and incorporation on vulnerability or civic contribution grounds (see Chauvin and Garcés-Mascareñas, 2014). European governments play with the ‘deservingness’ of irregular migrants in terms of allowing them to regularise and under what conditions, with employment deemed the important requirement for foreign residents to remain in the EU (Chauvin et al., 2013; Chauvin and Garcés-Mascareñas, 2014).

The politics of transit irregular migration EU’s policy concern with irregular migration created a lively research agenda examining ‘transit irregular migration’, with the focus on the eastern and southern neighbourhoods of the enlarging EU in the late 1990s-early 2000s, with the migrant population there largely constructed as migrants in waiting en route to western Europe. Triggered by alarms from western governments over potential massive migration flows from the Soviet Union (which, as history showed, failed to materialise), in the early 1990s, the IOM produced a report on ‘transit migration’ in Ukraine (IOM 1994a) and the Russian Federation (IOM 1994b). Concern over the movements of citizens from distant countries, taking their time and effort and engaging in dangerous journeys through multiple borders in their attempt to reach the EU, resulted in an intensive push by EU governments and EU institutions to co-­operate with the ‘transit’ countries on migration management. International migration organisations such as IOM, International Centre for Migration Policy Development (ICMPD) and UNHCR have been important partners in producing knowledge related to the migration situation in transit countries and in the Europeanisation of their migration policies through the transfer of policies, tools, and best practices in migration governance (Geiger and Pécoud, 2010; Lavenex, 2007). Initial studies on transit migration were largely descriptive, focused on policies and data collection. IOM continued to advance the importance of transit countries in international migration flows and remained important to the study of irregular migration in post-­Soviet countries (see IOM 1997, 2004, 2010). However, it is also important to examine transit countries’ internal concerns regarding unregulated people flows and/or the presence of foreigners without legal right to stay. Irregular migration emerged on the policy radar of various non-­EU European countries at almost the same time as EU-­15 started tightening their migration and border controls. After the fall of the iron curtain and the break-­up of the Soviet Union, a substantial part of population movement within Europe was irregular in nature. In effect, having relaxed registration and passport controls, post-­communist states had turned into migrant-­sending countries in a short period, while at the same time they also began experiencing inflows of new, ‘non-­traditional’ migrants from further east; for example, Central and Eastern European Countries (CEECs) countries became destination countries for labour migrants from the former Soviet Union (Braichevska et al., 2003; Malynovska, 2004, 2006). Particularly, the Russian Federation had experienced significant flows of humanitarian migrants and became a second regional magnet in Europe for legal 205

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and irregular labour migration, especially for nationals from former Soviet countries (Molodikova, 2010). It serves as a ‘core’ for the so-­called ‘CIS migration system’ (Tishkov et al., 2005; Molodikova, 2010) or the ‘Eurasian migration system’ (Ivakhnyuk, 2007), and has its important role in the politics of irregular migration in Europe. Illegal migration has been a highly contentious and politicised topic in Russia since the 1990s (Zhyznomirska, 2012). In English-­language migration scholarship, however, at least until the mid-­2000s Russia featured mainly as a source and transit country for human trafficking and irregular migration flows towards the EU. Only since the 2000s, as Russia’s demographic crisis and need for labour resources became more pronounced, has the scholarly focus shifted towards examining policies, actors and experiences of irregularly employed foreign workers in Russia. The country also ceased to be of significance as a transit country for the EU. Turkey is another important country in Europe’s politics of irregular migration. Sitting at the intersection between pan-­European, Asian and Middle-­Eastern migratory systems, Turkey became a country of transit irregular migration in the 1990s (İçduygu and Keyman, 2000) as it also received its share of illegal workers from the Balkans, former Soviet republics, Iran, Iraq and Africa (Kirişci, 2002; İçduygu and Aksel, 2012). In European migration research, Turkey features prominently as the ‘transit’ country for irregular migration (especially from Turkey to Greece) and a partner in the EU’s irregular migration management (Angeli et al., 2014; Ercan, 2016; Kuschminder and Koser, 2017). The concept of transit migration was actively used by migration scholars from the transit countries. Thus, in her studies of transit migration through Russia, Ivakhnyuk (2008, p.  6) defines the concept as ‘a short-­term temporary stay of a migrant on his/her way from a country of origin to a country of destination’ while Içduygu (2005), who studies irregular migration in Turkey, points to the intention of migrants there to move further west. For example, in Ukraine and Russia, neither the policies nor the public discourses in the 1990s and 2000s presented any ‘non-­traditional’ (meaning ‘not from former Soviet countries’) immigrant populations as migrants in waiting to leave for the EU (Zhyznomirska, 2012). Migration experts in post-­Soviet countries during the 2000s, especially if they viewed migration through the security lens, subscribed to the framing of ‘transit countries’ and the logic of migration routes inherently destined to the EU (on Ukraine, see Polyakov, 2004; ICPS/IPP, 2006; see Ivakhnyuk, 2008, for Russia). Studies on labour migration flows, however, pointed to the relevance of the two-­directional movements in Europe showing that workers from the former Soviet countries moved both west (to the EU countries and Central and Eastern European countries) and east, to Russia and Turkey among the main destination (Pirozhkov et al., 2003; Malynovska, 2006). Arguably, this inquiry into transit migration from the EU’s eastern neighbours has become less significant as the eastern migration route ceased to be important to the EU (accounting for less than 1 per cent of migration flows to the EU in the last decade, according to Frontex). Scholars have shifted their attention to studying transit migration mainly from the EU’s southern neighbours and Turkey (see Düvell et al., 2014; Koser and Kuschminder, 2016; Kuschminder and Koser, 2017). The EU’s externalisation practices have been under scrupulous investigation by human rights organisations (for example, Human Rights Watch, 2005, 2010). This line of inquiry – investigating the effects of the EU’s migration governance and external migration relations – has grown exponentially since the EU has been pushing for more migration management cooperation with countries in the Mediterranean and North Africa. Our knowledge of the illegal or irregular migration situation in this group of transit countries in Europe remains limited and far from systematic, meaning that scholarship remains largely in its infancy (see CARIM East web-­site, www.carim-­east.eu/publications/ for a review of legal and policy frameworks on irregular migration in non-­EU European countries). With the exception 206

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of studies on Russia (IOM, 2004; Ivakhnyuk, 2014) and Turkey (e.g. İçduygu and Aksel, 2012; Koser and Kuschminder, 2016), no qualitative or quantitative analyses examining irregular migration in non-­EU European countries in a non-­politicised manner, appear to exist. Studies to systematically and comprehensively analyse, for example, the effects of structural (e.g. economy or labour market conditions) and institutional (e.g. admission and integration policies) factors on the irregular migration situation in non-­EU Europe are needed. Hence, the research has some gaps waiting to be filled.

Conclusions Research into the phenomenon of irregular migration in Europe has grown increasingly more systematic since the early 2000s. However, irregular migration research is saturated with the problematique of a ‘developed’ Europe that prioritises finding solutions to the problem of irregular employment, irregular residence, and the arrival of foreigners without proper authorisation to enter and stay in their territories. More studies are needed in order to better understand country-­specific situations with migration flows across Europe and to account for discrepancies, if any, between national responses to the mixed migration flows in non-­EU European countries – specifically, with regard to the irregular employment of foreign workers and the situation of rejected asylum seekers. Is there anything exceptional in the way Europe has responded to irregular migration in policy terms? Arguably, the EU has been a leader in actively externalising migration and border control practices to the countries of origin and transit through foreign policy, development, trade, and other policies. The EU’s engagement with countries in its vicinity and further away have led to a pan-­European migration and border control regime that converges with respect to the prevention and control of irregular migratory movement. Managing (irregular) migration flows has largely become a priority that impacts other dimensions of the EU’s external relations and its internal policies. Publicly, EU governments and institutions pronounce the importance of addressing irregular migration in order to create channels for legal and well-­managed labour migration and to increase trust in the EU’s labour migration system (Walters, 2010). On the other hand, the management of irregular migration and asylum is also meant to save the EU’s humanitarian migration system from being overburdened. Addressing irregular migration has become a governance tool deployed in an effort to attain other political objectives. Irregular migration continues to pose political, economic, social and moral challenges to Europe overall. No policy thus far has been able to capture the diversity of intentions or agency of those migrants who choose irregularity as their path to realisation of life dreams and opportunities. As routes to legal immigration and employment become tightened and diversified (targeting specific groups of economically ‘worthy’ immigrants), those who cannot fit into existing policy boxes are left with no choice but to engage in a complex process of mobilising ‘the resources they can mobilise, developed in interactions with intermediaries (such as smugglers, border guards, fellow nationals, natives at transit or destination), and involving different tactics and strategies of navigating, or even manipulating, migration and asylum policy options’ (Triandafyllidou, 2017, p. 2).

Note 1 I would like to thank Anna Triandafyllidou, Agnieszka Weinar and Saskia Bonjour for their feedback on draft versions of this chapter. 

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17 Border management in Europe Europeanization and its discontents Karolina S. Follis

Introduction: the Europeanization of border management ‘To the question, “What is a border?” … it is not possible to give a simple answer’, wrote Etienne Balibar in 1993 (Balibar 2002, 75), in the opening of an essay that informed a raft of scholarship critically examining the multiple and often contradictory facets of contemporary international borders (see Walters 2006; Salter 2008; De Genova 2013, among others). Far from offering ‘simple answers’, a growing transdisciplinary body of work examines borders as key markers of sovereignty, sites of cross-­border interactions, the management of mobility and, more generally, as complex assemblages of control. Some scholars focus on borders as places where territories of two countries meet, creating unique conditions and opportunities for local people. This research became particularly salient as the European Union (EU) expanded eastwards in 2004 (and again in 2007) transforming borderlands along its Eastern edge (O’Dowd 2003; Popescu 2008; Henrikson 2011; Eskelinen et al. 2013; Grygar 2016). On the one hand it became important to understand the mobility of people across the external frontiers of the EU (Morokvasic 2004; Düvell 2006; van Houtum and Pijpers 2007), on the other – to grasp how EU bordering practices are exported, embraced or resisted in its neighborhood (Gawrich et al. 2010; Scott and Liikanen 2010; İçduygu and Yükseker 2012; Rechitsky 2016; Zhyznomirska 2016). Another strand of scholarship emphasized bordering as control. It highlighted the delocalized, even virtual nature of contemporary borders, in the EU and beyond (Lahav and Guirardon 2001; Balibar 2009; Johnson et al. 2011; Zaiotti 2016). A particularly strong focus, especially in the 2010s, was placed on the southern maritime border in the Mediterranean and Aegean Seas, where many thousands of migrants died in recent years in the course of sea crossings into Italy and Greece (e.g. Mountz and Hiemstra 2012; Andersson 2014; Bigo 2014; Brian and Laczko 2014; Albahari 2015; Tazzioli 2016; Follis 2017). In pursuing a research agenda examining modes of border control at sea, scholars have shown how the practices of securitization and surveillance intersect with those of humanitarian search and rescue (SAR), the administration of asylum and other forms of protection, and practices of confinement, containment and removal. All of these distinct objectives come together in the concept of border management, which for the border professional community is a term of art denoting the structures and practices that ‘encompass both security and facilitation of legitimate cross-­border flows of people and goods’ (IOM n.d.). Managing the borders of Europe today 213

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entails contradictory imperatives. The border must be at once impervious to breach and open to traffic perceived as economically beneficial. Responding to the contemporary EU and national politics of migration, policymakers and border authorities must be surveillance-­minded and technologically savvy, effective in deterrence and removals, but also fluent in the idiom of human rights and sensitive to the public perception of their actions. This chapter explores border management in Europe, at sea and on land, as a distinct field of expertise and intervention. It asks to what extent it is justified to describe this field as undergoing a process of Europeanization. It explores briefly the concept of Europeanization itself, and the analytic utility of its different iterations for thinking about European borders. It then turns to the specific strategies and arrangements that bind together national, EU and international agencies, private industry and civil society actors in the endeavour of Integrated Border Management (IBM) which underpins border control in the Schengen zone. Drawing on an understanding of Europeanization that emphasizes discourse and knowledge production, the chapter argues that within the EU, border management has developed in historically specific ways. It has become a paradigm that seeks to impose order and rationality onto the fundamentally exclusionary, and therefore antagonistic sphere of border control. The specific ways in which border management obscures and exacerbates border tensions are now reproduced along the external borders of the EU and beyond them. One important observation we can draw from the multiple strands of the recent literature on borders is that the core function of the twenty-­first century border management, that is distinguishing between persons deemed eligible to enter a given territory and those to be rejected, depends on the continuous production and supply of specialized knowledge. To manage borders effectively, practitioners must be aware of the EU’s external environment, the composition of migrant populations and of how they change. These changes are conceptualized as relative levels of risk and subjected to constant analysis, which in turn informs border management practices (Paul 2017). Border management personnel must also know the border itself, which entails understanding its institutions, laws, technologies and the relationships between them. This knowledge is specifically European, in ways that this chapter will discuss. Conscious of its many interpretations, for the purposes of this chapter, I will use the concept of Europeanization to denote the decentralized processes of the production, circulation and embrace of specifically European border knowledge by actors at all levels of border management. I take advantage of the versatility of the idea of Europeanization that scholars have used for different analytical purposes (Radaelli 2000). In political science, work on Europeanization encompasses analyses of normative change through the EU policy process, and studies of how EU institutions and decisions influence domestic ones in member states (Olsen 2002; Börzel and Risse 2007). Europeanization is often concerned with the ‘downward flow’ of activities from the EU to the national level, impinging upon ‘political actors, institutions, policies and identities’ (Lequesne and Bulmer 2012, 3). From this perspective authors have accounted for the ‘empirically observable differential impact of Europe’ in terms of relative convergence and divergence in policy outcomes (Börzel and Risse 2000). The concept of Europeanization ‘implies there is a substance or a core to Europe—a relatively coherent set of values, norms or perhaps institutions’, when in fact the idea of Europe is contested, there are ‘Europes, not Europe’ (Walters and Haahr 2005, 139). To avoid an essentialist interpretation, anthropologists, for example, use the notion of Europeanization to capture strategies of self-­representation and modes of governance ‘linked to the administrative and organizational power of the European Union’ (Borneman and Fowler 1997, 488). They emphasize the circularity of the process, ‘the EU as both the cause and effect of itself ’ (ibid.), rather than the existence of anything like a European ‘core’ radiating outwards (Harmsen and 214

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Wilson 2000; Firat 2009). Informed by these perspectives, I suggest that Europeanization can be fruitfully approached as the circulation of specifically European knowledge. It is a process whose outcome is not predetermined, but rather involves the emergence of sites and practices sharing ‘family resemblance’, but also featuring important differences. This chapter’s account of how border management becomes Europeanized highlights the dynamic feedback loops between EU, national and non-­state actors active in this field. From this perspective, we can appreciate that there is evidence of both compliance and resistance at different levels of the system, and we can understand the sources of tensions that continuously animate it. The following sections show how the Europeanization of border management in Europe, at the external perimeter of the EU and in its ‘neighborhood’, unfolds through the burgeoning field of border expertise, through the practices of its production and distribution, and through the relationships between multiple categories of de-­centred actors (EU, state and non-­state) who participate in this endeavour.

Can border control be European? In my ethnography of the transformation of Poland’s border with Ukraine into an external border of the EU, I documented how upon Poland’s entry into the EU, Polish border guards resisted the idea that one day the EU might have a single border enforcement authority on the EU’s external frontier. The idea of ‘common services to control external borders’ (Council of the EU 2001, cited in Neal 2009, 340) was explored in Brussels in the early 2000s. At the same time the EU channelled funds to shore up the infrastructure and operational capacity of border guards in accession states to prepare them for their new responsibility of patrolling the EU’s Eastern external frontier. Within the context of these new linkages with the administrative apparatus of the EU, one of my Polish border guard informants asserted, ‘there isn’t [a European Border Guard], and there won’t be one!’ (Follis 2012, 104). In the face of constant pressure to alter their established practices in the name of the newly imposed ‘EU standards’, Polish border guards accepted the need to modernize but insisted that only they are competent to patrol Poland’s borders, that their fundamental embeddedness in, and mastery of the nation’s borderland makes them uniquely qualified to do the job. The fieldwork that yielded this finding was conducted in 2005 and 2006. It reflected the political controversies over the approach to governing EU external borders, which played out in the years immediately preceding the 2004 enlargement. Should borders remain the exclusive prerogative of member states? Does granting jurisdiction to EU institutions over any aspect of external borders undermine national sovereignty? What is the appropriate role for the European Commission? At the time, key actors in Brussels did not anticipate movements of refugees from North Africa and the Middle East across the Mediterranean and Aegean Seas on the scale witnessed from 2011 onwards. Southern European states formed task groups on maritime borders (Western Sea Borders Centre in Madrid and Eastern Sea Borders Centre in Piraeus), but apart from the sea route between Albania and Italy, which saw the large-­scale exodus of Albanians in the early 1990s (PACE 1992; Albahari 2015), boat arrivals were seen as a trickle rather than a mass phenomenon (Brian and Laczko 2014, 86). Thus, attention and investment was concentrated on the new Eastern external borders. The ‘old’ EU had little trust in the capacity of border services in postsocialist accession states to execute their new tasks fearing mass border breaches from the east. The urge to prevent such ‘invasion’ played an important part in expanding supranational involvement in the management of external borders. However, Europeanization in this sphere received momentum already in the late 1990s. The 1999 European Council Summit in Tampere 215

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for the first time ever was exclusively dedicated to the issues of justice and home affairs within the common borderless area (Dinan 2005, 572). The idea that European space must be protected by tight borders secured in sophisticated ways to guard against a range of threats was thought of as a ‘logical continuation of the integration process and the principle of free internal movement in the EU’ (Neal 2009, 344). It was further reinforced by the events of 11 September 2001, which brought transnational terrorism to the top of the list of threats. The Treaty of Amsterdam (1997) elevated the ‘area of freedom, security and justice’ to one of the primary EU objectives, with ‘security’ as value receiving the most attention (Bunyan 1999). As Polish, Latvian, Lithuanian, Estonian, Slovak, Hungarian and Slovenian border guards were adapting to their new job description as protectors of the EU’s Eastern frontier, Frontex, or the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union, with headquarters in Warsaw, was established by the EU Regulation in 2004. Launched in 2005, the agency received a modest role of the ‘trustworthy operational Community coordinator and contributor that plays a key role in the implementation of the common EU policy for Integrated Border Management’ (Frontex 2006) overseen partially by the Commission, partially by the member states. Set up initially to ‘complement the national border management systems of the Member States’ (ibid.), Frontex’s mandate evolved and expanded in the course of its first decade. The expectations of the large migratory movements from the direction of the former Soviet Union did not materialize. Instead, in 2006 Spain saw a sudden increase in the numbers of Africans attempting to reach its territory via the Canary Islands, from approximately 5,000 people in 2005 to over 39,000 in 2006 (Carrera 2007; PACE 2008). In response to this perceived crisis in 2007 Frontex for the first time deployed a RABIT, or ‘rapid border intervention team’. RABITs, created by secondary EU legislation, consist of international border control experts and practitioners selected and trained by Frontex to provide ‘rapid technical and operation assistance’ in situ to the EU states that request it. Host states retain command in such cases, but under the guise of ‘technicalities’ and ‘operational cooperation’, Frontex provides training, support and specialized services. In the course of Joint Operation HERA Frontex and Spanish Guardia Civil patrols searched for and intercepted migrants at sea beyond territorial waters and returned them to ports of departure, effectively preventing them from lodging asylum claims on European soil (PACE 2008: par. 48). The interceptions of Operation HERA mobilized activists, who since then have consistently focused on Frontex as the force behind the European ‘war’ against migrants (see e.g. Frontexit n.d.). But Frontex is ‘both more and less then this militaristic view would allow for’ (Andersson 2014, 74). Ultimately, national governments retain control over borders and state loyalties continue to dominate ‘the supposedly Europeanized border regime’ (ibid., 75). Frontex can only act upon explicit request of member states, in spite of recent (failed) proposals to give it the authority to override them (Dimitriadi 2016). Frontex’s more profound, yet less visible role is in ‘rethinking the border’ (Andersson 2014, 76). This includes developing the concepts, vocabulary and technoscientific and bureaucratic knowledge subsequently disseminated and promoted among border guards in member states. This knowledge and the mechanisms of its distribution have come to underpin the management of the EU’s external borders.

Integrated Border Management In 2016 the European Border and Coast Guard Regulation gave Frontex a new designation and expanded its mandate. Frontex is now known as the European Border and Coast Guard Agency. The Regulation establishes the European Border and Coast Guard (EBCG), which is made up 216

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of Frontex and national authorities of member states, which are responsible for border management, including coast guards to the extent that they carry out border control tasks (Article 3). According to the Regulation, The objective of Union policy in the field of external border management is to develop and implement European integrated border management at national and Union level, which is a necessary corollary to the free movement of persons within the Union and is a fundamental component of an area of freedom, security and justice. (Regulation (EU) 2016/1624, Recital 2) IBM is subsequently defined in Article 4 of the Regulation as consisting of 11 distinct but interrelated components. Among them are border control (including the appropriate referral of persons who are candidates for international protection); search and rescue ‘in situations which may arise during border surveillance operations at sea’; risk analysis; cooperation between member states, with third countries and inter-­agency cooperation; return operations and the ‘use of state-­of-the-­art technology including large-­scale information systems’. The 2016 definition of IBM is more detailed and capacious than the original concept which involved a four-­tier model consisting of border control, control measures within the area of free movement, measures in third countries and return (Jones 2017, 2). Frontex’s new list of tasks, significantly expanded since the 2004 Regulation, corresponds to the new developments in IBM, which in turn reflect the European Commission’s response to the high numbers of arrivals to Europe in 2015 and early 2016. The 2015 Agenda on Migration identifies short and longer-­term priorities, from preventing ‘further losses of migrants’ lives’ (European Commission, 2015, p. 22) to strengthening the common asylum policy (ibid., p. 6). Some of the priorities, for example ‘developing a new legal migration policy’ (ibid.) are in fact ambitious political goals that require intergovernmental, as opposed to supranational action. Thus, in practice, the Commission’s main contribution to the regulation of human movement in Europe consists of Frontex’s border management mandate, which is presented as a set of neutral, self-­evidently desirable measures in the interest of efficiency, security and rule compliance. ‘Who would disagree that complicated and risky things should be managed?’ ask rhetorically Rutvica Andrijasevic and William Walters (Andrijasevic and Walters 2010, 981), before offering a Foucauldian critique of the concept of ‘border management’, which, as they argue, reconfigures borders into ‘objects of technical expertise and intervention’ obscuring the fact that they are inherently ‘sites of politics and social struggle’ (ibid., 977). In spite of the seemingly order-­ imposing rationality of managerialism, international government of borders is ‘a crowded, heterogeneous and sometimes disputed field of expertise and intervention’ (ibid., 979). Frontex, according to the authors, is just one of many actors working side by side with national border services and international organizations such as the International Organisation for Migration (IOM), International Civil Aviation Organisation and a number of specialized humanitarian organizations involved in assisting migrants in general, or caring for particular groups (asylum applicants, unaccompanied minors, victims of trafficking, etc.). Private corporations are also involved supplying technological products and expertise, with their influence and financial stake in border management continuously increasing (Carmel 2016), particularly given that ‘use of state-­of-the art technology’ is now enshrined in the legal definition of IBM. Yet, regardless of national loyalties and corporate power dominating this crowded field, Frontex successfully imposes its conceptual matrix at the external borders of Europe, even if it remains ‘an agency that lacks independence’ (Andersson 2014, 76). Frontex is the commissioning 217

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agent of much of the new technology now deployed at sea, on land and in the air (Hayes et al. 2014). It is the coordinator of Eurosur, that is the European Surveillance System defined as ‘the information-­exchange framework designed to improve the management of Europe’s external borders’ (Frontex, Eurosur n.d., see also Rijpma and Vermeulen 2015). Eurosur depends on a network of National Coordination Centres (NCCs), which gather and supply information from their own borders into the system. The infrastructure however has been developed at the European level, combining the decisive preoccupations with security and controlling irregular migration with the EU Treaties-­derived duty to observe fundamental rights.

The paradox of border management, humanitarianism and fundamental rights Throughout Frontex’s first decade, human rights watchdogs have scrutinized its human rights record and accountability (HRW 2011; PACE 2013). A range of diverse voices in international organizations, non-­governmental organizations (NGOs) and media expressed the view that Frontex’s actions are contrary to ‘European values’ or, in other words, to the EU’s overall commitment, declared in the Treaties, to fundamental human rights. This criticism prompted a set of moves on the part of Frontex to incorporate ‘fundamental rights’ language into its documents, and to build internal monitoring of its rights conduct into the institutional structure. Since 2011, Frontex has had a Fundamental Rights Strategy (Frontex 2011; Frontex, n.d.a) and a Fundamental Rights Officer. Expert partners, such as the EU’s Fundamental Rights Agency (FRA), European Asylum Support Office (EASO), United Nations High Commissioner for Refugees (UNHCR) and the EU Anti-­Trafficking Coordinator provide assistance to Frontex in developing an accurate understanding of ‘the particular situation of persons seeking international protection, … including women, victims of trafficking and children’ (Frontex 2011, 14). Since 2013 a Consultative Forum on Fundamental Rights independently advises Frontex on ‘on the respect, protection and promotion of fundamental rights through Frontex activities’ (Frontex 2016, 13). Such legal and institutional assurances have not entirely satisfied the critics who have noted the apparent contradictions and disjunctions between security, humanitarianism and rights. The discourse of border management projects the idea that the exclusionary effects of European border policies can somehow be achieved without sacrificing the humanitarian objective of ‘saving lives’ and without violating the fundamental rights of migrants who attempt to enter Europe. The official EU discourse increasingly emphasizes the life-­saving powers of technology and fundamental rights safeguards in border protection (see Lemberg-­Pedersen, this volume). This paradox has been conceptualized as the rise of the ‘humanitarian border’, which encompasses ‘an uneasy alliance of a politics of alienation with a politics of care, and a tactic of abjection and one of reception’ (Walters 2011, 145). Others stress how humane treatment of migrants becomes an important part of the professional identity of European border officials, ‘which also distinguishes them from other, less humane, police cultures’ (Aas and Gundhus 2015, 14). Frontex is far from the only actor declaring its humanitarian credentials at the border (see, for example, Cuttitta 2014 on the Italian Navy operation Mare Nostrum and Cuttitta 2017 on non­state humanitarian actors). However, the EU agency specifically ‘seems to have appropriated the language of fundamental rights as a standard item of its self-­presentation’ (Aas and Gundhus 2015, 14). Meanwhile, while Frontex’s everyday policing practices undertaken alongside national border guards to some extent enact compassion, they are also, or rather primarily, repressive (Fassin 2005; Pallister-­Wilkins 2015). They are repressive in the sense that they encompass practices such as deterrence, use of force, detention, deportation (benignly called ‘return’) and a 218

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general thwarting of the will and agency of the migrants attempting to cross borders. Repression is generally justified by the claim that irregular migrants are people who have knowingly broken rules, even if some practitioners acknowledge the complexity and desperate situations that drive such migration (Feldman 2013). For the individuals subjected to these forms of enforcement, the effects are brutal, even if (which is not always the case) personnel adhere to the principles of humane treatment (De Genova and Peutz 2009; Gerard and Pickering 2013; Plambech 2014; Schindel 2016). Along the entire perimeter of the EU, ideas derived from the distinct but interrelated traditions of humanitarianism (Fassin 2012) and human rights (Dembour and Kelly 2011) are in a tense relationship with the politics of border control. The latter is driven by anti-­immigrant sentiments, nationalist retrenchment in many EU member states, as well as securitizing imperatives and the interests of the ‘illegality industry’, that is the varied group of national and international agencies and private bodies engaged in the profitable business aspect of border management (Andersson 2014). This intertwining of the principles of fundamental rights and human dignity with the logic and practice of exclusion is characteristically European, distinguished from a more military-­strategic approach of countries like the United States and Australia (Bigo 2014, 214). It can be found in national border and immigration policies of member states (see Fassin 2005 on France, Albahari 2015 on Italy, Follis 2012 on Poland). Above all, however, it underpins the EU’s common activities at external borders, enshrined in directives, regulations, green and white papers, briefings, training manuals, codes of conduct and countless other documents which circulate among the border managers of Europe (Horii 2012). The EU has devised an exclusionary border regime grounded in ostensibly neutral legal principles, but the enduring tension between compassion and repression has material consequences. The EU embraces a concept of rights that is highly bureaucratized, and therefore largely stripped of its emancipatory potential. No matter how many fundamental rights clauses are incorporated in Frontex rules, border management cannot escape its primary task of selective exclusion of those who are deemed ‘undesirable’ according to relatively stable criteria: poor, non-­white, needy, but with no claim to international protection that would be considered justified according to current restrictive definitions of asylum (Bohmer and Schuman 2007). As such, border management reinforces racialized and gendered hierarchies of citizenship and non­citizenship. As Bigo shows, IBM ‘exists to avoid the danger of [migratory] overflows and that of the complete liquidity entailed by a world without borders. The logic of control is not so much a defensive/offensive military move against enemies as it is a logic of policing, of filtering, of risk management’ (Bigo 2014, 214). Others have cautioned that underestimating militarization is a mistake, and that in fact police-­military divides are eroding (Jones and Johnson 2016). Developments in border technology, particularly the deployment of drones, show that the military logic of tracking and targeting now also applies to managing migration, even if the purpose is not killing but ‘only’ deterrence and return (Chamayou 2012; Suchman et al. 2017). Either way, the border management optic which treats migrants not as people but as ‘flows’ to be halted or diverted by a range of different means has led to the humanitarian catastrophes at sea (Spijkerboer 2007) and to the emergence of ‘zones of social abandonment’ (Biehl 2005). In and beyond Europe we see a growing number of camps, ghettoes, detention facilities and other ‘ “local traps” where people are forced to live in places where they do not want to live and where they can be forgotten. In the process, some populations end up being less human than others’ (Bigo 2014, 221).

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Beyond Europe, beyond territory Since the 1990s, the abiding logic underpinning the reinforcement of the EU’s external borders has been the idea that the borderless internal ‘area of freedom, security and justice’ needs to compensate for its internal openness by establishing tight protection around its perimeter. Hence EU-­level rather than member state only investment in border management. Theorists of globalization interpreted this development as part of a larger pattern when ‘the liberalization of trade and finance at regional and global levels is being accompanied by a new set of political anxieties about borders, crime, illegal migration, and terrorism, along with political demands and initiatives to reassert the power of the border’ (Walters 2002, 561; see also Andreas and Snyder 2000). Many constituencies in Europe over the last two decades have indeed embraced and promoted the drive to strengthen and secure borders as a form of a counter-­globalizing move, even when they acknowledged, or even extolled, the economic benefits of some types of freedom of movement for selected groups, both within and across the EU’s external borders (Favell 2008). The hardening EU border regime has been in tension especially with local and regional economies in Europe’s borderlands, where petty trade, smuggling, seasonal labour migration and other forms of licit and illicit traffic provide a source of livelihood to vast populations (Jansen 2009). Securitization has complicated everyday lives of borderlands’ inhabitants whose ‘concerns over security stand in contrast to the wish to keep borders open and fluid to maintain social, cultural and emotional ties across the border’ (Pfoser 2015, 1698). However, beyond the dynamic tension between openness and closure, there are other ways to understand the Schengen area. The shorthand ‘Schengen’ refers to the EU territory without internal border checks established on the basis of the 1985 Schengen Agreement and today mostly corresponding to the ‘area of freedom, security and justice’ encircled by the external EU border. When examined from a longer historical perspective, Schengen can be understood as a new ‘culture of border control’ which has evolved, following a logic of selection and retention of specific features, from the older, Westphalian model where borders were the exclusive prerogative of nation-­states (Zaiotti 2011). Zaiotti argues that this development has ‘not been smooth or straightforward’ (ibid., 218). Since the original agreement between five members of the European Economic Community it has grown to encompass almost all member states. Its development has been encountering the resistance and criticism from various quarters and political angles. Nevertheless, ‘external borders are now de facto European and … [Schengen’s] impact does not stop at Europe’s confines’ (ibid., 219). Indeed, this brings us back to Balibar, who shows that some borders are not located at borders at all, that they are ubiquitous and can take the form of selective checks inside and beyond the bordered territory (Balibar 2002). Scholars have empirically documented these developments, variously conceptualizing them as the externalization, deterritorialization and disaggregation of borders (Sassen 2007; Mezzadra and Neilson 2013; Zaiotti 2016). Walters argues that Schengen is an event which allows us to denaturalize the connection between borders and nation-­states. Schengen highlights the historicity of borders, revealing the contingency of the configuration of sovereignty, territory, and population associated with the modern state. (2002, 576) If that is the case, Europeanized border management instantiates most fully the historical development whereby the idea and the apparatus of the border becomes separated from the actual 220

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geopolitical borderline. This does not entail that sovereignty wanes or weakens, but rather that it is being rearticulated and that it expands into new arenas (Jones and Johnson 2016). From this perspective, Europeanized border management can be seen as a toolkit of ‘pooled’ sovereignty, where the actors are not just sovereign states but also ‘their agents and their intermediaries’ like Frontex and other EU institutions (ibid., 195). What emerges is a set of complex bureaucratic and sociotechnological arrangements, like the massive interoperable EU databases or the Eurosur system discussed above. These arrangements allow states to surveil and police access to their territories at a distance and by proxy, or rather through a complicated and not always acknowledged hierarchy of proxies. In spite of their ostensibly equal status within the EU, Southern coastal EU states bear the burden of bordering on behalf of Northern Europe, and the EU as a whole relies on so-­called partnerships with third countries to ‘stem the flow’ and contain undesirables (HRW 2006). Heller and Pezzani (2016) draw attention to ‘the recourse to strategies of “externalization,” through which non-­EU states have been turned into migration gatekeepers on behalf of the EU’ (see also Zaiotti 2016). Frontex coordinates this cooperation to try to reduce the number of people arriving at the EU’s borders ‘by extending the use of EU “border management” policies, techniques and technologies to those countries’ (Jones 2017). As of early 2017, Frontex had 19 such agreements with states and entities including Turkey, Nigeria, Ukraine and the Commonwealth of Independent States (CIS). Eight other such agreements are to be signed by the end of 2019 with, among others, states that are seen as vital to containing Mediterranean migration, that is Mauritania, Morocco, Senegal and Tunisia (ibid.). These agreements and proposals for further cooperation have long attracted the scrutiny of human rights advocates, on the grounds that such outsourcing circumvents European states’ legal obligations to refugees (HRW 2003, 2006). In recent years, particularly controversial have been the initiatives to cooperate with Libya, due to the situation following the military intervention in 2011, by joint United States and European forces, which left the country in a protracted state of political instability. In these conditions irregular migrants face particular hardships and violence, especially abuse by armed groups and exploitation by human smugglers and dire conditions in violent and overcrowded detention facilities (HRW 2014; Sunderland 2016). European states and Frontex are accused of being complicit in maintaining this intolerable situation, due to their emphasis on deterrence and containment, which contributes to the persistent displacement of hundreds of thousands of people. With this track record, it would be very difficult to convince migrant advocates that ‘capacity building’ and border guard training in Libya is a legitimate venture by EU actors who are ostensibly committed to fundamental rights. Thus far Frontex has no formal agreement with Libya, mostly because as of 2017 the UN-­recognized government of Libya competes with two other authorities for control over the country. Nonetheless, independently of Frontex, under the Common Foreign and Security Policy, the EU operates the European Union Border Assistance Mission (EUBAM) to Libya. The Libyan EUBAM (EEAS n.d.), with its €17 million budget from August 2016 to August 2017, aims to accomplish in a new region that which in previous decades was accomplished in Ukraine and Moldova, namely, the setting up of a reliable migration buffer zone. In that sense, the Europeanization of border management extends beyond the EU frontier, as personnel from the border guard, customs and police services of the EU member states converge on strategically selected locations to intervene into and shape, with varying results, the practices of their non-­EU counterparts (Jeandesboz 2015).

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Conclusion This chapter has argued that border management in the EU has developed in historically specific ways. I have shown that by framing cross-­border movements as a problem of management, the EU has depoliticized the fundamentally exclusionary, and therefore antagonistic sphere of border control. EU institutions have sought to project an image of order and rationality in a contentious field where life and death are at stake. The member states have insisted on their autonomy in matters of border control, but at the same time they have benefited from and contributed to entrenching the EU strategy of IBM. The discourses and practices of IBM obscure and exacerbate border tensions. This effect is now reproduced along the EU’s external borders and beyond them, even as civil society and social movement actors question and resist current practice. It is the stance of this chapter that border management is Europeanized in the sense that it is underpinned by the circulation of specifically European border knowledge. European institutions underwrite its production and dissemination. European laws, policy papers, training materials, codes of conduct and a myriad of other documents are distributed among border professionals in Europe and beyond, inculcating a particular shared vocabulary alongside a set of concepts, practices and dispositions. The transformation has profound material consequences in the form of infrastructures and technologies that coordinate border policing across and beyond member states’ territories. This does not mean that what emerges is a unified service or a uniform type of a Europeanized border personnel. Europeanization is received differently in various national contexts and across different universes of border control, from those working at sea, to those guarding land borders or operating the databases of Eurosur. For this reason, to understand the Europeanization of border management we must pay attention to the ‘actual work routines and the specific professional “dispositions” ’ rather than Europeanizing discourse alone (Bigo 2014, 209). If we agree with Jones and Johnson that ‘although not a sovereign state … in the area of border security the EU increasingly acts like one’ (Jones and Johnson 2016, 191), it is important to have an accurate grasp of the tensions and dynamics of these actions. This chapter emphasized the attempts to reconcile repressive security measures with narrowly framed and ultimately largely vacuous fundamental rights protection measures. In spite of the existence of such measures, the exclusionary logic of border management overdetermines the outcomes. Those people who are unwanted in Europe must be pushed away, sometimes at the cost of life. Europeanized border management continues to proffer technical solutions to political problems.

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18 Risk Analysis as a Governance Tool in European Border Control Regine Paul

Introduction Since the foundation of the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union (Frontex) in 2004, a growing body of scholarly work has examined the role of Frontex risk analysis in European border control, one of the agency’s chief – and ever expanding – mandates. While Frontex is also involved in border control in a more obviously operational sense – from training border guards and standardizing technical equipment to coordinating joint operations in border control – risk analysis forms a less visible underbelly of external border management. The agency itself considers ‘risk analysis as a corner-­stone of the management of external borders … [and] a tool to contribute to greater management coherence’ across member states (Frontex, 2012, p. 7). Risk analysis is used, for example, by the European Commission to decide on operational priorities and the distribution of Community funding in the border control domain, but also to plan unannounced visits to inspect member states’ compliance with the Schengen Borders Code (Paul, 2017a). Migration control is a vital component of border control and related risk assessments in the European Union (EU), but it is flanked by other border-­crossing issues such as smuggling, terrorist crimes or trafficking. As Frontex risk analysis considers border risks jointly, this chapter also reflects on the uses of risk analysis in border control more widely, all while trying to draw out major implications for European migration governance specifically. Irrespective of its political prominence, risk analysis in the border control domain – understood as an actuarial calculation of the probability times the expected adverse effect of a societal harm – is not easily compared with the more technocratic sciences and technology domains from which it emerges. To complicate things further, it is set in a rather weakly integrated domain compared to food safety or medicinal safety where EU-­level agencies operate as dominant risk assessors and regulators. To evaluate and discuss the role of risk analysis in European migration governance, this chapter examines how scholars of European migration and border control have conceptualized the functions of Frontex risk analysis. In doing so, it also focuses on whether the relevant conceptualizations depict any specifically European features in the governance functions of risk analysis. In existing studies, Frontex risk analysis is discussed in two rather distinct – though not incompatible – contexts: (1) as a Foucauldian governance tool to normalize border and migration 227

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risks as scientifically assessable risks which contributes to the securitization of migration (e.g. Carrera et al., 2013; Carrera and den Hertog, 2015; Huysmans, 2000; Léonard, 2010), and, more rarely, (2) as a rationalization tool which helps institutionalize EU-­level responsibility for border control (e.g. Neal, 2009; Pollak and Slominski, 2009). A review of both strands of the literature forges the chapter’s overarching claim, namely: that the ‘EU-­ness’ of Frontex risk analysis lays not so much in its use as a securitizing assessment tool, but in its enabling functions for the non-­ mandated emergence of the Community as a genuine, and increasingly dominant, high-­risk regulator. I begin with brief overview of Frontex’ risk analysis mandate and its peculiar location within the wider field of EU risk regulation, based on documentary research on the agency and a review of scholarly work on EU risk regulation in the sciences and technology domains. I then discuss scholarly work on risk analysis and securitization, and on risk analysis and the institutionalization of EU-­level border control as the two main strands of research in this field. These sections draw on extensive secondary research as well as illustrations from the author’s own empirical analysis of a dozen primary documents on Frontex risk analysis and semi-­structured interviews, conducted in 2015, with seven risk analysts and strategists at the agency itself and in DG Migration and Home Affairs (Paul, 2017a). The conclusion illustrates how Frontex risk analysis speaks to notions of European exceptionalism in the governance of migration and borders and offers an outlook on future developments in this field of migration studies.

Frontex’ risk analysis mandate Frontex was set up in 2004 with the aim of ‘improving the integrated management of the external borders of the Member States of the European Union’ as part of the Schengen acquis (Council of the European Union, 2004, article 1.1). This mandate has included risk analysis at its core: ‘The Agency shall develop and apply a common integrated risk analysis model. It shall prepare both general and tailored risk analyses to be submitted to the Council and the Commission’ (ibid., article 4). Frontex provides the required analyses via a dedicated risk analysis unit (RAU), whose most relevant product is the annual risk analysis (ARA). In addition, there are quarterly reports by the Frontex risk analysis network (FRAN) as well as special risk analyses on the Western Balkans and the EU’s Eastern Borders. There are also ad-­hoc briefings – weekly if required by Frontex customers – on singular emerging risks, often in response to specific informational needs of the Commission or the Council (see Horii, 2016). Regarding migratory movements, Frontex typically publishes general statistical information on regular border crossings, detection of irregular border-­crossing attempts or irregular migrant residents, and the composition and modus operandi (e.g. irregular document fraud or abuse of legal entry) of migratory flows. Its risk analysis reports also contain information on chief institutional and policy changes in EU member states and reflections on how these may influence irregular crossings. They typically depict the major border risks followed by suggestions for mitigation. For example, the ARA for the Western Balkans in 2014 identified increasing irregular crossings of the green border between Montenegro and Albania with large-­scale secondary movements into the EU. To mitigate the risk of irregular entries into the EU via Montenegro, the report recommended the increased use of motion sensor cameras at this border section (Frontex, 2014, p. 27). The strong focus on risk analyses predates Frontex: the Seville European Council in 2002 had already stressed the importance of developing a so-­called ‘common integrated risk analysis model’ (CIRAM) as a basis for establishing further cooperation in border management, joint operations, and more harmonized training for border guards. Consequently, in 2003, the 228

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Council promoted the establishment of a Risk Analysis Centre (RAC) in Helsinki. Both CIRAM and the RAC have been integrated and further institutionalized under the umbrella of Frontex. Importantly, the CIRAM is not only applied within the EU and Schengen Associate Countries, but also features prominently in the EU’s cooperation with European neighbours. For example, the Risk Analysis Network for the Western Balkans (including Albania, Bosnia and Herzegovina, Montenegro and Serbia) uses the same methodology as does the RAU (cf. Frontex, 2014). Risk analysis is not just one of the agency’s functions among many, but has been described as the ‘inner core of the methodology of Frontex’ by its first Executive Director, Illka Laitinen (House of Lords, 2008, p. 25). The agency itself considers risk analysis as ‘the starting point for all Frontex activities, from joint operations through training to research studies’ (Frontex webpage, accessed 18 June 2015). An agency representative even argues that ‘all of Frontex should be risk-­based; everything the agency does should be justified by risk analysis’ (interviewed 3 February 2015, Warsaw). How does this relevance of risk analysis in self-­descriptions play out in practice? Frontex risk analysis products usually contain recommendations for migration control operations (e.g. an introduction of motion sensor cameras or deployment of additional staff at particular border sections) or changes of legislation to facilitate control (e.g. authorizing the exchange of digital fingerprints) (Frontex, 2014). Moreover, Frontex risk analysis serves as the litmus test for the necessity of proposed Community-­level border control operations and funding decisions, including, for example, the allocation of resources from the Internal Security Fund (i.e. a Community funding scheme to promote, inter alia, the management of external borders). In this case, member state funding applications are reviewed and selected by the Commission based on evidence from Frontex risk analysis and Eurosur impact level assessment (which is itself highly dependent on Frontex risk analysis) (Paul, 2017a). Risk analysis must further be used to justify any joint operation or rapid intervention at the EU’s external borders. Member states are equally required to take the ARA into account when devising their own border control priorities. They are assessed against Frontex risk analysis within the Schengen evaluation mechanism, a recently reinforced inspection system to ensure member state compliance with the Schengen Borders Code. Indeed, the Commission relies on the ARA to schedule its inspections and set regional and thematic priorities for the evaluation period. Unannounced inspections must be based on risk analysis and Frontex can recommend visits of high-­risk sites (Council of the European Union, 2013, article 7; cf. details in Paul, 2017a). The importance attributed to Frontex risk analysis is also reflected in the agency’s budget: while it decreased overall from 58.9 Mio € in 2012 to just over 55 Mio € in 2014, funds for risk analysis more than doubled from 2.45 Mio € in 2012 to more than 6 Mio € in 2014 (joint operations were cut down in that time period, by contrast). Under the impression of the refugee crisis the agency’s budget skyrocketed to 254 Mio € in 2016 and funds for risk analysis more than doubled again, to 13.68 Mio € (Frontex webpage, accessed 11 December 2016). Though largely desk-­based and comparatively inexpensive, risk analysis has constantly been the second largest item in the agency’s budget after joint operations, only being overtaken by the new budgetary item ‘return support’ in 2016 in response to the refugee movements. Scholars conclude that risk analysis ‘forms the basis of its entire range of activities’ for the European border agency (Pollak and Slominski, 2009, p. 911), which plays a role that is ‘equally important as border checks and surveillance’ (Horii, 2016, p. 246).

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The peculiarities of Frontex risk analysis in the EU risk regulation field In general, risk analysis is based on a mathematical operation that multiplies the likelihood and expected impact of adverse outcomes to determine risk levels. Actuarial calculations count as a rational foundation for regulatory decisions (e.g. whether to ban a substance in production or at what level to set exposure thresholds) when faced with uncertainty about whether a risk materializes as an actual harm. Rather than tossing a coin and risk under- or over-­regulation, risk analysis is believed to produce more efficient and effective regulation (OECD, 2010). Frontex’ risk analysis mandate is marked by two peculiarities when compared to similar tasks of EU agencies in other risk regulation domains. It is important to spell these out upfront, because they set the scene for the scholarly debate on the role of risk analysis in European border control that we will discuss in the subsequent two sections. First, the scientific foundations for risk assessment in the migration domain are rather weak compared to the health and safety domains traditionally using risk analysis. This has raised the question of whether and how risk analysis ‘securitizes’ migration, rather than simply assesses it. Second, the high importance attributed to risk analysis cannot belie the EU’s weak mandate for border control and the comparatively weak agencification of the domain. This led scholars to consider whether and how risk analysis itself may serve as a remedy that helps institutionalize EU-­level border control. Addressing the first peculiarity – the weak scientific foundations for risk assessment – Frontex risk analysis has to be contextualized in the EU’s wider engagement as a risk regulator. The EU has been very active in risk analysis and risk management in domains such as consumer protection, environmental protection or work safety and has created several high-­level agencies to assess and regulate risks. The first official introduction of a distinct risk analysis methodology came with the 1997 Communication on Consumer Health and Food Safety, sparked off by the BSE crisis and resulting in the creation of the European Food Safety Agency (Delogu, 2016; Vos, 2000)�������������������������������������������������������������������������������������� . Since then, the EU’s involvement in risk regulation, including, importantly, assessment, is usually justified with the trans-­border character of risks (such as food contamination or radiation, arguably beyond the scope of individual member states) and the need to facilitate free movement on the common market while also ensuring high safety levels for citizens (see ��������� Szajkowska, 2009, on the case of food safety). At first sight, migration seems to fit in well with the usual narrative of required EU risk regulation: it is a border-­crossing issue, exposes the inability of individual states to enforce borders fully in a subsidiary manner, but also touches upon the EU’s desire to uphold a permissive regime of free movement within the (relatively) border-­free Schengen Area all while controlling ‘unwanted’ movements. Beyond such generic features which seem to justify EU involvement, migration is discussed as a rather non-­scientific risk: ‘[u]sing the traditional natural sciences as a benchmark, Frontex’ field of activity cannot be described as highly technical or scientific … there is very little established science within the field of border control’ (Ekelund, 2014, p. 111). This is because neither the usually examined dose-­response relationships between contaminants and extrapolated reactions in human organisms (e.g. in the establishment of the carcinogenicity of a pesticide), nor assessments of probabilities and impact of adverse outcomes (e.g. in the EU’s flood risk mapping), can easily be applied in the migration case. Normative judgements can never be escaped in risk assessment and controversies certainly also surface in highly scientificized fields (cf., Shrader-­Frechette, 1990; Stone, 2012), as the contemporary debate about the weed controlling pesticide Glyphosate shows. In the migration case, however, controversy reaches much deeper than that: whether irregular border crossings can and should be equated, by use of similar risk assessment methodologies, to asbestos exposure at the work place or pesticide 230

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residues in fruits is a highly political question of itself. In addition, any assessment is riddled with especially grave methodological problems of prediction both of the probabilities of irregular border crossings (as we deal with moving and highly adaptable ‘targets’ as nicely reflected in Frontex’ terminology of ‘modus operandi’) and their adverse impact (as treating the effects of migratory movements as adversity is itself highly controversial compared to work-­related cancer deaths or food-­borne sicknesses). The second peculiarity addresses the weak integration of the border control domain and the weak agencification of Frontex, especially when compared to highly integrated risk regulation with powerful agencies in food safety, chemicals safety or pharmaceutical safety. In the former case, for instance, risk analysis is an EU-­level coordinated process which is coupled with highly integrated standard-­setting procedures and a far-­reaching harmonization of enforcement principles (Borraz et al., 2016). Certainly, Schengen countries have intensified coordination on border control operations since the Schengen Convention in 1985. They systematically exchange and pool all relevant information, with Frontex acting as a crucial information hub, and the Schengen Borders Code even lays down common rules for local border guards’ control practices (cf. Mungianu, 2013). Despite such harmonization progress, the enforcement and implementation of border controls remain ‘a matter of member states and their administrative authorities’, with the role of the EU being limited to ‘coordinat[ing] their responses’ ������������������������������������������� (Boswell and Geddes, 2011, p. 145)��������� . As contemporary reactions to increased refugee movements from the Middle East indicate (e.g. ­reinstatement of internal controls or fence-­building), border control is a highly politicized policy domain in which nation-­states are unlikely to cease their sovereignty. Not surprisingly then, Frontex’ mandate for managing member state cooperation on external border control remains embedded in a governance structure pertained by ‘features of intergovernmental cooperation’�������������������������������������������������������������������� (Mungianu, 2013, p. 361; cf. Ekelund, 2014)������������������������ . With the agency’s management board entailing one representative per EU country plus only two delegates from the Commission, Frontex’s activities are closely checked against member states’ interests and their sovereignty concerns. Its peculiar half-­independent nature, somewhat stuck between a loose network and a fully-­fledged agency (Wolff and Schout, 2013), makes Frontex a rather weak agency compared to the European Agencies for Food Standards, Chemicals or Medicines (����� European Food Safety Authority (EFSA), European Chemicals Agency (ECHA) and European Medicines Agency (EMA)). Unlike those, Frontex is not a regulatory agency in the strict sense of the term as its powers are formally restricted to information gathering, evidence exchange, and the coordination of operations and interventions agreed upon by member states.

Risk analysis and the securitization of migration Most scholarly work about the securitizing impetus of Frontex risk analysis draws, more or less explicitly, on the peculiar non-­scientific character of such analysis and reflects critically upon its regulatory uses and goals. Such approaches are set in a larger field of research – critical security studies – which has addressed the ways in which European migration and border control policies ‘facilitate the creation of migration as a destabilizing or dangerous challenge to west European societies’ (Huysmans, 2000, p. 753) and defines them as Foucauldian securitizing discourses. This particular angle exposes that, while ‘migration risks’ remain notoriously contentious and hard to assess, what matters is that their discursive construction as assessable and manageable adverse events, which readily lend themselves to risk analysis techniques, contributes to the securitization of migration. By making the CIRAM methodology an integral part of the EU’s cooperation with neighbouring countries and regions, Frontex exports not just its definitions of 231

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risks and methods of assessment but also any securitizing recommendations in migration control far beyond the confines of the EU. The securitization critique is usually underpinned by an epistemological problematization of the notion of risk itself: a hegemonic rationality project which seeks to ‘secur[e] uncertain futures’ (Amoore, 2013, p. 55; on the notion of border risks more generally speaking) based on a seemingly ‘neutral’ and ‘objective’ calculation of probabilities and impacts of ‘adverse’ events and suggests that decisions can be ‘easy, automated, or preprogrammed’ if only we get our risk analyses right. This reflects a wider bifurcation in risk studies between (a) scholars emphasizing the problem-­ solving capacities of risk analysis and risk-­based decision-­making and demanding more and better risk information including risk perceptions of lay people and stakeholders, and (b) critics of risk analysis who deem it mainly as a governance tool which disguises highly normative judgements about harms, benefits and costs related to risks (cf. Paul, 2017b). The argument in the latter camp would be that, through its very application to the case of migration, risk analysis normalizes migration-­related border risks as scientifically assessable risks, discursively equates them to the health threats usually targeted with risk analysis in food safety and related domains, and, eventually, legitimizes pre-­emption, prevention and enforcement activities which are ‘usually reserved for emergencies’ (Boswell, 2007, p.  589). Similar dynamics have been observed in relation to the construction of terrorism risks and their regulatory pre-­emption (Amoore, 2013; Aradau and van Munster, 2008). While ‘security discourses and technologies penetrated the Europeanization of migration policy’ at least since the 1980s (Huysmans, 2000, p. 756), the contemporary centrality of Frontex risk analysis as a decision aid for the Commission, member states and Frontex itself can be interpreted as a new epistemological foundation of older securitization discourses. Extended surveillance, anticipatory discrimination based on algorithms, and enforcement operations on the Mediterranean count as examples of risk technologies that respond to states of emergency in a routinized manner. Matthias Leese, for example, discusses the use of risk analysis in the programming of digital borders (e.g. differentiated visa controls based on algorithms) as an example of securitization in breach of anti-­discrimination rights: In security governance, the future must necessarily be rendered actionable by folding it back into the present, but the technique of folding is undergoing change as its tools are reassembled and recombined. New forms of algorithmic risk assessment remove the mechanisms of security governance from the eye, leaving behind a new series of hyper-­rationalized discrimination issues that pose major hurdles for the legal tools of traditional anti-­discriminatory safeguards. (2014, p. 506) Others have pointed to risk analysis’ uneasy relationship with liability and accountability for decision-­making at the border, for example in the infamous pushback operations (Carrera et al., 2013; Carrera and den Hertog, 2015). In this context, the application of risk analysis in actual border enforcement would ‘foster processes of insecuritisation of “migration”, particularly of irregular migration, whereby economic and undocumented migrants as well as asylum seekers are constructed as “risk” or “threat” for the Union and Member States’, all while limiting their options for appeal (Carrera et al., 2013, p. 349). Risk analysis does not just securitize migration from the viewpoint of the EU; rather, it insecuritizes the migrations and livelihoods of those deemed ‘risky’. Such insecuritization is the result of a detachment of decisions from questions of individual rights, whose enforcement becomes increasingly difficult vis-­à-vis the disguise of the normative foundations for risk assessment and the blurring of legal and political accountabilities for risk-­based decision-­making at the border. 232

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We cannot, and do not wish to, settle the query of whether securitization (and de-­ politicization) via risk analysis is an intentionally ‘disguised’ goal of Frontex, the Commission, or the Council or whether agency strategists and border control actors truly believe that scientific risk analysis is both applicable and desirable in the migration domain. It seems clear, however, that the agency itself invests highly in presenting its role in a scientific and politically impartial fashion. Frontex describes its mission as a neutral provider of intelligence: ‘to gather situational pictures based on intelligence and by analyzing the situation to assess changes, risks and threats with possible impact on the security of the EU’s external borders’ (Frontex, 2009b, p. 29, cited in Léonard, 2010, p. 242).�������������������������������������������������������� As stated by an agency spokesperson: ‘����������������� We create an evidence base for decision-­making that takes place elsewhere, in the member states or with the Commission.… But we do not do policies ourselves’ (Frontex public relations officer, interviewed 2 February 2015, Warsaw). Overall, securitization studies warn us not to treat the agency’s self-­proclaimed interest in offering depoliticized intelligence based on risk analysis at face value. Indeed, Léonard (2010, p. 242) argues that the claim of ‘intelligence’ (over neutral alternatives such as information or data) is itself revealing of the securitizing impetus of risk analysis, as it rehearses military jargon used in national security policies. When interpreted from a securitization angle, Frontex risk analysis emerges as a Foucauldian governance tool (i.e. a technique to govern) which normalizes migration as a risk and connects to this the requirement of similarly ‘programmed’ regulatory answers as in the case of pesticide residues in our lunches – ignoring both the non-­scientific character of migration risk analyses and the fact that, unlike pesticides, migrants travel with a set of formally protected human rights and can be ‘banned’ less straightforwardly than the use of a weed control substance on European fields.

Risk analysis and the institutionalization of European border control Several scholars have argued that, rather than merely constituting a securitization of migration, Frontex risk analysis must also be interpreted as an attempt to (a) legitimize Frontex as an organization and to (b) institutionalize border controls as a genuine Community task. We consider both points in turn. Drawing on neo-­institutionalist organizational sociology, Boswell (2007, p.  604) has highlighted that the agency’s goals ‘may be just as much geared to responding to internal requirements – for example legitimizing decisions or reducing uncertainty within the organization – as they are concerned to respond to perceived pressure from the environment’. This suggests that risk analysis, rather than merely targeting the ‘societal risks’ associated with migration, as assumed in the securitization debate, may respond to ‘institutional risks’ – specifically, legitimacy and reputational risks hinging on organizational performance, accountability and the potential of organizational failure (Rothstein et al., 2006, pp. 99–103). Scholarly writing on the rise of so-­called risk-­based regulation has tracked the emergence of risk as a heuristic for (rather than object of ) regulation in attempts to manage the ‘institutional risks of risk regulation … [as] an attractive concept for rationalizing the practical limits of what regulation can achieve and rendering given degrees of regulatory failure acceptable’ (Rothstein et al., 2006, p. 99f, 2013; cf. Rothstein, 2006; Paul, 2017b). Frontex faces very particular institutional risks given its weak agencification (with strong member state influence) and the comparatively low degree of European integration in the domain: the risk of being held accountable for regulatory failures it could not influence itself and which member states (or the Commission) deem as emergencies. Neal shows, for instance, that we can conceive of risk analysis as the agency’s chief remedy for responding to member state pressures to react to what they perceive as states of emergency: 233

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while Member States speak of ‘urgency’, for the most part FRONTEX speaks ‘risk’ as a series of quiet, professional, technical practice … ‘security’ … sits alongside the (perhaps deliberately) less controversial discourse of regulation, best practice, training, co-­ordination and management. (2009, p. 351) One important function of risk analysis when countering institutional risks, drawing on the literature on risk-­based regulation, is that it enables procedurally efficient regulation and enforcement (though not necessarily optimal outcomes) by setting priorities in high-­risk areas while accepting some adverse outcomes in low-­risk areas (Majone, 2010). This is clearly rehearsed in the agency’s self-­legitimization: ‘If your budget is limited and capacities for border control are limited, while flows remain the same or grow or become more complex, you have to know where exactly to provide support’ (Frontex risk analyst, interviewed 3 February 2015, Warsaw). Indeed, officials readily admit that ‘there are areas in Northern Lapland which are not really patrolled at all because the terrain is difficult for crossings and there is two meters of snow half of the year’ (DG Home Affairs policy analyst, interview 25 March 2015, Brussels). Illustrative examples of how Frontex risk analysis is used to rationalize and channel member states’ emergency claims are the Eurosur impact level assessment and the related allocation of means from the Internal Security Fund (cf. Paul, 2017a). In the context of the information exchange system Eurosur, Frontex regularly risk assesses more than 200 external land and sea border sections in the Schengen Area according to their level of irregular crossings and cross-­ border crimes risk (‘impact level’). Risk analysis results in a typical traffic light model, distinguishing between unacceptable (red), tolerable (amber) and acceptable (green) risk levels for each border section, based on a detailed qualitative catalogue of indicators and scenarios. The Commission then proposes an escalating set of interventions proportional to the various risk levels: • • •

for low-­risk sections, routine local border checks are put in place; for medium-­level risk sections, national priority setting is required to aid local border guards; for high-­risk sections, the eligibility for Frontex joint operations and EU-­level financial support is acknowledged (for example via the Internal Security Fund).

While in general, ‘[m]easures to be taken to reduce these [risks] remain the responsibility of individual member states … in the case of ‘high impact level’ [i.e. high risk] border areas, member states may request operational assistance from Frontex in the form of a joint operation or rapid intervention’ (Frontex website, accessed 17 July 2016). The risk analysis underpinning Eurosur impact level assessment thus both justifies the conditions under which member states can access assistance from Frontex joint operations and limits EU-­level support to high-­risk situations only. In the case of the Internal Security Fund, Frontex is to provide evidence on submitted cases of ‘emergency’ based on its risk analysis and the Eurosur impact level assessment. Commission officials communicate clearly the limits of EU-­ level funding: following the EU’s subsidiarity principle, member states have to comply with the Schengen acquis by drawing on their own national resources and by devising their own enforcement strategies; ‘they cannot require the EU to assist in routine spending’ (DG Home Affairs policy officer, interviewed 25 March 2015, Brussels). As these cases illustrate, Frontex and the Commission risk-­manage their own position in the multi-­level migration governance in Europe by rationalizing Community-­level financial and operational support based on a risk-­based differentiation of legitimate versus illegitimate member state emergency claims. 234

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Within this generally self-­limiting impetus of risk analysis – a means to counter emergency support claims by member states and rationalize the limits of Frontex’ and the Commission’s responsibility – we are not to overlook how risk analysis simultaneously serves as a tool to institutionalize an increasingly powerful Community role in cases labelled as high risks. By linking funding, enforcement and operational decisions directly to the outcome of risk analysis and by limiting interventions to the red spots of the traffic light model, the agency and the Commission stylize themselves as genuine high-­risk regulators – despite the officially weak integration and strong inter-­governmentalism of the domain. In the Schengen evaluation mechanism, for example, a strict focus on risk analysis as informational basis de-­politicizes highly sensitive inspection decisions and enforcement recommendations. The use of risk analysis and impact level assessment (which importantly includes indicators on countries’ preparedness to control even high-­risk border spots) renders member states’ potential non-­compliance with the acquis visible and comparable in a seemingly neutral manner (cf. Paul, 2017a). Risk analysis thus increases the enforceability of border control standards at Community level without openly questioning member state sovereignty, by allowing the Commission to ‘achieve improvements towards a more harmonized and effective border management without naming and shaming’ (Frontex risk analyst, interview 3 February 2015, Warsaw).

Conclusion Migration scholars have captured the (growing) relevance of Frontex risk analysis in the governance of borders and migration in Europe in two distinct ways. On the one hand, risk analysis is interpreted as a Foucauldian governance tool that constructs and neutralizes migration (and other border) risks and legitimizes securitizing interventions based on these risk scenarios. On the other hand, risk analysis is perceived as an intra-­institutional rationalization tool which (a) limits the responsibility of the Community – shifting any blame for failure to deal with ‘normal’ and residual border risks to member states – but which equally (b) institutionalizes a leading role for Community-­level interventions when facing the high-­risk scenarios depicted in Frontex risk analyses. Overall the literature depicts Frontex risk analysis as a multifunctional governance tool that ‘seeks to manage and regulate both migration and the practices of Member State border security apparatuses’ (Neal, 2009, p. 353) but, importantly from an organizational perspective, equally manages member state demands on the Community as well as enacting the Union as genuine high-­risk regulator. Risk analysis thus seems to cater for the management of both external and internal pressures faced by Frontex and the Commission: the societal risks perceived in the context of irregular border crossings and cross-­border crimes, and the specific institutional risks emerging from member state emergency claims. One key query addressed by the handbook considers the degree of European exceptionalism in migration governance. In the context of this chapter, I suggest that the specific ‘EU-­ness’ of risk analysis in the border domain lays not so much in its use as a securitizing assessment tool. Certainly, securitization by risk analysis is a widespread phenomenon which is well documented in other domains and also non-­EU contexts (e.g. on young offenders: Gray, 2005; on pregnant women’s food choices: Mansfield, 2012; on counter-­terrorism: Mythen et al., 2013; on mental health governance: Szmukler and Rose, 2013). Rather, I propose that European exceptionalism is embodied in the enabling functions of risk analysis for a non-­mandated institutionalization of the Community as primarily responsible for high border risks (risks defined as such by Frontex risk analysts themselves, of course). In other words: we learn a lot about the Union itself when examining its uses of Frontex risk analysis to clarify and enact its own risk regulation role. Frontex risk analysis must hence be understood as intrinsically tied-­up with the European ­integration project and the specific visions of such integration which Community-­level actors 235

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– here the Commission and Frontex – seek to enact. This finding speaks well to insights on the governance of migration-­related expertise in the EU, which depict knowledge generation as always innately intertwined with the generation of ‘politically specific and limited … versions of ‘the’ EU to be governed’ (Carmel, 2016, p. 1). The increasing importance of risk analysis as a magic bullet in solving coordination and subsidiarity problems in the multi-­level governance setting of the EU has significant knock-­on effects for migration governance also in wider Europe and in neighbouring countries in North Africa and the Middle East. By making the CIRAM part of coordination agreements (for example, as was the case with the risk analysis network in the Western Balkans), the EU, via Frontex, shapes the ways in which migration risks are understood, measured and eventually also responded to beyond the territorial confines of the Union. By way of an outlook on future developments, the prominent role of risk analysis in migration and border control – and its particular use as an institutionalization tool for Community-­ level responsibility regarding the management of high border risks in the EU and wider Europe – provokes reflections on the future of European integration. First, the prominence of risk analysis is unlikely to evaporate: Frontex Executive Director, Fabrice Leggeri, announced that the substantial increases in the agency’s budget as a response to the refugee crisis will be distributed with a risk rationale in mind: ‘Risk analysis … is an essential tool for deciding how these new resources should be allocated’ (Frontex, 2016, p. 5). Second, given the current political obstacles to deeper integration, we are likely to observe more instances of ‘regulation by [risk] information’ (Majone, 1997) where European integration advances more silently through informal procedures which can circumvent a formally weak Community mandate. Third, by way of exporting the Frontex risk analysis model to cooperating countries, the EU expands its influence over both risk assessment and risk management practices beyond any formal mandate. If it is true that ‘the most important resources of Frontex are not its legal powers or financial means but information and knowledge … as a basis for cooperation, coordination and persuasion’ (Pollak and Slominski, 2009, p. 908), then the specific part played by risk analysis in European migration governance and its further integration, as well as in shaping the EU’s relationship with neighbouring countries, deserve more systematic scholarly attention.

Acknowledgements Research for this chapter was supported by a grant awarded through the Open Research Area Programme for the Social Sciences, jointly funded by the Deutsche Forschungsgemeinschaft (DFG, Germany, grant number: HU-­1791/3–1), the Agence National de la Recherche (ANR, France), the Economic and Social Research Council (ESRC, United Kingdom) and the Nederlands Organisatie voor Wetenschappelijk Onderzoek (NWO, Netherlands) (http://tinyurl. com/howsafe-project). I thank Christina Boswell, Emma Carmel, Michael Huber, Hester Kan, Christof Roos and Lyubov Zhyznomirska for feedback on draft versions.

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19 Security, industry and migration in European border control Martin Lemberg-­Pedersen

Introduction This chapter examines the development and scholarly literature concerning the politics of migration in Europe by paying special attention to a complex of dynamics, practices, policies and challenges that characterize the European borders and movement across them. These are: the securitization and militarization of refugee and asylum policies and the implications this has for humanitarian action; the externalization of border control to private actors or non-­European states and the required infrastructure for such control; and the consequences of the increasing involvement of the arms and security industry in European border control policy-­making. While all of these dynamics are also observable elsewhere in world, the chapter argues that European politics have followed an exceptional trajectory, which now presents citizens, activists, scholars and politicians with a specific set of challenges. In particular, contemporary European migration politics are characterized by dynamics of both heterogeneity and harmonization born out of internal power asymmetries and struggles. This has given rise to the European externalization of migration governance beyond its own territory, whereby the control of mobility is being manifested in regions linked to Europe through the specific historicity of imperial colonialism. Taken together, this exceptionalism poses uncomfortable questions concerning the European self-­understanding as having shared identity and goals, as well as being guided by the moral affirmation of fundamental rights. Over the last twenty years, several European countries began to frame the migration of asylum seekers as a security issue. Over the same period, the external European borders have become sites of a historic militarization, a process that targets displaced people in dire humanitarian circumstances. It is, though, far too easy to understand European initiatives, such as Operation Sophia, the deployment of Greek, Turkish and North Atlantic Treaty Organization (NATO) vessels along the Aegean route towards Europe, or indeed the ripple effect of new fences and border controls spread across and externalized beyond Europe as something new and unprecedented. This chapter details why this is not the case by examining European border control as a socio-­geographic and economic space. It provides an overview of important questions posed about the borders’ underlying systemic logic (hereunder securitization), the assumption of a technological potential for pervasive control as well as the many different public and private actors and interests, which intersect to create the specificities of European border politics. 239

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The chapter investigates how the introduction of a host of new security technologies and the very functionality of the European borders, have created certain lock-­in effects further accelerating the restrictive border militarization. While the focus of the chapter is on border security, we need to understand this topic against the backdrop of a thirty-­year-long European failure to establish a system of relocation and resettlement of refugees between its member states. The political choice to accelerate border militarization is thus also a choice to abandon alternative uses of border technologies, such as safe flight-­channels out of conflict zones, protection-­ sensitive entry-­points configured to identifying vulnerable asylum seekers, or the swift exchange of information between national asylum systems. This leads to a critical appraisal of the relationship between technologies of border security and Europe’s ‘fight against illegal migration’.

Securitizing and externalizing migration control European border research in the 1990s aligned itself with a global scholarship recognizing that globalization created both fundamental challenges to the sovereign nation-­state and novel reconfigurations of border governance. While some narratives heralded the idea of a ‘borderless world’, others pointed to the existence of a contradiction between the neoliberal ideal of border­free economic spaces and the transversal and deterritorialized border controls implemented by states and the European Union (EU). European integration processes like the Dublin Convention and the Schengen space seem to have yielded patterns not of free movement, but rather have created hyper-­mobility for some and submobility for others (Massey, 1993, p. 61; Sassen, 1996, pp. 92–93; cf. Pickering, 2004). By the late 1990s, European human geographers moved away from the classical understanding of borders as territorial dividing lines containing distinct populations, and instead conceptualized them through a ‘processual shift’ where ‘bordering’ denotes ongoing socially regulative functions linked to trajectories of racism and power (van Houtum and van Naerssen, 2002). The assumptions of sovereign states clearly demarcated by borders have also been further problematized by emerging geo- and biopolitical analyses, which examined ‘how’, ‘why’ and ‘where’ borders are manifested. This gave rise to perspectives examining how ‘mobile borders’, decoupled from national territories, can rely on complex ‘microphysics of power’. In this period, European border studies evolved into an inter- and multidisciplinary field, fusing insights from sociology, political science, critical human geography and anthropology, thus opening up the border as a socio-­geographic, discursive and economic object of inquiry with intersecting actors, networks and interests. In the late 1990s, the Copenhagen School of security studies developed a conceptual framework that gained popularity among some scholars studying borders. It viewed the security dimension of migration politics through analyses of illocutionary speech acts. Here, migration is understood as securitized through a sequence of discursive steps, namely when certain actors successfully persuade audiences that migration poses an urgent and existential threat to them, their societies or cultures (Buzan et al., 1998). According to this view, securitization of migration is successful when it becomes removed from the political sphere and situated into the sphere of security concerns. The Copenhagen School thus perceives the link between security technology and migration as intersubjective and socially constructed, and as discursive processes leading to the technological reconfiguration of border control. They argue that this reconfiguration, which is characterized by exceptionalism and securitization, has the effect of depoliticizing the issue of border control. Critical of this development, the Copenhagen School instead underscores the need for desecuritizing border politics, reclaiming migration and borders as a question of politics and not of exceptional security. Accordingly, some scholars have made use of this 240

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securitization analysis to examine issues like cross-­border terrorism, trafficking and smuggling predominantly in Western contexts, like the US–Mexico and South African–Zimbabwean borders (cf. Ackleson, 2005; Hammerstad, 2012). However, the Copenhagen School is not very helpful when it comes to understanding many of the European border security processes. First, the framework relies on a ‘Westphalian straightjacket’ producing Westernized descriptions of security of limited use to non-­European contexts (Wilkinson, 2007). Second, its discursive approach fails to theorize how discourses are embedded in particular social practices, sidestepping crucial questions about the origins and relations between border discourses and technologies (Huysmans, 2006, p. 91). Third, the conceptual model seems indebted to the Schmittian grammar to the extent that its understanding of security inadvertently reproduces the problematic realpolitik assumption that national governments can decide on states of exception through sovereign speech acts. Yet, it is not evident that the main vehicle behind border securitization is located at the discursive, executive level. By contrast, the Paris School of security studies developed the more nuanced view that technocratic and bureaucratic day-­to-day practices, like population profiling, risk assessment and statistical calculation, communicated within specialist circles, yield bigger influence on border securitization processes than political elites’ capacity to speak security to large audiences (Léonard, 2010). This brings to the foreground the ‘specific habitius of the “security professional” with its ethos of secrecy and concern for the management of fear and unease’ (Bigo, 2002, pp. 65–66). Such an understanding of border securitization trains our gaze at the emergent class of security professionals’ successful recoding of borders from mobility channels of labour, trade and protection, to control nodes countering threats. European research into bureaucratic bordering processes has produced important new clusters of literature. One of these concerns the externalization of European border control, understood as processes whereby nation-­states, bilateral or supranational actors complement their policies to control migration across their territorial borders with initiatives aimed at realizing such control beyond their territories (Boswell, 2003; Bialasiewicz, 2012; Lemberg-­Pedersen, 2012). The year-­long European conditioning of Greek border spaces, or the EU’s outsourcing of preemptive interception of migrants en route to Europe to Libyan, Moroccan or Turkish authorities provide examples of such externalization. As a result, European borders have increasingly been viewed as a transnational, multi-­local and mobile systems. Walters (2004, p. 678) has suggested that their function accords to a fusion of geostrategies, dominated by ‘the networked border’ diffusing, decentring and de-­territorializing previously fixed nodes of control. This has been followed by work trying to conceptualize these dynamic socio-­political processes as various forms and patterns of assemblages (cf. Mezzadra and Neilson, 2013; Sassen, 2008). The extra-­territorial closure of legal migration routes is correlated with a steep increase in migrant fatalities at Europe’s borders (with estimates rising from around 2,000 between 1993 and 2001, to over 31,000 between 2002–2017) (United Against Racism, 2017). The similarly massive growth of migration smuggling indicates that the perception of a contradiction between free trade and border control is only surface-­deep: controls do not prevent migration but rather create profit incentives for irregular migration actors and the opening of new and more dangerous routes. Thus, one outcome of European naval operations launched in the Mediterranean in 2015 in order to seize and destroy migrant-­carrying vessels has been that many smuggler-­ networks have switched to cheaper, but unseaworthy, rubber boats. By one estimate, the migration smuggling industry was worth €16 billion globally between 2000 and 2015 (Migrant Files website). Moreover, the smuggling industry facilitates a vast pool of irregular and precarious labour useful for the European construction, service and agricultural sectors (Cohen, 1987; Anderson, 2010). Recent work on global, local and European dynamics of human smuggling 241

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has therefore problematized political assumptions about neatly separated and normatively unambiguous categories of refugees, economic migrants, smugglers and border guards. This calls for caution when assessing political ambitions of enforcing total control over insiders and outsiders (cf. Maher, 2018; Zhang et al., 2018). The functionality of the European border control system relies on an infrastructure constantly reproducing the circulation of financial, material, corporeal and virtual flows between its different nodes, justified as addressing the phenomenon of forced migration. However, recent scholarship has pointed out that the European border control infrastructure is also itself creating forms of forced migration, a phenomenon that can be conceptualized as ‘border-­induced displacement’ (Lemberg-­Pedersen, 2017). Exploring this phenomenon unsettles deep-­seated assumptions about the relationship between European states and the production of displacement. While events like natural disasters, economic collapses, conflict or resettlement have traditionally been seen as drivers of forced migration, the transnational functionality of European border control produces a different kind of displacement – namely, state-­sanctioned practices where already-­displaced people are intercepted, detained or deported across territories and between states reluctant to assume the responsibility of assessing their asylum claims. Border-­ induced displacement thus unfolds at the intersection between regular and irregular nodes of migration and can reinforce existing hierarchies of exploitation and exclusion. The EU’s Frontex Agency also tacitly acknowledges border-­induced displacement, for instance, when it referred to state ‘facilitated transportation corridors’ as crucial for the creation of the so-­called Balkan route during the 2015 refugee influx to Europe (Frontex, 2016, p. 5).

Borders as sites of humanitarian policing Another emerging research focus is the fusion of humanitarian and security-­driven responses to displacement. Building on a Foucauldian notion of governmentality and work on the US– Mexico border, Walters (2011) has coined the term ‘humanitarian borders’, denoting sites of inequality and displacement between the Global North and South, which are operationalized as a management tool to handle political crises (cf. Ticktin, 2005; Doty, 2006; Fassin, 2011). Bigo (2002, p. 79) also suggests that ‘discourses concerning human rights of asylum seekers are de facto part of a securitization process if they play the game of differentiating between genuine asylum seekers and illegal migrants’. By helping the first and condemning the second, European states effectively invoke humanitarian reasons to justify border control. This political game of humanitarian differentiation is, notably, widespread. This is illustrated by European governments’ securitization of the mass displacement in Southeastern Europe in 2015 through the Balkan region. At the time, many politicians used the tragic scale of the Syrian displacement crisis to discriminate against other nationalities’ rights to access asylum procedures. Somalis and Nigerians, for instance, were portrayed as less deserving than asylum seekers from Syria, Afghanistan or Iraq. Eventually, Iraqis and Afghans were also targeted by ID controls and other forms of border interventions (EurActiv, 2016). The humanitarian-­security nexus is further deepened when military, police or Frontex personnel are integrated in asylum policies due to their emergency-­driven predisposition. One example is Frontex’s massive production of quarterly and annual risk analyses and threat assessments since its creation in 2004. As the Agency’s discourses tend to frame any increase in the numbers of asylum seekers along the Western, Central and Eastern Mediterranean routes as emergencies, requiring urgent European action, the Agency can be seen as an ‘emergency-­ driven’ actor (Carrera, 2007, p. 12). Arguing for the need to both fight illegal migration and save lives from ruthless smugglers, the discourses surrounding Frontex and other militarized border 242

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operations fluctuate between the political, legal and moral registers of humanitarianism and militarism. This can make for very inconsistent justifications. One example is European politicians’ attempts to justify the EU’s 2015 Operation Sophia envisioning push back-­practices to Libyan military units and direct European military intervention against smuggling infrastructure on Libyan territory. Sophia too is framed as saving refugees, yet, as restrictive European pre-­ screening, visa policies and non-­arrival policies close down all other legal migration routes, Sophia’s targeting of the Libyan irregular smuggling routes, in effect, represents the attempted closure of the only remaining option for thousands of displaced persons. Further illustrating the inconsistency, Sophia was framed as humanitarian despite the fact that the EU’s own Military Committee (EUMC) explicitly warned that ‘boarding operations against smugglers in the presence of migrants has a high risk of collateral damage including the loss of life’ as military personnel will be unable to distinguish smugglers from refugees (EUMC, 2015). This warning was substantiated when a leaked Frontex-­report detailed sixteen cases where Greek and Frontex vessels used firearms against ‘boat migrants’ in 2014–2015 (The Intercept, 2016). Such inconsistencies are caused by the double-­sided nature of humanitarian governance: a paradox of protection is created between the dual ambitions of care and control caused by the fact that the subject of humanitarian policing is displaced populations, while the object of border control is to safeguard the territorially bounded administrative entity (Pallister-­Wilkins, 2015, pp. 54, 67). Humanitarian border control is thus both an exclusive and an inclusive strategy, where the latter serves to produce manageable subaltern positions (Cuttitta, 2014: 11). Thus, when border operations are increasingly framed as humanitarian events using the normative grammar of universal rights, powerful actors capable of staging such interventions claim to be speaking on behalf of humanity when targeting migrants, depicted as ‘problematic peoples’ (Agier, 2011). Like the issue of security, humanitarianism, too, seems thoroughly embedded in Western conceptions of states, security and populations. The evolution of this mode of governance can be traced back to such practices as the British Navy´s abolitionist fight against the Atlantic and Arab slave trades, a humanitarian mission interwoven with that of ensuring global naval hegemony for the British colonial empire (cf. Williams, 1944; Lloyd, 1949). Europe’s colonial history may thus help explain why comparatively little research on humanitarian border policing has been done on non-­European cases, save for the US–Mexico, Australian and New Zealand borders (see McNevin, 2014; Williams, 2016).

The border technology fix A dominant assumption guiding European border-­making is that migration issues can be ‘solved’ through a ‘technological security fix’. This assumption, however, is not shared by researchers who have instead examined the incredibly complex funding structures underpinning the continent’s landscape of border technologies, identifying problems, such as lacking cost-­efficiency, policy inconsistency and blurred public-­private interests. Den Hertog (2016) has conducted an impressive mapping of the funding instruments associated with the EU’s external migration control across various instruments. His mapping shows that budgets are massive, that they have been increasing through time, and that border management, readmissions and interventions against irregular migration have remained a top priority for European policy-­makers (ibid., pp. 45–46). The financial flows underpinning the external European borders have evolved: from B7–667 budget line (2001–2003, allocating €59 million), the Aeneas Programme (2004–2006, allocating €117 million), the DCI Programme (2007–2013, allocating €384 million), the SOLID Programme (2007–2013, allocating €3.96 billion), and to 243

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the Home Affairs funds (2014–2020, projected to allocate €5.89 billion). However, the mapping also identifies ‘rampant incoherence’, reflecting inter-­institutional strife on cooperation with third countries between home affairs and development networks. When it comes to investment in research and development in border control, another report identified the risk that supplier interests are prioritized over those of the European populations (Bigo et al., 2014). For instance, Angeli et al. (2014) have analysed the cost effectiveness of return, ‘stop and search’ operations, and practices of surveillance, detention and the Evros fence at the Greek-­ Turkish land border between 2008 and 2013. The Evros fence, consisting of two cement walls with barbed wire in between them cost €7.5 million, out of which €3.16 million was paid to a private company building it (ibid.). In 2011–2012, the EU External Borders Fund provided money for a range of control technologies priced at €8.7 million, including items such as portable thermal cameras, x-­ray vans, thermal or radar systems, vehicles, police dogs and patrol boats. Also, the construction costs of nine ‘pre-­removal centres’ tallied €38.6 million, with annual operation costs estimated at €57.8 million. In total, the report estimates that in 2008–2013 Greek policies of irregular migration control cost around €500 billion, primarily donated by the EU. The results of these policies, however, did not confirm the assumption of border technology’s strategic importance. While Operation Shield and the Evros fence was followed by a relative 96 per cent decrease in apprehended irregular migrants, the same period offered also a relative 231 per cent increase on the Southern Greek sea border, a tendency multiplied many times in 2014–2016. Rather than blocking immigration, the technologies were found to consume budgets very quickly, creating unnecessary running expenditure and leading policy-­makers to ignore alternative policies like awareness-­raising, voluntary returns, screening of individual asylum cases and seasonal labour (ibid., pp.  59–61, 71). Focusing on the Spanish–Moroccan borderlands, Andersson (2014) similarly argues that many border technologies are unable to fulfill the promises made by their suppliers. Instead, he suggests that the attempts to impose massive radar- and surveillance technologies, like the External Surveillance Integrated System (SIVE)-system between Spain and Morocco on to complex migration dynamics should be seen as enacting a ‘border spectacle’. When it comes to North America and Europe, Andreas and Snyder (2000) suggest that these spectacles serve a dual purpose – they try to recraft the image of the border by making migrant illegality spectacularly visible and use this visibility to ‘broadcast deterrence’ to other potential migrants. At the same time, it is also clear that the exceptional character of European migration politics also has to do with the heterogeneous implementation of different border technologies across the continent. While most European airports follow the same standards of control, the picture changes when it comes to naval operations, border fences and push back operations. Here, a clear asymmetry has been observable between the practices of Northwestern and Southeastern European countries, save for exceptional places like Calais. This asymmetry has partly been caused by geographic factors, as the European countries with neighbouring regions plagued by displacement receive the vast majority of asylum seekers. But the EU’s Dublin system, with its rule of first country of arrival, has also reinforced this dynamic. For years, the concentration of both migrants and pervasive border control operations around Europe’s Southeastern regions has been accompanied by vocal despair of countries like Italy, Greece and Bulgaria, accusing their Northwestern counterparts of lacking in solidarity. This dysfunctionality of the European migration system erupted during the massive displacement of Syrians because the EU member states disagreed vehemently on the implementation of several resettlement and relocation plans. Consequently, Greece and Italy were once more left with the largest responsibilities and the most pervasive border control interventions, while most 244

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north western European countries instead engaged in a competition to deter prospective migrants from arriving, by lowering the rights and living standards of asylum seekers and refugees, and trying to close off migration route from Southern to Northern Europe. Migrants and facilitators facing high-­tech control technologies, like motion sensors, radars, satellites and drones, respond by low-­tech solutions and by mobilizing informal and sometimes family-­based networks (ibid.; Düvell, 2008). The technological market thereby inadvertently acts as catalysts for new social relations and sometimes life-­threatening solutions. Therefore, combined with the European closure of legal routes for migrants and refugees, the smuggling and border control industries are locked in a self-­reinforcing, but highly profitable cycle: the more controls imposed, the bigger the need for irregular routes, which, in turn, is used to justify even more advanced control technologies and so on. The reconfiguration of social relations connects with another important strand of European border research, evolving since the late-­1990s. It argues that such border politics manifest an order of global apartheid, not just at spectacular border sites, but also globally through individual societies (cf. van Houtum, 2010). This points to another exceptional feature in European border research: While Amer­ican scholarship has been quicker to discuss racial dimensions to border politics than its European counterpart, work on European borders has focused more on postcolonial continuities (cf. Mezzadra, 2006). This is undoubtedly due to the specific European history of colonialism and the way in which contemporary externalization politics rely on the dominance and external governance of former European colonies. This strand of European border studies therefore claims that some border practices, like patrols, deportation and detention, demarcate the external frontiers, or even the extra-­ territorial manifestation of European power into other countries. Simultaneously, however, they also internalize processes of racialized differentiation and stigmatization of ethnic minorities in processes that Etienne Balibar (2004) has called the ‘recolonization’ of immigration (see also De Genova, 2010; Fassin, 2011). Postcolonial analysis of European border control is still in its infancy, and in general more work is needed to uncover the intersectionality between migration, extra-­territorial sovereignty, racialization and gender (for a perspective on the latter, see however, Plambech, 2017).

Neoliberal security professionals and systemic border shifts Another recent strand of literature has focused on other social relations in European border politics, namely, the outsourcing of border control to non-­state and third-­party actors. Lahav and Guiraudon (2000) suggested that these relations can be understood as interlinked processes of externalization, devolution and privatization of migration control, and that such politics represent ‘the retreat of the state’ and the reinvention of the regulatory exchange of interests between it and private actors. This then runs the risk that interests in profit and industrial competitiveness eclipse those of cost-­efficiency and human rights in policy processes. Thus, when the United Kingdom, Denmark and the Netherlands introduced carrier sanctions in the 1980s, this obliged transportation companies to enforce European states’ visa regimes at the threat of substantial fines. Subsequently, this restrictive visa regime was further exported to countries applying for EU membership (Geddes, 2001; Gibney, 2006). This globalization of the European immigration priorities to airports all over the world thus shifted burdens of asylum responsibility outwards, from European to non-­European countries (Hyndman and Mountz, 2008). This literature strand primarily conceptualized visa policies as cases of migration control, but the early 2010s has brought to light more research on visa processing companies (VPCs), such as VFS Global (cf. Infantino, 2010). This focus problematizes the academic tendency to reduce the complex 245

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VPC-­dynamics of profit and transnational governance through a dichotomy between facilitators and ­gatekeepers (Sànchez-Barrueco, 2017). Complementing the earlier work on outsourced borders, a new locus of research has emerged focusing more on economic interests in the migration politics. While Andersson (2014) uses the term ‘illegality industry’ to refer to actors involved in smuggling and border control, Lemberg-­ Pedersen (2013) talks of ‘borderscaping contracts’, denoting outsourcing processes, which reconfigure border infrastructures. Also, inspired by Hernandez-­Léon’s (2005) work on the Mexican–US migration system, Nyberg Sørensen and Gammeltoft-­Hansen (2013) suggest the more general category of a ‘migration industry’ (see also Xiang and Lindquist, 2014; Cranston et al., 2017). For the present purpose, talking of a border control industry, allow us to differentiate between several actors. Some actors pursue contracts for border enforcement (for instance, detention or deportation practices), while others compete for contracts on border infrastructure (for instance, the building and operation of radar or satellite systems or high-­tech research and development (R&D) programmes). Other actors, like consultancy firms and universities, produce border knowledge, and others, again, provide financial services in relation to technology investments (such as export credit agencies, investment firms and credit institutions) (Lemberg-­Pedersen, 2013). In different ways, the European control and outsourcing dynamics illustrate how policy-­ making relies on the assumption that the political challenges of border control can be solved through a technological fix. Thus, it is common that policy-­documents echo with ambitions of large, transnational ‘systems of systems’ and costly projects like the Schengen Information System, European Dactyloscopy (EURODAC) and European Border Surveillance System (EUROSUR) and an ‘Integrated Border Management-­strategy’. This policy drive has been facilitated by the strategic activities of industrial suppliers of technologies through various lobbyism forums, such as border security conferences, where, immigration is framed in terms of risk, surveillance and social control (Baird, 2017). The resulting discourses promise purchasing states ‘full-­spectre dominance’, ‘real-­time awareness’ and ‘pre-­frontier knowledge’ over their borders, but whether or not this represents accurate assessments of realism and cost-­efficiency, it has the effect of sidestepping concerns for the human rights of migrants. The various externalization policies since the 2000s have also facilitated a profitable export market for the European arms industry. The sale of patrol boats, jeeps and planes to Morocco, Algeria, Tunisia and Turkey in 2002; the construction of the SIVE surveillance system in Morocco in 2003–2004; C3 control systems, planes and vehicles to Libya from 2004–2010; and the export of satellites, radar systems and planes to Turkey, Tunisia and Algeria after the Arab Spring – all illustrate the technological and cost-­intensive nature of European border externalization. However, the companies involved are not just exporting border infrastructure, but also conventional weapons. This means that the industry fuels not only the original causes of displacement, but also the spread of surveillance and control technologies used by regimes against refugees, smugglers and their own populations. In 2005–2014, companies from the EU member states granted arms export licenses to the Middle East and North Africa worth of €82 billion (Akkerman, 2016, p. 6). By one estimate, between 2000 and 2014, European countries spent €13 billion on border control technologies and services (The Migrant Files website), while an industrial consulting actor valued the global border industry at €25.8 billion in 2012 and projected an increase to €49.6 billion by 2020 (Frost and Sullivan, 2014). The case of Saudi Arabia illustrates this. Tallying €25.8 billion during this period, the petro­autocracy has been the single largest buyer of European arms and a prime export site for border control technology. Since 2009 the Saudi Border Guard Development Programme (SBGDP) 246

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has initiated the upgrade of all Saudi land and sea borders spinning off several subprojects, such as the militarization of both the Red Sea borders, the 900 km Northern and 1,800 Southern borders in order to contain displacement from, respectively, the Horn of Africa, Iraq, Syria and Yemen. The prime contractor is the German arms consortium Airbus. Just the 900 km Northern border infrastructure required three fences, seven C2 (Command and Control) centres, ten surveillance reconnaissance vehicles, thirty-­two response stations and 240 response vehicles. Linked to the C2 centres are a further network of forty surveillance towers and thirty-­two communications towers. The former towers are equipped with Airbus DS TRGS-­SEC radars and day/night-­cameras, while the latter towers are connected to the C2 centres through fiber-­optic cables (UPI, 23 September 2014). This export of control infrastructure can be supported by private investment funds, but also public providers of export credit, like the British Export Credits Guarantee Department, the German Hermes, the Italian state agencies, and the French Coface. For instance, Italy lobbied heavily for the EU to lift its arms embargo against Libya in 2004, arguing the need to militarize the external EU borders. After the embargo, Finmeccanica (now Leonardo) landed several such contracts with the Gaddafi-­regime, supported by SACE-­guarantees, and financed through a revolving credit line provided by a conglomerate of 24 European credit institutions, headed by BNP Paribas and including Bank of Scotland, Unicredit, Barclays, JP Morgan and Goldman Sachs. European externalization policies must therefore be seen in connection with trade and financial policies, and the desire to create export markets for the European security, weapons and IT industries. (Lemberg-­Pedersen, 2013, 2015). The blurred boundaries between public and private interests in European border politics can be understood as processes of neoliberalization, heralding shifts in the systemic logic guiding border-­making. This poses questions about lobbyism, informal networks and ‘revolving doors’ through which officials blur the boundaries between public institutions, the financial sector and the arms industry. But it also points to other risks: one is ‘lock-­in effects’ where the role of specific actors and technologies in border management becomes self-­perpetuating, and difficult to reverse at the political and administrative level. Another is that governments use the complexity of the border control market, with its dynamics of branching off, merging and sub-­contracting, to distance themselves from controversial practices. This obscures states’ legal responsibilities, accountability and liability (cf. Bloom, 2015).

Conclusion Inquiring into the opaque relations between European border control policies and the public and financial interests facilitating them illustrates the importance of examining border control from a vantage point capable of transcending methodological nationalism and simplistic binaries of open/closed borders. It is necessary to trace the multiple intersections between migration and border politics and a range of other policy areas. The industrial promises of bestowing totalitarian full-­spectre dominance of migration through advanced, cost-­intensive system of systems are aligned to the European political agenda’s simplistic assumptions about the strategic importance of border technologies, migration and border dynamics. Rather than providing a technological fix, and very far from being cost effective, this dynamic enables both the smuggling and control industries, but creates insecurity for both migrants and European populations. Moreover, the massive export of weapons and control systems associated with externalization fuels not only the original causes of forced migration, but also strengthens repressive states by spreading surveillance technologies used to contain citizens and migrants fleeing violence through the channels of border-­induced displacement and the 247

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inhumane and degrading conditions associated with this existence. As decision-­makers increasingly fuse security- and humanitarian-­based discourses, a humanitarian practice of policing problematic populations has experienced a postcolonial revival in European border politics, becoming dominant at Europe´s external borders and externalized interventions in African and Middle Eastern countries. With these policies also comes an increased risk of so-­called ‘collateral damage’ as a powerful combination of security concerns, profit-­interests, lock-­in effects and racism overshadow civil-­oriented border policies based on protection, international cooperation and mutual long-­term interests. The exceptionality of European migration politics is then the particular manner in which power asymmetries and internal disagreements between countries has created a group of diverse local border practices, marked by a Northwestern/Southeastern divide, which at the common­European level has resulted in a dysfunctional system forced to rely on externalization rather than internal cooperation. Moreover, this securitized and externalized migration control generates a particularly stark dilemma with respect to European governments and their affirmation of fundamental rights, including the principle of asylum. This tension has opened up a rift revealing a series of unresolved inconsistencies in European migration politics. It has put on display that Europe’s self-­understanding is still unresolved with respect to the morality of racism, colonial and imperial governance.

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20 Return and readmission policy in Europe Understanding negotiation and implementation dynamics Florian Trauner Introduction This chapter investigates the field of return and readmission policy in Europe. Removing an individual from a given territory is one of the most severe forms of exclusion from a society and community. It brings up questions of proportionality, rights and efficiency. A better understanding of the dynamics is therefore of relevance not only for academic circles but also for societies at large. Indeed, return and readmission policy has become a developing field of research within migration studies. This is not only due to the human rights’ issues at stake within each forcible return procedure. It has also been caused by the academic interest in the dynamics of including return and readmission in the European integration process. The question of who can stay in a territory and who is compelled to leave has traditionally been a prerogative of state governments. In Europe, however, these issues have become embedded in the European Union’s (EU) multi-­governance structures. The EU’s activities range from the harmonisation of migration enforcement laws, the negotiation of EU readmission agreements to the operational support and conduct of return procedures through Frontex, its border management agency. Scholars have followed and investigated these developments. Some of the key research questions in the field have been: Why and to what extent do states cooperate on the return of irregular migrants and rejected asylum seekers, in particular within the EU’s multi-­governance structure? What are the practices of return and the implementation dynamics of readmission agreements? And what is the impact of forcible return on the individual concerned, in particular on a returnee’s human rights, dignity and social standing? The objective of this chapter is to provide a robust overview of these research strands.

Return and readmission as a field of research Return and readmission policy is a controversial field (Rosenberger and Trauner, 2014). This starts with the language applied in political and academic debates. While policy-­makers prefer to use terms such as ‘return’, ‘removal’ and ‘expulsion’, social scientists often frame it as a ‘deportation’, in particular in the Anglo-­Saxon world (Gibney, 2008b). As a term, deportation is less used in continental Europe. In German-­speaking countries, the term is still associated with 251

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the ‘Jewish deportations’ conducted by Nazi Germany during WWII (Gibney and Hansen, 2003, p. 7). The use of terminology is not the aspect in which academics and policy-­makers have different perspectives. The differences also concern substantive issues. The EU – similar to the understanding and practice of the US and most other Western states – draws a distinction between ‘voluntary’ and ‘enforced returns’. The distinction concerns the level of cooperation of the person ordered to leave. ‘Removal’ implies the ‘enforcement of the obligation to return, namely the physical transportation out of the Member State’ (Article 3 of Directive 2008/115/EC of 16 December 2008). The EU tends to favour voluntary over forced returns. Indeed, many EU member states now have lower numbers of forced returns than in the 1990s. By contrast, ‘assisted voluntary returns’ and other forms of removals (such as Dublin transfers of asylum seekers within the EU) have increased (Rosenberger and Trauner, 2014). In the world of academia, these differences are often less accentuated. Peutz and de Genova define deportation as the ‘compulsory removal of “aliens” from the physical, juridical, and social space of the state’ (Peutz and De Genova, 2010, p. 1). According to such a definition, the (technical) procedure of return is of secondary importance. What is important is the element of ‘compulsiveness’ in terms of leaving a territory. In ‘assisted voluntary return’ programmes, for instance, most migrants participate because they have received an expulsion order. They therefore lack the element of ‘voluntariness’ (Webber, 2011) and may fall within the categorisation of ‘deportations’ put forward by Peutz and de Genova. By investigating the dynamics in the US, Kanstroom (2007) suggests that a deportation policy pursues two major objectives, namely ‘extended border controls’ and ‘post-­entry social control’. The first refers to an often-­heard argument: any migration policy would risk its credibility and legitimacy if an individual who enters a given state either irregularly or based on fake protection claims cannot be removed. In the field of asylum, the (expansive) asylum verification procedures receive legitimisation by referring to the option of returning all those whose claims were found unjustified (Phuong, 2005). The second objective mentioned by Kanstroom refers primarily to non-­nationals who commit a crime and are no longer permitted to remain in a country. Return policy has gained importance for state authorities. There has been a ‘deportation turn’ in the management of migration across the Western hemisphere (Gibney, 2008b). The ‘quest for border-­based national security’ (Drotbohm, 2013, p. 1) and the terrorist attacks of 11 September 2001 have contributed substantially to this development. Until the 1990s, deportations have been mostly used in situations of wars or a perceived crisis (Bloch and Schuster, 2005). By now, they have become a standard tool for dealing with unwanted and irregular migration both within and outside Europe. Under the Obama administration, for instance, the US authorities have deported record levels of irregular migrants. In 2016, US President Obama’s last year in office, a total of 490,954 removals and returns were conducted (Homeland Security, 2016). It is a declared objective of the Trump administration to increase this number. While the Obama administration focused on deporting convicted criminals, recent border crossers and persons perceived as security threats, the Trump administration has defined ‘practically every deportable person a deportation priority’ (New York Times, 2017). Deportation has become a central, if not the key issue of today’s migration management in many Western countries.

Negotiating return and readmission in Europe Return and readmission entered the field of inter-­state relations in the early nineteenth century. Prussia first signed such agreements with other German States in 1818 and 1819 (Coleman, 252

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2009, p. 12). The focus at that time was on the return of own-­state nationals. The 1851 Treaty of Gotha, for instance, included an obligation to take back ‘those individuals who are still their nationals’ (quoted in Hailbronner, 1997, p. 6). After WWII, bilateral agreements proliferated within Europe governing the admission (and non-­admission) of persons at borders. They typically included also readmission clauses for own-­state nationals (Hailbronner, 1997, p. 6). With the fall of the Iron Curtain and the increased salience – and securitisation (Huysmans, 2000) – of migration within Europe, return and readmission issues gradually moved from a bilateral to a European level. ‘Justice and home affairs’ became part of the accession conditionality for the (then) candidate countries of Central and Eastern Europe. Not only were the Eastern Europeans supposed to have a functioning and smooth return cooperation with the EU-­15, they were also transformed into ‘Safe Third Countries’ with enhanced responsibilities for receiving and dealing with asylum seekers from outside Europe (Lavenex, 1999; Grabbe, 2002; Borissova, 2003). Within the EU’s Dublin regime, asylum seekers may be sent back to the first EU country of entry. The advent of an ‘EU return and readmission policy’ coincided with the Treaty of Amsterdam (1999). It provided the EU with legal competences in the field of migration. From the EU’s point of view, an added value of EU readmission agreements (compared to bilateral agreements) is that they bring together the (negotiation) capabilities of different EU actors and member states. Also, the EU agreements create a legal obligation not only for the return of own-­state nationals but also for third-­country nationals (persons that do not have the nationality of either of the signatory parties). All EU readmission agreements include a clause on the return of third-­country nationals (TCNs) and stateless persons – an article that has proven controversial in the negotiations (Schieffer, 2003; Roig and Huddelston, 2007). While formally based on reciprocity, the EU tends to benefit more from a readmission agreement. Most returns take place from the EU to the partner countries. An important question has therefore been as to how to make a partner state accept an EU readmission agreement. Linking visa facilitation with readmission has become a dominant pattern of cooperation in Eastern and South-­Eastern Europe (Trauner and Kruse, 2008a; Hernández i Sagrera, 2010; Dedja, 2012). Visa facilitation gave the EU a leverage to complete the negotiations on readmission and demand related reforms in the justice and home affairs’ section. Facilitated travel opportunities were of high importance for Eastern Partnership countries, notably in view of the extension of the EU and Schengen eastwards (Trauner and Kruse, 2008a). It has also been of high salience for Turkey, which has long demanded full visa liberalisation from the EU in exchange for cooperation on migrants’ return (Bürgin, 2013; İçduygu and Aksel, 2014; Wolff, 2014). Most of the EU’s 17 readmission agreements have been signed with Eastern and South-­eastern neighbours (see Table 20.1). The EU has struggled to complete negotiations on readmission agreements with Southern neighbours and African states (Cassarino, 2009; El Quadim, 2014; Trauner, 2014; Wolff, 2014). These states have refrained from accepting EU readmission agreements due to high domestic salience of the return issue and EU incentives perceived as insufficient. In this region, member states cooperate primarily in informal ways and based on non-­standard bilateral readmission agreements (see next section, also Cassarino, 2007; Panizzon, 2011; El Quadim, 2014). The EU has increasingly applied a similar pattern of cooperation. Instead of insisting on the conclusion of formal EU readmission agreements, the EU has created more informal and less committing migration frameworks that may include cooperation on return (under headings such as ‘Mobility Partnerships’ and ‘Common Agenda on Migration and Mobility’) (Cassarino, 2018). The 2015 refugee crisis has accelerated this development. According to the Commission (2016b: 7), ‘paramount priority is to achieve fast and operational returns, and not necessarily 253

Florian Trauner Table 20.1  EU readmission agreements (as of January 2017) Negotiating mandate

Albania Bosnia and Herzegovina Serbia Montenegro Macedonia Belarus Ukraine Moldova Georgia Armenia Azerbaijan Russia Turkey Cape Verde Hong Kong Macao Pakistan Sri Lanka

Agreements signed

Readmission agreement

Visa facilitation agreement

November 2002 November 2006 November 2006 November 2006 November 2006 February 2011 February 2002 December 2006 November 2008 December 2011 December 2011 September 2000 November 2002 June 2009 April 2004 April 2001 September 2000 September 2000

November 2006 November 2006 November 2006 November 2006 November 2006 February 2011 November 2005 December 2006 November 2008 December 2011 December 2011 July 2004 February 2011 October 2012

November 2007 November 2007 November 2007 November 2007 November 2007 June 2007 October 2007 November 2010 December 2013 November 2013 May 2006 December 2013* October 2013 March 2004 June 2004 December 2012 May 2005

Note * Only readmission agreement was signed. Its implementation has been linked to the Turkish Visa Liberalisation Process.

formal readmission agreements’. The ‘EU–Turkey Statement’ of March 2016 allowing for the return of migrants irrespective of their legal status has been increasingly presented as a prototype for a new EU relation with countries of migrants’ origin and transit. The EU instruments, tools and leverage should be brought together in so-­called ‘comprehensive partnerships’ (or ‘compacts’) (European Commission, 2016a: 6) and used to incentivise third countries for migration control and ‘management’. While the priority countries for the compacts are in Africa and the Middle East, the EU has concluded a range of new migration and return deals with other countries too. An example has been the ‘Joint Way Forward’ document signed with Afghanistan in October 2016. It is not a formal readmission agreement but triggers a more intensified cooperation on return including the construction of a ‘dedicated terminal for return in Kabul airport’ (European External Action Service, 2016).

Implementing return and readmission policy It is a challenge to gather sound data on migration (Singelton, 2016). The field of return and readmission is no exception. According to Eurostat (2016), 533,395 TCNs were ordered to leave in 2015. The Frontex Risk Analysis suggests a different number by putting the number of return decisions at 286,725 for the same year (Frontex, 2016, p. 34). Frontex maintains that 175,220 returns took place in the EU in 2015. This means that around 60 per cent of the removal orders were actually implemented (European Commission, 2015, p.  2). The gap 254

Return and readmission policy in Europe Table 20.2  Gap between return decisions and effective returns

Return Decisions Effective Returns Efficiency ratio

2012

2013

2014

2015

269,949 158,955 58%

224,305 160,418 72%

251,990 161,309 64%

286,725 175,220 61%

Source: Frontex (2016: 70); Table first published in Slominski and Trauner (2017).

between removal orders and actual returns has long existed and has been framed as ‘non-­ deportability’ (Paoletti, 2010) or a ‘deportation gap’ (Rosenberger and Küffner, 2016). It has been a reoccurring complaint of EU institutions that the return rate would be too low. These demands have increased in frequency in recent years. There is a widespread feeling that many of the migrants entering Europe during the 2015/2016 refugee crisis do not qualify for international protection and should be removed. Here is an assessment by the European Commission: With around 2.6 million asylum applications in 2015/2016 alone, and considering that the first instance recognition rate stands at 57% in the first three quarters of 2016, Member States may have more than 1 million people to return once their asylum applications have been processed. (European Commission, 2017, p. 2) The EU has adopted different new rules and measures to achieve a higher ‘efficiency’ post-­refugee crisis. These include the creation of a dedicated EU Return Office within the ‘European Border and Coast Guard Agency’ (the agency’s abbreviation is still ‘Frontex’), a stronger exchange of information on the apprehension, identification and monitoring of irregular migrants and more money for voluntary return packages. The reformed Frontex agency has now the power of initiating and leading EU return operations, and no longer only ‘assisting’ member states. Around €820 million are devoted for the support of return operations and assisted voluntary returns (European Commission, 2017, pp. 11–12). The EU also agreed on a uniform ‘European travel document for the return of illegally staying third-­country nationals’ (Regulation (EU) 2016/1953) and works towards systematically inserting entry bans and return decisions in the EU’s Schengen Information System (SIS) (Council of the European Union, 2015, p. 8). Why is there a gap between return decisions and effective returns? A readmission agreement is a precondition for inter-­state cooperation but it does not automatically imply a functioning return cooperation. There can be some practical impediments. Third countries often refrain from cooperation on a return request due to missing documentation or an uncertain/contested identity of the irregular migrant. Many return decisions are judicially challenged, often referring to the EU’s Return Directive (Directive 2008/115/EC of 16 December 2008) as the main set of rules governing return procedures in the EU (Acosta Arcarazo and Geddes, 2014; Peers, 2015). There is also a difference within the member states in terms of how much emphasis is put on the implementation of return decision. Based on data from the period 2003–2013, Finotelli (2018) shows that the executed expulsions of the Spanish police never went over 28 per cent of the expulsion orders filled in the same year, with a similar situation in Italy. This is a lower average compared to Northern member states. 255

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Also, a return decision has often been contested in spontaneously created (grassroots) protests that perceive the deportation of a migrant well integrated in a local community as unjust (Rosenberger and Winkler, 2014). It plays a role if the bureaucracies charged with return are insulated from political influence (Ellermann, 2005, 2009). Even in the presence of a formal readmission agreement, the actual level of return may depend on mid-­level bureaucratic practices of cooperation and brokering. By investigating the implementation of the French forced return policy in Morocco, for instance, Nora el Quadim (2014) suggested that the Franco-­ Moroccan cooperation often hinged on issue-­specific bargains, for instance on a French immigration liaison officer offering technical advice and training in exchange for more operational cooperation on return. A related body of literature has investigated the role of individual actors, such as the International Organisation for Migration within the implementation of the EU–Russian readmission agreement (Korneev, 2014), or looked at the implementation of EU readmission agreements more generally (Billet, 2010). The implementation study conducted by Carrera (2016) points to the challenges of identifying potential returnees. The identification processes are often linked to and impeded by rule of law guarantees formalised in EU citizenship and migration law and the Charter of Fundamental Rights. As Carrera (2016, p. 4) points out, They relate to effective remedies against removal decisions, proportionality tests and fundamental rights standards in cases of humanitarian considerations or other personal and family reasons, which, irrespective of the individual’s identity, de jure or de facto make her/him ‘non-­removable’ or non-­expellable from a given country of residence. The author cautions against focusing only on operational effectiveness in readmission policies (understood as higher return rates) and highlights the rights of individuals subject to a return procedure.

The implications of a return procedure for the migrant concerned A readmission procedure involves three actors: the state that requests a return procedure, the state that is requested to readmit, and the migrant to be readmitted. By default, the interests of these actors are different. While the first two define the legal framework of readmission, the returnee is given the role a mere ‘object’ (Trauner and Kruse, 2008b, p. 9). Research focusing on the individuals subject to a return procedure faces substantial ethnic and methodological challenges. These people constitute a ‘vulnerable group’ for any researcher. It is often difficult to trace and investigate their path, experience and behaviour. Still, there has been a growing body of literature focusing on the behaviour of returnees and the impact of a return process on their social standing and reintegration, respectively. Applying a sociological perspective, Leerkes (2016) explores under which conditions immigrant detainees, most of whom wait for a deportation procedure, cooperate with state authorities. The author highlights that a perceived legitimacy of the migration rules (e.g. has the case been evaluated in a sincere manner?) enhances the migrants’ compliance with these rules. The author found only limited evidence that immigrants increase their willingness to leave a country due to deterrence. Related works have looked at how questions of contested and unclear identity and identification impact the lives of rejected asylum seekers. Griffiths (2012) points to the risks and implications of criminalisation and exceptional measures such as indefinite incarceration to make them ‘deportable’ (for another critical study on detention and deportation, see Schuster, 2005). 256

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While a first body of research therefore concerns the situation and behaviour of migrants awaiting or potentially subject to a deportation procedure, another looks at the post-­deportation phase. The viability of an expulsion procedure is believed to depend on the capacity of a receiving country to reintegrate the returnee and on individual livelihood options (e.g. Gibney, 2008a; Schuster and Majidi, 2013). By looking at the EU–Albanian cooperation on readmission, Kruse (2006) differentiates between own-­state nationals and third-­country nationals that are being returned. After return, Albanian irregular migrants would rarely return to their home places that are often in the countryside but move to bigger towns. Growing internal migration and urbanisation is one consequence, and it often goes hand in hand with further attempts to re-­emigrate. While the ‘return of its own nationals is a complex issue that brings about a lot of challenges for Albanian authorities’ (Kruse, 2006, p. 132), the return of third-­country nationals is even more demanding in terms of administrative and organisational infrastructure as well as wider societal questions of reception and integration. The fact that a return procedure often does not imply an ‘end’ to a person’s migratory experience has also been emphasised by Schuster and Majidi (2013). By looking at the experience of deported Afghans, they suggest three reasons why many of them sought to re-­emigrate: ‘the impossibility of repaying debts incurred by migration, the existence of transnational and local ties, the shame of failure, and the perceptions of “contamination” ’ (Schuster and Majidi, 2013, p. 221). Afghan returnees, who have entered the United Kingdom as unaccompanied asylum-­seeking children and were returned after they reached the age of 18, were at the centre of a study by Gladwell et al. (2016). The study highlights mental health difficulties, questions of insecurity (partly linked to the original asylum claims) and problems of re-­establishing or building family and social ties. ‘Seeking more settled futures for themselves, young returnees articulated their desire to leave Afghanistan again, in spite of the risks of the journey’ (Gladwell et al., 2016, p. 7). Some scholars have looked at what happens to migrants stranded on their way to the EU or rejected/returned directly at the EU external border. In this context, Morocco is a particularly relevant case, notably to the ‘hot returns’ or ‘pushback operations’ allegedly conducted by Spain at the borders of Ceuta and Melilla (Carrera et al., 2016). Migrants in Morocco are often blocked for years and struggle to get alone. ‘The “model” of border surveillance and control … comes at a considerable human cost for migrants, creating a situation of vulnerability, insecurity and human rights violations’ (Carrera et al., 2016, p. 10). The risk of human rights violations due to ill-­regulated returns or ‘wild refoulements’ has been highlighted in North and West Africa more generally (Trauner and Deimel, 2013).

Conclusions This chapter has explored return and readmission policy as a field of research. The area is contested and sensitive from a human rights’ perspective. Terminologies and definitions differ between policy circles and academia. A first strand of research has dealt with power asymmetries and the negotiations on return and readmission. The EU and member states have sought to incentivise countries of migrants’ origin and transit with visa facilitation/liberalisation, financial assistance and closer political relations. With Southern neighbours and African states, the EU has not yet managed to conclude formal readmission agreements. Member states have primarily cooperated with bilateral, informal and non-­standard agreements with this group of third countries. The EU as a whole has recently also embarked on informalising return cooperation to achieve higher return rates and reduce the public salience of the return issue (e.g. Cassarino, 2018). 257

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A second body of scholarly work has looked at the dynamics of implementing return cooperation and readmission agreements. There has been a considerable interest in investigating the reasons for the ‘gap’ between the number of expulsion orders and effectuated returns. Researchers highlighted dynamics relating to litigation, ‘grassroots protests’ at a local level, bureaucratic insulation and administrative processes (such as the identification of migrants). A final research area has been the impact of a return procedure on the migrants themselves. Some research projects have traced the post-­deportation experiences and integration of migrants. Successful reintegration is seen to depend on (structural and individual) livelihood options. If those are not present, people often re-­emigrate which may make deportations an instrument of questionable efficiency for curbing irregular migration in a long-­term (Carrera and Allsopp, 2018). In brief, the academic knowledge on return and readmission has deepened in recent years. Researchers may build upon this knowledge and continue to investigate return policies and politics including the EU’s changing relations with countries of migrants’ origin and transit. An avenue for future research is also to embark on more comparative regional studies, for instance to what extent European policy-­makers ‘learn’ and ‘borrow’ ideas from Australia’s offshore proceeding regimes or what are converging and diverging patterns of the Amer­ican and European return policies.

Acknowledgement I would like to thank Lyubov Zhyznomirska for useful comments on an earlier draft of this chapter.

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21 A Spurious Relationship? Assisted voluntary return and development Katie Kuschminder

Introduction Assisted Voluntary Return (AVR) Programmes are an important part of migration management policies in most countries in Europe. The International Organization for Migration (IOM) defines AVR as: [T]he administrative, logistical and financial support provided to migrants unable or unwilling to remain in the host country who volunteer to return to their countries of origin and, where possible, supported with reintegration measures. (2017a, p. 2) This definition highlights an important conceptual distinction between AVR and Assisted Voluntary Return and Reintegration (AVRR). The former, AVR, tends to refer to assistance in the practicalities of the return process (such as a flight home and in some cases a small monetary package at departure), whereas the latter refers to an additional assistance that is provided for the purposes of reintegrating a returned migrant into the country of origin. Forms of reintegration assistance vary between programmes and may include such support as assistance to open a new business, vocational training, housing support or psychosocial care. In recent years, AVR has increased in scale and has become an increasing salient policy issue. In 2016, over 98,000 people participated in an IOM AVR programme globally, with 54,000 people participating from Germany alone, as shown in Table 21.1. Participation is much smaller in other European countries such as the European Union (EU) Eastern neighbourhood countries. Notably, Turkey had 1,196 AVR participants and Russia had 126 participants in 2016. Global flows have seen a significant increase from 2014 wherein 43,699 people participated in AVR programmes, and nearly a 200 per cent increase from a decade ago wherein 24,696 people participated in AVR programmes in 2005 (IOM, 2017b, p. 8). Expenditures on AVR in 2016 were approximately US$158 million globally (IOM, 2017b). Considering the rise in asylum flows to Europe, the recent growth in the past two years of AVR is not surprising. In 2015, only half of the applicants in the EU received a positive response to their first instance asylum claim (Eurostat, 2016). This results in a large target population for AVR of close to half a million rejected asylum seekers. When an individual is rejected, 261

Katie Kuschminder Table 21.1  IOM assisted voluntary return flows 2016 by European country Country

IOM AVR flows

Armenia Austria Azerbaijan Belarus Belgium Bulgaria Croatia Cyprus Czech Republic Denmark Estonia Finland France* Georgia Germany Greece Hungary Iceland Italy Latvia Lithuania Luxembourg Malta Moldova Netherlands Norway Portugal Romania Russia Slovakia Slovenia Spain Sweden* Switzerland Turkey United Kingdom* Ukraine

0 4,812 3 0 4,117 635 0 85 209 531 40 2116 0 54 54,006 6,153 65 30 145 75 69 0 14 0 4,635 1,459 67 111 126 126 62 663 10 513 1,196 1 16

Source: IOM, 2017b. Note * IOM is not the main provider of AVR in these countries and therefore the figures do not reflect actual AVR flows.

they are simultaneously issued a return order to leave the country within a certain time period (most commonly, in 28 days). The large number of rejected asylum seekers that are supposed to leave the country places a subsequent pressure on return programmes, inclusive of not only AVR but also forced removals. Key migration policy documents, such as the European Union 262

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and Afghanistan Joint Way Forward signed on 2 October 2016, have placed a large emphasis on return and reintegration stating the requirement of the origin country to accept back its nationals for readmission (European Union External Action, 2016). These forms of agreements (most commonly termed operational cooperation agreements) permit the EU to forcibly return Afghan nationals. The preference in Western European countries, however, is still for a voluntary return. Nevertheless, when there are readmission agreements in place, the EU has the ability to forcibly return individuals. This chapter will provide an overview of the politics of AVR in the European context. AVR is primarily a policy tool used in Western European countries with 81 per cent of returns facilitated from IOM in 2016 originating from the European Economic Area (IOM, 2017b). These forms of programmes do not exist in the United States and were only introduced into Canada as a pilot in 2012 (CIC, 2015). The first section of this chapter provides a brief overview of AVR programmes, including their purpose and scope. The second section examines the policy arguments for AVR, while the third section contrasts these arguments to the criticisms of AVR programmes. The fourth section provides an overview of migrant decision-­making for participating in AVR programmes. The chapter then turns to exploring the relationship between AVR and development, first by discussing AVR and reintegration and sustainable return, and second by examining AVR and development. The chapter concludes by offering the author’s reflection on the role of AVR as a migration policy tool in Europe.

Overview of assisted voluntary return programmes The main purpose of AVR programmes is to return individuals to their countries of origin that no longer have the right to stay in the host country in a humane fashion. When an individual comes to a host country in Europe and is unsuccessful in their asylum claim, according to the asylum process they are supposed to return to their countries of origin. In most countries, the rejected asylum seeker is given a removal order from the host state. However, many of these people do not return (Koser and Kuschminder, 2015). There are multiple reasons why people do not return, one of which may be not having the resources to return. The purpose of AVR is supposed to assist people that are willing to return to their countries of origin in doing so. The primary target population for these programmes is current asylum seekers, rejected asylum seekers and irregular migrants. However, eligibility for these programmes differs across different host countries. AVR is a central policy mechanism intended to ensure the return of an individual. AVR programmes can operate in different ways with different actors involved. In some countries, such as Norway, all AVR programmes are operated through IOM. This differs from countries such as France and the United Kingdom, where the governments directly manage AVR themselves. In other countries, such as the Netherlands, there are a variety of organizations involved in different types of AVR programmes. There are also differences among countries in legal grounding for AVRs. According to the European Migration Network (EMN), the majority of EU member states regulate AVR through an existing national framework (2011) such as a Foreigners Residence Act, Asylum Law, Welfare Support Agreements and/or Immigration Act/Law. Four countries have specific agreements for return, and these are: Belgium, France, The Netherlands and Spain. While these agreements differ for each country, they generally lay out such criteria as who is responsible for managing AVR (Belgium), the established return schemes (France) and eligibility for payments (Spain). On the whole, AVR programmes across Europe are fairly similar in that they offer something in exchange for a voluntary return. Yet, precisely how they work varies in each county. The 263

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differences include: goals of the programme, target population (current asylum seekers, rejected asylum seekers, irregular migrants or victims of trafficking), packages that are offered (type of reintegration support, cash or in-­kind assistance, amount of assistance offered), coordination and programme implementation (government, IOM or other non-­governmental organization), and how the programme is monitored and evaluated. At this time there is no comprehensive overview available comparing different AVR programmes in different host countries across the EU.1 Evidently, further research is needed in this area in order to understand how the differences between programmes impact AVR participants and their communities upon return.

Why assisted voluntary return? The policy arguments for host countries AVR offers four key advantages for host countries over forced removals (Black, Collyer and Summerville, 2011). First, AVR is more palatable and politically appealing for host country populations as it is considered more humane than forced removals. It is the official policy of the EU that voluntary returns are preferred to forced removals. The use of physical force to remove people that do not want to go back to their countries of origin for safety or other reasons is viewed as morally questionable and has generated substantial public opposition in several European member states (Black, Collyer and Summerville, 2011). For example, the United Kingdom has witnessed an emergence of the National Coalition of Anti-­Deportation Campaigns (NCADC) while in Germany Pro-­Asyl, among others, was formed. Both of these groups work to document deportations and lobby against them seeking the protection of migrants’ rights. A second core advantage is that AVR is substantially less expensive and complicated than forced removals. Forced removals require that the country of return agrees to the removal in so far as that at a minimum they provide documents for the individual to return. If the embassy refuses to provide such documents, then it is not possible for the host country to return the desired individual. This creates many problems for the host country in logistically trying to arrange the return. In terms of cost, AVR ranges between being half or even one-­third the cost of a forced removal, depending on the country (Black, Collyer and Sommerville, 2011). The two main explanatory factors of the lower cost are first, host states do not have to charter specific flights for AVRs (Black, Collyer and Sommerville, 2011). Due to spontaneous complaints from passengers on commercial airlines towards deportees on the flights, countries moved to more commonly deport people on chartered planes, which is considerably more expensive. Second, most deportees reside in detention facilities while waiting for the removal, which are costly to maintain (Black, Collyer and Sommerville, 2011). The third preferable reason for AVR is that is provides for better cooperation with origin countries (Black, Collyer and Sommerville, 2011). Individuals are themselves responsible for acquiring their documents required to return, which origin countries are far more likely to grant to individuals requesting them voluntarily than the host state. Origin countries also view AVR more preferably as they also come under pressure by their citizens for accepting deportees. The voluntary nature is viewed as a positive gain for all. Finally, there is an argument that through the AVRR components, AVRR contributes to a more sustainable return of the individual and development (Black, Collyer and Sommerville, 2011). Although this argument is made by several host countries, there is however little evidence to support this argument, as will be illustrated later in this chapter. The majority of policy arguments for AVR are highly logical. Combined with the rise in asylum seekers, and more specifically, rejected asylum seekers to the EU, it is understandable why AVR is a central component of migration management in the EU. It is the relationship between AVR and development that remains ambiguous and will be discussed later in this chapter. 264

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Criticisms of assisted voluntary return programmes There have been three primary criticisms made of AVR programmes; first, they are not voluntary; second, they return people to countries that are not safe, and third; they do not necessarily lead to return and reintegration. The question of the voluntariness of these programmes has been raised by several authors (Blitz, Sales and Marzano, 2005; Webber, 2011; Cassarino, 2014; van Houte, 2014). Webber (2011, p. 104) rightly states: [R]epatriation cannot be termed ‘voluntary’ where the alternative is utter destitution, with denial of accommodation, basic support and the opportunity to work, or the prospect of children being taken into care or months or years in detention. The lack of alternative options available to these individuals has led Cassarino to consider AVR a ‘compelled return’, meaning an individual ‘who returns to his/her country of origin as a result of unfavourable circumstances and factors which abruptly interrupt the migration cycle’ (Cassarino, 2008, p. 113). Furthermore, Gibney (2008) has termed AVR as ‘nominally voluntary return’ and Leerkes, Os and Boersema (2016) have suggested the use of the term ‘soft-­deportation’ for AVR programmes to highlight that these individuals most likely would have preferred to stay had they been given the opportunity for a legal status. An alternative argument is to highlight the agency of migrants in the AVR process and to recognize participation in AVR as a choice. van Houte (2014) argues that participation in AVR is in fact a choice along a continuum of narrow options. There is increasing research and evidence about migrants that choose to reject AVR and live in destitution (see Crawley, Hemmings and Price, 2011). The policy expectation is that forcing rejected asylum seekers and irregular migrants to live in destitution will increase their willingness to participate in AVR. A survey conducted of destitute migrants in the UK suggests that destitution does not increase willingness to participate in AVR (Smart, 2009). In response to the phrase ‘Assisted Voluntary Return’, academics have used terms such as ‘nominally voluntary return’ (Gibney, 2008) or even ‘soft-­deportation’ (Leerkes, Os and Boersema, 2016) return to articulate against the voluntariness of AVR. Cassarino proposes the term ‘decided’ return in reaction to AVR wherein individuals ‘chose on their own initiative to return, without any pressure or coercion’ (2008, p. 113). Most academic work highlights these distinctions and terms are carefully selected in reaction to the disputed voluntariness of AVR. Criticisms regarding the ‘voluntariness’ of assisted return are not only limited to academia and civil society organizations. Policy makers in several European countries have also argued for moving towards the term ‘assisted return’ across the EU. For example, Austria, Norway and the United Kingdom use the term ‘assisted return’ for their programmes and reject the term ‘Assisted Voluntary Return’. For IOM this is problematic as their programming places strong emphasis on the ‘voluntariness’ component as their charter and organizational mandate – promoting humane and orderly migration for the benefit of all – prohibits IOM from working in the area of forced return. The terminology used around these programmes is thus quite important for different actors. The second key criticism of AVR is that it enables the return of individuals to countries and situations that may not be considered safe (Webber, 2011). It is important to clarify here that AVR is only permitted to countries or parts of countries that are officially deemed safe by the host country government. This information is normally gathered through asylum country reports that determine safety for return. As an example, several European countries return individuals to Afghanistan wherein parts of the country, such as Kabul, are deemed safe for return. 265

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However, there is also an important distinction between ‘political safety’ and ‘personal safety’ (Webber, 2011). Webber (2011) argues that personal safety cannot be ensured in AVR programmes. Third, in reference to assisted voluntary return and reintegration programmes, there is a question as to the level of reintegration achieved in return through these programmes, and also, if a ‘return’ is actually achieved. That is, there is evidence that individuals participating in AVR only re-­migrate again once they have been returned to their country of origin. Monitoring of returnees from Switzerland found that 11 per cent of all AVR participants had re-­migrated at roughly one year since return (IOM, 2013). Due to a lack of systemic tracking of all AVRs it is unknown to what extent re-­migration occurs at a larger scale. The criticisms of AVR are highly valid and raise several questions regarding these programmes. Should the word ‘voluntary’ be removed from the programme? How effective are the programmes in reintegration and sustainable return? The next section will examine reintegration and sustainable return in AVR programmes.

Migrants decision-­making factors for AVR Considering the policy goal of increasing AVR, it is central to examine the decision-­making of migrants to select AVR or not. Research has demonstrated that return decision-­making is a complex process influenced by an array of factors, including: conditions in the origin and destination country, individual and social factors, and, to a limited degree, policy interventions (Black, Collyer and Somerville, 2004; Koser and Kuschminder, 2015). In assessing decision-­making factors for AVR, Koser and Kuschminder (2015) find that conditions in the country of destination were by far the most important, followed by individual factors, social factors, policy interventions and, lastly conditions, in the origin country. Key variables influencing the decision to return included: the inability to work, insecure legal status, and family-­related factors (such as a change in the family situation at home or a desire to reunite with family back home). Strand et al. (2016) find that individuals choosing AVR in Norway can be categorized in three ways. First, those who had mixed feelings regarding their return and cited their poor conditions in Norway as the main decision-­making factor to take assisted return. Second, there were returnees who felt positive about their decision to return. These returnees most frequently cited their conditions in the country of origin as influencing their decision, such as family obligations. Interestingly, and in line with Cassarino’s theory on migration cycles and return (2014), some in this group did not have any intentions of migrating permanently and therefore to a certain degree they had achieved their migration aspirations for their return. Finally, there were respondents who viewed their decision very negatively, primarily because they felt the conditions that instigated their initial migration would not have changed in their return (Strand et al., 2016). The majority of these respondents had return strategies such as re-­migration to another country, or hiding certain family members considered at risk upon return. This classification of decision-­making groups highlights the role that different decision-­making factors take for different types of returnees. Further, this categorization highlights the importance of viewing return within the entire migration cycle. In addition to the above, two recent quantitative studies have been conducted that examine uptake in AVR from within the wider eligible population. First, having examined 90,000 rejected asylum seekers in Norway, Brekke (2015) has sought to assess characteristics of those more likely to apply for IOM return and to be returned via IOM return programmes. Brekke (2015, p. 9) found the following: 266

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• • •

•

the odds for a rejected asylum seeker to choose assisted return were lower for women, for unaccompanied minors and for persons from Afghanistan or Ethiopia; the odds of applying for voluntary return were higher if a person had a partner or family, or if she or he was from Russia, Kosovo, or Iraq; the odds of actually going back once a person had applied for assisted return were similar for women and men, and lower for unaccompanied minors, families and those that applied while residing in a reception centre; the odds of going back for those who applied for assisted return were higher for those from Afghanistan, Russia, Ethiopia, Iraq and Kosovo.

In a somewhat similar study, Leerkes et al. (2014, p. 2) examine AVR uptake in the Netherlands among rejected asylum seekers. The authors find that ‘voluntary return is less common towards countries with low levels of freedom and/or safety and/or GDP’. This is inclusive in the study of both Afghanistan and Iraq. The results of Brekke (2015) and Leerkes et al. (2014) highlight that AVR uptake is lower for individuals returning to (post)conflict countries. There are several variables that can influence uptake in AVR that have received little attention in research. First is the role of return counselling. Different countries in the EU use different models for return counselling in reception centres, and there are questions as to which is the most effective. Second, a new model developed in Switzerland to increase assisted return uptake has been a decelerating benefits model. That is, the longer an individual is in Switzerland the less money they are entitled to for assisted return. This model was piloted in Zurich in 2014 and, after being evaluated as highly effective, was implemented in the rest of the country. It has also now been adopted in Germany. There are questions regarding how this model would work in other countries, and about the fairness of the model from a human rights perspective. Third, the Netherlands has used a model of ‘native counsellors’ that in the study conducted by Leerkes et al. (2014) above was found to increase AVR participation. Native counsellors refer to individuals hired by IOM that are from the same country of origin of the target group of returnees who go to relevant neighbourhoods in the Netherlands and explain options of AVR. This is considered most effective with irregular migrants living outside of state reception facilities who are not engaged in regular return counselling that occurs in the centres. There are questions as to how all of these variables as well as treatment in the asylum system, differences in AVR packages, and other destination country specific variables may influence uptake and decision-­making for participating in AVR. While on the one hand, policy levers have been found in previous studies to have limited effectiveness on AVR decision-­making, since that time the policy environment regarding AVR has quickly evolved. Further, it is not just policies that need to be examined, but differences in approaches to return counselling and information sharing of AVR as to how they impact decision-­making.

Reintegration and sustainable return – a case for development? The key argument for the relationship between AVR and development is rooted in the assumption that reintegration assistance provided to returnees can, for example, enable returnees to start a new business that can grow and employ other people, thus having micro-­development effects at the local level. The flipside of this argument, however, is how effective are these programmes in establishing such a level of reintegration and sustainable return? This has been a core focus of increasing research. First, a central challenge exists in that there are no agreed upon definitions or indicators of reintegration and sustainable return in the AVR context. IOM (2004, p. 54) defines reintegration 267

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broadly as ‘Re-­inclusion or re-­incorporation into a group or a process, e.g. of a migrant into the society of his country of origin’. Further, IOM examines three dimensions of reintegration: social, economic and cultural reintegration (2004) and more recently includes the psychosocial dimension (2015). However, not all AVR programmes cover all four of these dimensions, as the final decision is that of the host country government funding the programme. Sustainable return has become a clear policy goal of European return programmes, yet it lacks definition and measurement, which has been acknowledged in European return reports (see: IOM and EMN, 2006) and by IOM. In a recent IOM report on AVR, it is stated: Although the concept of sustainable return is largely referred to by international actors on migration, governments and civil societies as the main desired outcome of AVRR programmes, there is no common or formal definition of ‘sustainable return’. (IOM, 2015, p. 19) The lack of a common definition of sustainable return is quite problematic when discussing outcomes of AVR. Sustainable return was first defined in a non-­AVR context as occurring when ‘socio-­economic status and fear of violence or persecution is no worse, relative to the population in the place of origin, one year after their return’ (Black et al. 2004, p. 39). Building on this definition and focusing specifically on the AVR context, Koser and Kuschminder (2015, p. 8) define sustainable return as occurring when: ‘[t]he individual has reintegrated into the economic, social and cultural processes of the country of origin and feels that they are in an environment of safety and security upon return’. Key differences that exist between these definitions are: first, the duration of time required to be sustainably returned. Koser and Kuschminder argue that this can take longer than a year (also acknowledged by Black et al.) and do not include it in the definition. Second, Black et al. make a comparison to the local population, whereas Koser and Kuschminder focus on the returnees’ own perceptions. Koser and Kuschminder argue that if returnees are on par with the local population and the local population perceives a general feeling of insecurity, this suggests instability in the region as a whole. From this perspective if the refugee is on par or not with the local population becomes somewhat irrelevant. The third distinction that Koser and Kuschminder (2015, p. 19) propose is that reintegration is a prerequisite for sustainable return; ‘the returnee must perceive that they are in conditions of safety and security upon return, which should remove the impetus for re-­migration at least in the foreseeable future’. A final approach to defining sustainable return is the approach most commonly used in the AVR context of measuring sustainability based on if the individual re-­migrates or not. Re-­ migration can be measured in different ways with three key variables of interest: the destination, legality, and intention or realized re-­migration. First, some evaluations have only considered a return unsustainable if the returnee re-­migrates to the same host country. As an example, an evaluation of a pilot AVR project in Canada stated: ‘only three AVRR participants have tried to return to Canada, which suggests that returns are sustainable’ (CBSA, 2014). This differs from a broader approach that assesses if returnees have re-­migrated to any country at all, including other countries in their own region. Second, re-­migration should also differentiate between irregular re-­migration and legal re-­migration. Koser and Kuschminder (2015) find that some returnees in their study were planning to re-­migrate but in legal ways, such as for study, when they had received a scholarship. This type of re-­migration should not be considered unsustainable return. Finally, re-­migration is often difficult to measure and often an intention is used to assess if an individual wants to re-­migrate, versus if they actually have realized re-­migration. For example, an evaluation of AVR to Kosovo examined if respondents have a ‘clear intention or 268

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concrete plans to leave the country again’ as their measure of sustainable return (ICMPD, 2015). Re-­migration is the most commonly used measure for defining sustainable return, but clearly, there are different ways to even approach this one indicator. IOM (2015, p.  19) has recently put forth their suggestion for sustainable return as occurring when: (a) successful reintegration in the country of origin, which includes the economic, social and psychosocial aspects and the capacity of the individual to cope with push factors, both old and new, on the same level as the local population or (b) eventual legal remigration made possible by skills acquired during the reintegration process. This definition combines elements of the above approaches from Black et al. and Koser and Kuschminder and argues against the blanket use of re-­migration as a proxy for sustainable return. The above definitions have all received some forms of criticisms and no one definition has become widely accepted and applied. This is problematic as the definitions are quite different and imply very distinct situations that may be occurring. Furthermore, these definitions all lead to different forms of measurement of sustainable return. It is essential to return to the starting point of this section as to the relationship between reintegration and sustainable return and development in the AVR context. Research has questioned the impact of return programmes post-­return in terms of reintegration, embeddedness or migrants’ well-­being upon return (Strand et al., 2008; van Houte and Davids, 2008, 2014; Ruben, van Houte and Davids, 2009; Webber, 2011). It is evident that the definitions and indicators currently in place are not adequate to measure development, meaning that without a standardized definition and approach, it is not possible to legitimately assess the relationship between AVR and development. For example, if sustainable return is defined as someone not re-­migrating, it is clearly not adequate to state that because someone has stayed in their country they have contributed to development. Measuring the impacts of AVR on development goes beyond just monitoring reintegration and sustainable return of the AVR participants to examining their communities and if their return has had positive development impacts on the communities as a whole. At this time, the author is not aware of any study that has taken such as an approach and can rigorously assess the relationship between AVR and reintegration and sustainable return.

A spurious relationship? Assisted voluntary return and development The relationship between AVR and development is highly contested. There is a dearth of literature on the development effects of AVR programmes; in particular, as few evaluations have been conducted on AVR and, as discussed in the previous section, those that are conducted generally do not assess the relationship between AVR and development (Paasche, 2015). Several reports do question the relationship between AVR and development suggesting that the two should not be linked (van Houte and De Koning, 2008; Frouws and Grimmius, 2012). Moving beyond the debate in the previous section on AVR and reintegration and sustainable return, the relationship between AVR and development can be explored in different ways: (1) AVR being counted as official Overseas Development Assistance (ODA); (2) the funding of AVR by country or EU development funds; (3) evidence assessment of the relationship between AVR and development (Kuschminder, 2015). These aspects bring together the important issues of AVR programming, development funding and budgets, and the overall evidence of the impact of AVR on development in countries of return. 269

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According to the Organization for Economic Cooperation and Development (OECD), in country refugee costs are considered a legitimate component for ODA expenditures. The application of in-­country refugee costs to states ODA varies by country, with some countries including costs only while asylum seekers wait for status, and others including only costs once an individual receives refugee status, and some including both or neither of these (OECD, 2016). Recently, the OECD has restricted the counting of in-­country refugee costs to be for a maximum of 12 months, either from the time of arrival into the host country or from the time of a positive decision on an asylum claim. According to the OECD, the costs for a host country in administering AVR programmes is considered to be a legitimate component of ODA expenditures. In a survey conducted by OECD with member states, it was reported that only Austria, Belgium, Norway, Sweden and Switzerland included AVR as part of their ODA expenditures (OECD, 2016). In Belgium, these costs are only counted for individuals returning to the Development Assistance Committees target countries, and in Norway, this only includes the costs of the actual transportation for the return. Most of these countries note in their reporting that return costs are included in ODA statistics, but captured separately from refugee costs. There is a question as to considering that the majority of participants in AVR programmes are rejected asylum seekers or irregular migrants without the right to stay, should this be considered as ‘refugee costs’? A second way to view the relationship between AVR and development is if AVR is funded by an individual country’s or EU development funds. In the Netherlands, for example, development funds via the Ministry of Foreign Affairs are used to finance reintegration assistance to current and rejected asylum seekers to priority development countries (Kuschminder, 2015). This has led to criticism in the Netherlands regarding the relationship between development funds and AVR (see van Houte, 2014). At the EU level, the Commission’s Directorate-­General for International Cooperation and Development (DG DEVCO) funds multiple projects whose object is to facilitate humane return and reintegration of migrants, with a focus on vulnerable migrants. A recent evaluation found that the projects funded by DG DEVCO on assisted return has little relevance to the Commission’s Migration and Development framework (Te Wildt, Greco Tonegutti and Heraud, 2015). Further, the results found that one-­third of the projects assessed had been successful in increasing local capacities for reintegration of returning migrants and that the overall impact on individuals’ integration was also questionable (Te Wildt, Greco Tonegutti and Heraud, 2015). When considering that the objective of DG DEVCO is to contribute to develop and deliver aid around the world, the authors state: [I]t seems that more developmental impact should be expected from projects supporting groups of migrants faced with specific and well-­understood socioeconomic vulnerabilities in relation to the attainment of the (M)SDGs, and concentrating on social phenomena of a certain scale – vs. interventions supporting the return and reintegration of very limited numbers of returnees. (Te Wildt, Greco Tonegutti and Heraud, 2015, p. 74) This statement makes a strong stance that AVR should not be a priority funding for DG DEVCO and questions itself the relationship between AVR and development. van Houte (2014) argues that there is a miss-­match between the potential of return migrants and availability of return funds for development. That is, migrants with a high potential to contribute to development are transnational migrants with a legal right to stay in the country of destination, and not migrants without any legal status (van Houte, 2014). According to van Houte (2014), when referring to 270

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host countries development funds, these funds should be allocated to migrants with status and not for AVR. As suggested by Te Wildt, Greceo Tonegutti and Heraud (2015), funds for origin countries should be allocated to projects that support migrants (and non-­migrants) with well identified vulnerabilities, versus only small groups of returnees from Europe. Regarding the third point, there is not enough evidence to provide a scientific assessment of the relationship between AVR and development. First, there are no agreed indicators as to how to measure the impact of AVR on development. In order to establish a relationship between AVR and development, indicators would first need to be developed. Claims have been made that AVR contributes to development at the local level; however, the evidence is insufficient to support that there is a positive relationship between AVR and development. As van Houte (2014) rightly points out, it is quite unclear why a positive relationship should be expected between AVR and development.

Conclusion This chapter has sought to provide an overview of AVR programmes by introducing how these programmes work and what their policy appeal is. It has also examined the academic literature and policy approaches that are critical of AVR because of its ambiguity around the voluntariness of migrants’ participation in the programme of return, as well as the literature that seeks to deconstruct the relationship between AVR and reintegration and sustainable return, and AVR and development. It is evident that, first, AVR programmes are primarily a migration management tool used in Western European countries and, second, that only some select Western European countries view AVR as a possible development tool. There is consensus on the utility of AVR programmes as an important migration policy tool that works in tandem with the asylum system to facilitate the return of individuals without the right to stay. This central function of these programmes is not questioned, nor is the coordination or implementation of the programmes. The proven benefits of AVR have contributed to their expansion in other parts of Europe and their rise in participant numbers in countries such as Turkey. The argument from select Western European countries that individual AVR participants should be contributing to development in their countries of origin is quite exceptional and has been brought into question by the evidence examined in this chapter. There is no evidence to support that AVR participants have the capacity to contribute to development nor that their return does lead to development for their communities upon return. On the contrary, several authors argue that AVR participants do not have the capacity to do this. There is therefore a lack of evidence to either substantiate or refute the link between AVR and development. The use of development funding for removing people without a right to stay, albeit in a voluntary fashion, is an exceptional Western European practice.

Note 1 The EMN has conducted a thorough comparative assessment of AVR (see EMN 2011), however does not include all programme elements within this review.

References Black, R., Collyer, M. and Somerville, W. 2011. Pay to Go Schemes and other Non-­coercive Return Programmes: Is Scale Possible? Migration Policy Institute, Washington, D.C. Black, R., Koser, K., Monk, K., Atfield, G., D’Onofrio, L. and Tiemoko, R., 2004. Understanding Voluntary Return, Home Office Report 50/04, London: Home Office.

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A spurious relationship? van Houte, M. 2014. Moving Back or Moving Forward? Return Migration after Conflict. PhD dissertation. Maastricht University. van Houte, M. and Davids, T. 2008. Development and Return Migration: From Policy Panacea to Migrant Perspective Sustainability. Third World Quarterly, 29(7), pp. 1411–1429. van Houte, M and Davids, T. 2014. Moving Back or Moving Forward? Return Migration, Development and Peace-­Building. New Diversities, 16(2), pp. 71–87. van Houte, M. and de Koning, M. 2008. Towards a Better Embeddedness? Monitoring Assistance to Involuntary Returning Migrants from Western Countries. CIDIN/AMIDSt, Nijmegen/Amsterdam. Webber, F. 2011. How Voluntary are Voluntary Returns? Race and Class, 54(4), pp. 98–107.

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Section commentary Irregular migration – comments Artur Gruszczak

Irregular migration has become a striking feature of human mobility in the globalised world. Simple and comprehensible by all appearances, it has turned out to be a much more complex and demanding issue in terms of political decisions, economic aspects, social attitudes, ethical principles and – last but not least – security repercussions. International migrations have been characterised by a blend of legally determined, regulated movements of persons and irregular flows of people who did not comply with formal rules of entry and residence in their countries of destination. Cross-­border and transnational in nature, the international flow of people has affected the classical attributes of the modern nation-­state: its territory, state borders, sovereign power and public order. International agreements, while aiming to improve the status of migrants and protect them from the gravest risks and dangers, used to reflect the lowest common denominator with regard to the position of ‘people on the move’. Therefore, irregularity, along with illegality as its most radical form, has been perceived through the national lens and managed according to national interests, domestic rules or dominant values. International humanitarian standards fostered a soft approach to irregular migration, connecting it with strong indigenous push factors affecting the local population (civil wars, political violence and oppression, natural disasters, poverty and hunger) and producing forced displacements.

Irregular migration as a geostrategic phenomenon From the traditional nation-­state perspective, irregular migration has been a dual phenomenon. It challenged state institutions responsible for the maintenance of security, law and order within the national territory, as well as sometimes becoming a source of trouble in the international arena, especially when it stirred up controversy over humanitarian and ethical issues. However, irregular migration also entailed positive effects, especially for national economic development and domestic labour markets. Irregular economic migrants, especially ‘overstayers’, as well as undocumented workers and asylum seekers, constituted a reservoir of manpower that filled gaps in the labour market (especially in its lower sectors), making it more flexible and competitive. In principle, they were tolerated either by force of a general consensus or a tacit political deal among major forces. Occasionally their status was legalised and they became tolerated through so-­called regularisation mechanisms. 274

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Irregular migration has thus been an example of a specific symbiotic relationship between the state and foreigners who did not or could not obtain and hold a legal right to reside within that state. A special form of ecosystem that emerged in a market framework delineated by the state, business, society and immigrants was sustained for a long time thanks to constant development and internal balance. However, global turbulence and domestic troubles often disturbed that delicate balance, switching the predominant perspective on migrants from toleration to securitisation. This became particularly true in Europe once external shocks and internal anxieties generated negative social attitudes and restrictive political decisions with regard to immigrants and asylum seekers. Whether ‘people from the East’ during the collapse of Communism in Eastern Europe, exiles from the boiling Balkan cauldron in the 1990s, or victims of turmoil in the Middle East and North Africa in the second decade of the twenty-­first century, the sentiment of being surrounded by ‘barbarians’ and ‘aliens’ triggered defensive reactions and shifted the centre of gravity to security dilemmas. For decades, many European countries have cultivated a soft approach to incoming immigrants, subject to their utility, economic productivity and lack of a criminal record. Such openness was beneficial for numerous inhabitants of peripheral areas, including citizens of East European countries before the fall of Communism (mainly former Yugoslavia, Poland, Romania and Czechoslovakia). Historically, Eastern Europe has been the region of significant emigration, due to poverty, political instability, poor human rights records and economic backwardness. Since the 1950s, its population has been shrinking like no other regional population (see Romei, 2016). Local shortages in the labour market were alleviated by compulsory employment under Communist rule or – in the most acute cases – controlled immigration of labour forces from ‘socialist fraternal nations’, mainly from Vietnam. The fall of Communist regimes prompted huge waves of migrants in the Eastern part of Europe, heading Westwards, but also – though in smaller numbers – moving from one Eastern European state to another. The developments in the 1990s contributed to the relaxation of border controls and visa policies in the majority of Central and East European countries. Capitalist transitions also offered new opportunities for foreigners, mainly in commerce, agriculture and gastronomy services (see Favell, 2008). Economic growth and mobility in the labour market made irregular migration widely tolerated in the Eastern part of Europe, especially in East-­Central European countries such as Poland, the Czech Republic or Romania. Some of them sought to manage this phenomenon through formal and legal solutions. However, regularisation programmes conducted in Hungary (2004) and Poland (2003, 2007, 2012) did not attract foreigners and moreover, only a small number of positive decisions were issued. The 2004 European Union (EU) enlargement and 2007 Schengen area extension did not considerably affect the population of irregular migrants. The massive internal labour migration of the citizens of the ‘new’ Europe (EU-­10) to the western part of the EU created new incentives. Manpower shortages provoked by the outflow of labour forces from several EU-­10 countries, particularly from Poland, coincided with economic growth and the increasing demand for cheap, skilled and flexible workers. Estimates for the late 2000s point to a substantial number of irregular immigrants staying seasonally, circulating or residing in these countries: up to 500,000 in Poland (Ukrainians, Belarusians, Vietnamese); 15,000 to more than 300,000 in the Czech Republic (from Ukraine, Moldova, Russia, Vietnam and PR China) (Drbohlav and Medová, 2016, pp. 87–88); and between 30,000 and 60,000 in Hungary (mainly Chinese and Vietnamese) (Futo, 2016, pp. 150–152). If labour migration was basically ‘domesticated’ and even irregular seasonal workers were largely tolerated, the arrival of refugees from war-­torn countries, such as Syria, Iraq and Afghanistan was met with surprise and a growing concern. The opening of the Balkan route in mid-­ 2015 as a main transit path towards Western Europe caught the countries of Central and 275

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Southern Europe unprepared for tackling the problem of irregular migrants who were travelling towards Germany and Scandinavia in numbers exceeding one million. Although the Balkans were commonly seen as a migrant corridor, border control measures adopted by Austria in late 2015 halted the stream of migrants and locked them in Hungary, Slovenia and the Western Balkan countries. In March 2016 the Balkan route was closed off completely. However, the substantial number of migrants ‘trapped’ in Hungary, Slovenia, Serbia and Macedonia presented a financial and organisational burden for local authorities as well as the huge challenge of integrating migrants given complex ethnic relations, xenophobic tendencies and anti-­migrant movements. This situation triggered the consolidation of Central Europe as a barrier against migrants. Close cooperation between four main countries of this region (Hungary, Poland, the Czech Republic and Slovakia) in the Visegrad format aimed at keeping refugees out and eliminating incentives for immigrants. Unsympathetic reactions to the migratory conundrum throughout Europe stemmed from a sense of exceptionalism, which was felt differently in the western part of the EU, and in the East and South, despite the gravity and permanence of the migrant crisis throughout Europe. These reactions reflected hypersensitivities to factual or alleged cases of wrongdoing and offenses committed by immigrants, which were interpreted as: (1) disregard for the hospitality and assistance provided by the hosting states; (2) the lack of adaptability to local conditions due to cultural, religious and language differences; (3) a sense of ‘impunity’ due to lengthy procedures, ineffective return mechanisms and a relatively wide scope of tolerance to immigrants. Therefore, the goodness of ‘welcome politics’ and generosity towards refugees was conceived by the ‘correct’ Europeans as a unique, truly humanitarian and inclusionary approach to the masses of migrants arriving to Europe as a promised land. However, ‘the other Europe’ saw the migrants as hordes of barbarians storming the borders, destroying public order and abusing the welfare system. In either case, exceptionalism was seen both in the great patience and high-­level of tolerance in the Western and Southern countries of the EU, and in the united front against the aliens, in defence of national values and principles, in the Eastern part of the EU. Confronted with hundreds of thousands of foreigners arriving to European cities and villages, neither the local population nor the authorities distinguished between legal and illegal/irregular migrants, particularly when in several countries the formal mechanisms of identity checks, registration and processing of asylum applications totally failed. Thus in general terms, the migration crisis blurred the lines separating legal from illegal immigration, and irregularity became a dominant feature of the politics of migration in the EU and its neighbourhood. The above remark leads to some comments on policy issues which have been brought to the forefront of domestic and EU-­level positions regarding irregular migration. These issues concern: (1) the safety of borders and the role played by international institutions, especially the EU and its agencies; and (2) anti-­migrant narratives.

Securing porous borders The phenomenon of irregular migration is tightly connected with the effectiveness of border controls and the quality of mechanisms and instruments of border management. Any relaxation of control regimes at state borders can result in a massive inflow of foreigners who either enjoy the liberalisation of border crossing rules (as in the case of visa facilitation or waivers), take advantage of systemic solutions (for instance, local border traffic), abuse the existing legal and administrative standards (visa overstaying, avoidance of return procedures) or violate the border regime in an organised and premeditated way. For decades, European borders have been relevant elements of the politics of migration, both in terms of the nation-­state’s interests and 276

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rationales as well as the identities of transnational communities created by international organisations. Already in the era of the Cold War, borders defined the scope and contents of collective security patterns formed and consolidated by two adversary blocs: The North Atlantic Treaty Organization (NATO) and the Warsaw Pact. At that time, any sign of porosity or leakage of borders was interpreted as a serious threat and a channel of hostile interference. The fall of Communist regimes in Eastern Europe was partially accelerated by the liberalisation of border controls between some Eastern bloc countries (Poland, Hungary, Czechoslovakia) and the subsequent massive migration wave that flooded Western Europe. Porous borders at that time epitomised humanitarian and protective standards adopted by the West with regard to dynamic transformations underway in its neighbourhood: the fall of the Eastern bloc, the disintegration of the Soviet Union and Yugoslavia and wars in the Balkans (Hills, 2004). However, those standards, confronted with the need to secure external borders of European Communities (EC)/EU Member States against criminal activities and manage the amassing number of applications for asylum and residence permits, resulted in the adoption of a dual approach to third-­country nationals based on the mix of exclusionary and inclusionary mechanisms. The EU sought to strengthen effective management and control of external borders, particularly after the emergence of the Schengen free-­travel area. At the same time, it also intended to develop good neighbourhood cooperation with its Eastern and Southern neighbours. The story repeated itself two decades later. The porosity of maritime borders in the Central and Eastern regions of the Mediterranean Sea allowed huge masses of migrants and asylum seekers from Africa and the Middle East to enter the territories of EU Member States. The number of iregular crossings of the EU’s external borders, which should be seen as the most telling indicator of border porosity, increased dramatically from barely 72,437 in 2012 to 1,822,337 cases registered in 2015 by Frontex (2014, p.  14, 2017, p.  16). Exclusionary and inclusionary approaches intermingled again, bringing about either humanitarian-­led search-­andrescue efforts, mainly in the Mediterranean Sea, or deterrence-­driven anti-­immigrant discourses strengthened by the fencing of the territories of several countries located on the main migratory routes. Some ‘frontline’ states reverted to practices of erecting walls and building fences in order to protect their territories and separate their populations from migrants storming the borders. Spain’s experience with its enclaves in Morocco (Ceuta and Melilla) was replicated in the midst of the migration crisis in Europe by Hungary, Slovenia, Macedonia, Bulgaria and France. Schengen rules of temporary reintroduction of controls at internal borders were applied by Germany, France, Austria, Denmark, Sweden and Norway. Meanwhile, humanitarian policing of maritime borders in the Mediterranean region, described by Andersson, somehow acquired militarised features as a result of NATO’s ‘Sea Guardian’ maritime operation, conducted in cooperation with the EU’s Common Security and Defence Policy (CSDP) operation ‘Sophia’. Both methods – fencing borders and intervening pre-­emptively on the high seas – reflect a strict policy of setting a ‘first’ or ‘second line of defence’ against the inflow of migrants and asylum seekers (Buyon, 2017). Borders underwent a revival as regulatory institutions and for a long time have played an important role in European security by ���������������������������������������������������������� underpinning its institutional and decision-­making architecture (Hills, 2006, pp. 67–69)������������������������������������������������������������ . However, the Europeanisation of border management, characterised by Follis, has only partially tackled the issue of irregular migration. Frontex, in spite of novelties introduced by the 2016 Regulation, has continued to perform its bureaucratic-­ distributive tasks, which can ease tensions in some borderland areas, especially in the south of Europe, but definitely cannot be treated seriously as an effective tool of countering irregular migration. Moreover, we have witnessed the collapse of the EU’s integrated border management 277

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based on the ‘triple securitisation’ of (1) threats, (2) identities and (3) territories. Perceiving irregular migration as a threat was subject to divergent interpretations by national border guards. The multistage ����������������������������������������������������������������������������������������� mechanism of the management of the identity of third-­country nationals demonstrated significant flaws when confronted with resistant ‘body politics’ performed by many migrants. High-­tech monitoring and surveillance systems safeguarding state territories along external borderlines did not prove their efficiency when confronted with the massive flows of migrants accumulated over time.

Anti-­immigrant narrative Anti-­immigrant narratives, which are intensely popular in Hungary, Poland and Slovakia and also present in public discourse in France, Italy, Germany, Austria and the Scandinavian countries, have obligatorily emphasised the perceived threats, risks and perils generated by third-­ country nationals. Rajaram (2016, p. 9) observed that ‘ “Migrant” came to be associated with illegitimacy and threat, a counterpoint to a virtuous European culture’. The more ethnically homogeneous the society, the stronger its anti-­immigrant attitudes and the more prone it is to manipulation and radicalisation. The cases of Hungary and Poland have proven that the ethno­nationalist discourse on immigration confuses the divergent forms and reasons behind migration and refuge. It excludes any form of tolerable irregular migration, depicting it instead in the context of culture clashes or assaults on predominant traditional values and national identity. In 2015, Hungary’s official position, also shared by the majority of its citizens, portrayed the country as being under a state of ‘siege’:1 the Southern section of the state frontier stormed by asylum seekers from the Middle East, an aggressive alien mob throwing stones at the police and border guards, and hordes of foreigners hanging around the capital city of Budapest or camped out at the central railway station. Rajaram (2016, p. 5) described that episode in the following way: ‘The spectacle makes migration a curiously isolated and self-­contained phenomenon, obscuring those processes of control and exclusion that produce and structure migrant mobility and its “illegality”.’ A ‘national consultation’ on immigration issues convoked by the Hungarian authorities in May 2015, and repeated in October 2017, was full of biased questions, which even linked migration with terrorism (Juhász, Hunyadi and Zgut, 2015, p.  25). In a similar vein, Jarosław Kaczyński, the leader of the ruling national-­conservative Law and Justice party in Poland, announced in the immediate aftermath of the explosion at the Brussels airport in March 2016: ‘In a nutshell: after the recent events related to terrorist attacks, we will not accept refugees because there is no mechanism ensuring security’ (Polska Niepodległa, 2016). In addition, Kaczyński became (in)famous worldwide when during the electoral campaign in 2015 he warned against receiving refugees who carry ‘various parasites and protozoa’ and spread ‘very dangerous diseases long absent from Europe’ (Cienski, 2015). Similar opinions degrading migrants and asylum seekers could be heard from Marine Le Pen, Geert Wilders or Alexander Gauland. Interestingly, hostility towards incoming irregular or, rather, illegal migrants has not spread to previous generations of immigrants. This was typical for EU states with significant numbers of multi-­generation immigrant communities, such as France, Germany, the Netherlands and Sweden, as well as member states of the Central and Eastern part of the EU, such as the Czech Republic, Poland and even Hungary. Empirical research on immigrant communities has shown different forms of cohabitation and partial adaptation to local conditions in spite of significant symbolic differences and language barriers. The case of Vietnamese residents in Prague, studied by Sykora and others, pointed to ‘a kind of mutual lack of interest and indifference than to conflicts or reciprocal friendly interactions’ (Sykora et al., 2016, p. 496) between the immigrants 278

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and indigenous population. This observation was confirmed in research on the Vietnamese in the Slovak capital of Bratislava (Hlinčíková, 2015, pp. 50–51). This disinterest is also characteristic of effective return policies and large-­scale removal/ deportation operations. For instance, given the extremely low asylum recognition rates in Hungary and Poland, the number of third-­country applicants subject to expulsion there has been relatively high, with return decisions left pending enforcement. The deportation gap, mentioned by Trauner in the EU context, was solved instantly by irregular migrants themselves who in the case of Hungary either left the country before receiving a decision on their applications or – having not been granted asylum – took every opportunity to leave the country. The exclusionary, deterrent approach to the ‘new’ migrants, meaning those who arrived to Europe from the beginning of the 2010s, was not particularly unique when compared either to earlier immigration waves in Europe, such as those of the early 1990s, or the experiences of non-­European countries, such as the United States or Australia. What is specific for Europe, however, is the outburst of aversion and hostility towards migrants, feeding radical nationalist parties that quickly earned political capital and converted it into considerable influence on domestic politics. Irregular migration has thus created and spread moral panic across traditionalist communities and regions on the European continent. As a result, the anti-­immigrant narrative has become a permanent part of everyday communication and public discourse.

Final remarks The politics of irregular migration remains an under-­researched area within migration and border studies in Europe. Despite rich scholarship on various aspects and specific issues of irregular migration, presented by Zhyznomirska, a comprehensive approach to this phenomenon is still absent. This section of the Routledge Handbook has filled many gaps by offering analytical insights into the essence and logic of irregular migration as a predominantly European phenomenon. It has provided many arguments for the uniqueness and exceptionality of the ways that Europe – or rather the EU – has responded to this phenomenon in policy terms. The strongly accentuated axiological, normative and institutional dimensions point to a European approach to handling the migration issue in a ‘civilised’ way, based on human rights, legal standards and inclusionary postures. However, many chapters in this section have provided numerous arguments against a one-­ dimensional, flattened approach to immigration and refugee phenomena. The proposed insights into the concept of integrated border management, risk management at the external borders, the role of Frontex, the organisation and mechanisms of return, removal and readmission, and the massive exploitation of security technologies can be assembled into a complex yet distorted picture of the European politics of migration, founded on the contested meaning of irregularity and illegality. The tendency to present migrants as folk devils in the public discourse in Europe, especially in social media and conventional media outlets, has left a strong mark on the understanding of the causes and consequences of irregular migration. Policy choices are thus quite limited. The EU’s institutions and national governments seem to simplify the essence of the phenomenon of irregularity. Fortunately, scholars and experts do not.

Note 1 In fact, in September 2015 the Hungarian government declared a ‘state of emergency’ in two Southern provinces over ‘mass migration’; in March 2016, the state of emergency was extended over the entire area of the country. In March 2017, the government announced that the state of emergency would run until 7 September 2017. See Hungary Today, 2016; About Hungary, 2017.

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References About Hungary. 2017. ‘Hungary extends national state of emergency in response to growing migrant crisis’. About Hungary, 3 March, accessed 29 August 2017 at http://abouthungary.hu/news-in-brief/hungaryextends-national-state-of-emergency-in-response-to-growing-migrant-crisis/. Buyon, Noah. 2017. ‘Hungary to build (another) border fence’. Foreign Policy, 24 February, accessed 27 August 2017 at http://foreignpolicy.com/2017/02/24/hungary-to-build-another-border-fence/. Cienski, Jan. 2015. ‘Migrants carry “parasites and protozoa”, warns Polish opposition leader’. Politico, 14 October, accessed 15 September 2016 at www.politico.eu/article/migrants-asylum-poland-kaczynskielection/. Drbohlav, Dušan and Lenka Medová. 2016. ‘Czech Republic: Irregular Migration – “Old Wine in New Bottles” ’. In Irregular Migration in Europe: Myths and Realities, ed. Anna Triandafyllidou, 2nd edn, 71–92. Abingdon and New York: Routledge. Favell, Andrew. 2008. ‘The New Face of East–West Migration in Europe’. Journal of Ethnic and Migration Studies 34(5): 701–16. Frontex. 2014. Annual Risk Analysis 2014. Warsaw: Frontex. Frontex. 2017. Annual Risk Analysis 2017. Warsaw: Frontex. Futo, Peter. 2016. ‘Hungary: A Quantitative Overview of Irregular Migration’. In Irregular Migration in Europe: Myths and Realities, ed. Anna Triandafyllidou, 2nd edn, 145–166. Abingdon and New York: Routledge. Hills, Alice. 2004. ‘Assumptions, Principles and Strategy’. Adelphi Papers 44 (371): 11–40. Hills, Alice. 2006. ‘The Rationalities of European Border Security’. European Security 15 (1): 67–88. Hlinčíková, Miroslava. 2015. ‘The Social Integration of Vietnamese Migrants in Bratislava: (In)Visible Actors in Their Local Community’. Central and Eastern European Migration Review 4(1): 41–52. Hungary Today. 2016. ‘Breaking News: Hungary Declares State of Emergency as Migrant Crisis Turns Unpredictable’. Hungary Today, 9 March, accessed 27 August 2017 at http://hungarytoday.hu/news/ breaking-news-hungary-declares-state-emergency-migrant-crisis-turns-unpredictable-96001. Juhász, Attila, Bulcsú Hunyadi and Edit Zgut. 2015. Focus on Hungary. Refugees, Asylum and Migration. Prague: Heinrich-­Böll-Stiftung. Polska Niepodległa. 2016. ‘Bardzo ważna obietnica Jarosława Kaczyńskiego: ‘Nie przyjmiemy uchodźców!’’. Polska Niepodległa, 9 May, accessed 15 September 2016 at http://polskaniepodlegla.pl/wydarzenia/ item/6910-bardzo-wazna-obietnica-jaroslawa-kaczynskiego-nie-przyjmiemy-uchodzcow. Rajaram, Prem Kumar. 2016. ‘Whose Migration Crisis? Editorial Introduction’. Intersections. East European Journal of Society and Politics 2(4): 5–10. Romei, Valentina. 2016. ‘Eastern Europe Has the Largest Population Loss in Modern History’. Financial Times, 27 May, accessed 27 August 2017 at www.ft.com/content/70813826-0c64-33d3-8a0c72059ae1b5e3. Sýkora, Luděk, Klára Fiedlerová, Tereza Freidingerová, Andrea Svobodová and Dita Čermáková. 2016. ‘Soužití v městské čtvrti: majorita a Vietnamci v Praze-­Libuši’. Sociologický časopis/Czech Sociological Review 52(4): 475–503.

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Asylum and international protection

22 The Historical Development of Refugee Protection in Europe Phil Orchard

Introduction1 Asylum begins with Europe. Whether we are talking about the practices of the Ancient Greeks, the flight of the French Huguenots in the seventeenth century, or the recognition of the French émigrés as political refugees in the eighteenth century, asylum for much of history has been a European concept. It is not surprising, then, that Europe as a whole has also played a key role in the development of both international organizations designed to protect refugees – beginning with the League of Nations – and in the development of international law. But, of course, these efforts have not all been unified, and nor have they always sought to establish or improve refugee protection. As we look at the history of how Europe has approached refugees from the nineteenth century through to the 1951 Refugee Convention and the establishment of the United Nations High Commissioner for Refugees (UNHCR), we can find a range of different approaches taken, some successful, some not. This chapter focuses on three such periods. It begins with the nineteenth century, a time in which the emerging democracies of Western Europe played critical roles in establishing protections for refugees at the domestic and then bilateral levels. It then focuses on the interwar period, when European states once again played a critical role in establishing new forms of refugee protection by establishing the first international organization devoted to this task – the League of Nations High Commissioner for Refugees. While this office under Fridtjof Nansen played critical roles in establishing early international law for refugees through the Arrangement System and by helping to resettle them, by the 1930s and the rise of Nazi Germany, Western European states abandoned these efforts. In the postwar period, European states found that their common interests in continuing to protect refugees at the international level varied significantly from the positions of the two superpowers, with first the Soviet Union and then the United States frequently in opposition. And yet, their negotiations with the United States, in particular, while frequently unsuccessful, did lay the foundation for the modern refugee regime both in terms of the form of UNHCR and in how refugee status was defined in both its own Statute and in the 1951 Refugee Convention.

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Europe and asylum in the nineteenth century The French Protestant Huguenots, fleeing Louis XIV’s Revocation of the Edict of Nantes, which ended religious toleration in France, were the first group to be called ‘refugees’. This is not to suggest they were unique. The Wars of the Reformation and Counter-­Reformation had seen hundreds of thousands of people displaced across Europe (Sassen, 1999: 11). What was new about the Huguenots is that they were the first group to be offered protection in law, first by Brandenburg, then other German states, the Netherlands, and the United Kingdom. The French Revolution led to similar protections being offered to political refugees. The United Kingdom first introduced legislation in order to control refugee entry during the French Revolution, but successive Alien Acts introduced and then expanded the rights of refugees under British law. With the 1826 Registration of Aliens Act the British government removed its ability to deport refugees, recognizing that a refugee once granted asylum could not be returned (Porter, 1979; Stevens, 2004: 20–28). This persisted until a new Aliens Act was passed in 1905. Other states also offered protections. In France, the rights of refugees, defined as those without protection of their own government, were codified by the French government in 1832 (Grahl-­Madsen, 1966: 280; Haddad, 2003: 307). The following year Belgium was the first country to enshrine in law the non-­extradition of any political refugee (Grahl-­Madsen, 1966: 280). This set a precedent which was rapidly adopted by other European states and which also dramatically increased the adoption of bilateral extradition treaties (Orchard, 2014). Why did this shift happen? It was rooted in the idea of liberal democracy. Governments felt ‘honour bound not to surrender such exiled patriots to the persecution of their Governments, but to grant them an asylum’ (Oppenheim and Roxburgh, 1920: 515). Surrender of refugees, as Lord Palmerston, Britain’s Foreign Secretary, argued in 1851, was forbidden by ‘the laws of hospitality, the dictates of humanity, the general feelings of humankind … and any independent government which of its own free will were to make such a surrender would be universally and deservedly stigmatised as degraded and dishonoured’.2 Yet, their approach differed significantly from today’s. These obligations were accepted only at the domestic level, and states only felt an obligation to refugees that had entered their territory. Further, these policies were possible because open migration allowed many religious refugees – particularly Jews – from Eastern Europe and Russia to move across the continent and onwards to the United States and the British Dominions (Dowty, 1987: 50; Hirschman, 1981: 226–227).

The interwar period The First World War ended many of these practices. The war caused refugee numbers to grow substantially, with the Russian Revolution alone displacing over one million people (Simpson, 1939; Torpey, 2000: 124). Further, refugees continued to be produced as by-­products of the massive changes in the European state structure that had occurred with the War (Loescher, 1993: 34). In 1926, there were at least 9.5 million refugees in Europe alone, including large numbers who had been forcibly exchanged (Marrus, 2002: 51). Consequently, throughout the 1920s and 1930s, refugees were a part of the communal landscape of Europe. In 1921, Gustav Ador, the President of the International Committee of the Red Cross, lobbied the member states of the new League of Nations to create a High Commissioner of Refugees. As he argued, these refugees represented an international problem including the need to establish a legal status for Russian refugees and to provide relief.3 284

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The member states of the League – primarily European – strongly supported this shift. The French, for example, noted that: ‘In this way the support of all civilized peoples would be gained for this humanitarian work.…’4 The British government welcomed the proposal, in part because of their own fears that the French would otherwise abandon direct assistance to refugees, and that the question needed to be addressed ‘by international methods’.5 Even the Soviet Union, in a communication to the British government, noted they had no concerns ‘in so far as they are purely humanitarian.…’6 Only the Swedish government argued that it would be better ‘to combine the efforts of the voluntary international organizations which are already in existence’ rather than create a new office.7 These states saw the core task of this new High Commissioner to define the legal status of the refugees, to organize their repatriation or their allocation to the various countries which might be able to receive them, to find them means of work and finally, with the aid of philanthropic associations, to undertake relief work among them.8 This effort was focused on Europe; as Skran (1995: 92–93) notes, ‘the governments of the Latin Amer­ican republics and the United States did not take a keen interest in the Russian refugees, but they did not oppose international assistance either’. However, while the League’s Council endorsed the need for an organization, it was quick to warn that the League ‘could accept no responsibility for the relief, maintenance, or settlement of the refugees’ (Walters, 1960: 187). Equally, the League did not accept a universal mandate for refugee protection, rather that they had responsibility only for ‘political and legal protection of certain classes of refugees’ (Simpson, 1939: 192). These restrictions ensured that these same states remained relatively unconstrained and that their domestic immigration policies remained unchallenged. Fridtjof Nansen, the first High Commissioner, did succeed in introducing a number of critical innovations that were accepted by states. The first crisis he dealt with (i.e. some 25,000 Russian refugees trapped in Constantinople), exemplified his approach. These refugees were in danger of starvation following the French government’s decision to stop providing assistance. Nansen stepped in and was able to rally support from voluntary organizations who offered 30,000 pounds (Johnson 1938: 18), funds sufficient to ensure the evacuation of over 20,000 refugees by July 1923.9 Nansen also understood that the refugees needed to have some form of legal status at the international level. He therefore focused on providing them with certificates issued through the League, an arrangement (as they came to be known) supported by a wide number of states. These ‘Nansen Passports’ not only granted to the refugees a legal identity but also marked the beginnings of international refugee law (League of Nations, 1930: 269). New arrangements needed to be negotiated for additional refugee groups, however, a process that meant only four additional groups were recognized in the 1920s: Armenians in 1924 and Assyrians, Assyro-­ Chaldeanians, and Turks in 1928. This process had three limitations. First, it was a group-­based approach. That someone was outside their country of origin and without the protection of their own government was enough to receive refugee status once that group had been recognized by a League arrangement (Goodwin-­Gill and McAdam, 2007: 16; Weis, 1954: 194; see also Sadruddin, 1976: 4). This meant that any groups not included within the Arrangement System continued to lack formal international recognition as refugees (Orchard, 2016: 215). Second, states continued to have the prerogative of granting or denying admission to refugees, and the passports offered their bearers 285

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‘no guarantee of (re) admission to the country that had issued the document’ (Torpey, 2000: 128). Finally, the Arrangement System gradually lost support. While 52 states signed on to the 1922 Russian refugee arrangement, only 13 signed onto the 1928 Arrangement (Skran, 1995). Efforts to create Conventions in the 1930s, including the 1933 Refugee Convention and the 1938 Convention on Refugees Coming from Germany, were similarly limited. Only 16 states became a party to the 1933 Convention (Beck, 1999), while only seven signed the 1938 Convention which did not enter into force before the outbreak of the Second World War (Skran, 1995: 137). With Nansen’s death in 1930, a new temporary Nansen International Office for Refugees was created, but it was established as a temporary organization set to expire in 1938. The League Council reserved for itself all final policy-­making authority and denied the Office all financial support except for administrative expenses (Grahl-­Madsen, 1983: 362–363; Simpson, 1939: 210; Stoessinger, 1956: 30). Refugee flight from Nazi Germany that began in 1933 exposed these weaknesses. Governments were reluctant to take action for fear of offending the Nazis (Skran, 1988: 289). Within the United Kingdom, the Home Office feared League measures to assist refugees would be regarded by Germany ‘as an act of unwarranted interference, if not of hostility …’.10 However, the Dutch government was persuaded by the voluntary organizations dealing with refugee matters to make a proposal to revive the High Commissioner’s office. The German government, still a League member, did not block the proposal but instead successfully proposed a range of significant limitations including that it would be a separate office with no funds from the League (Stewart, 1982: 91–99). Thus, the new High Commissioner for Refugees Coming from Germany was almost entirely separate from the League. Moreover, European governments were reluctant to even support this level of activity. The British government, in a 1935 memo, noted that it refused ‘to accept any further financial responsibility for refugees, outside the budget of the League of Nations, to oppose all schemes aimed at the perpetuation of the problem, and to press for the liquidation of the Refugee service’.11 Henry Berenger, the French representative on the High Commission’s Governing Body, argued that ‘hard times were universal, so was this problem, and that whereas France was caring for nearly half the refugees, the United States and other Amer­ican countries had taken scarcely any’ (Berenger, quoted in Stewart, 1982: 120). The French government’s overall response from December 1933 onwards was to tighten immigration legislation and remove all provisions for a separate refugee status (Burgess, 2002; Caron, 2010: 57–60). Other Western European states similarly reacted to the Anschluss by introducing restrictive visa policies and refusing them ‘to Germans and Austrians who they suspected of wanting to remain in the country’, providing asylum to only a small minority of wealthy refugees (Caestecker and Moore, 2010: 249–250). Not surprisingly, the League did very little to respond to the German refugees. After the first High Commissioner, James McDonald, resigned, his replacement, Sir Neill Malcolm did report to the League’s Council. But it was not until 1938 that the League finally combined the High Commissioner’s office with the Nansen Office to once again have a High Commissioner of the League of Nations for Refugees led by Sir Herbert Emerson. Following the Austrian Anschluss, the Amer­ican government sought to address the refugee problem by calling a conference in Evian, France, in July 1938. However, neither the French nor the British governments were prepared to alter their own policies. The British government had already limited immigration to Palestine (Halamish, 2010: 124) and argued that any financial assistance to refugees ‘was almost out of the question’ because of the precedent it would create (Sherman, 1973: 103). The French government made it clear that they ‘could accept no 286

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further Austrian immigration, “no matter how minimal it might be” ’ and that refugees without visas for other countries ‘were to be “refouler without mercy” (Caron, 2010: 67). Thus, the conference’s only action was to create an Inter-­Governmental Committee on Refugees (IGCR) to negotiate refugee departures with the German government (Marrus, 2002). The result was that as the Second World War began, no international organizations existed which could play an effective role in protecting refugees in Europe.

The postwar response to refugees The Second World War displaced between 40 and 65 million people in Europe (Orchard, 2014: 147). The Allies assumed that refugees would comprise only a small percentage of the total displaced population, and that they could be protected by the IGCR. The much larger number of so-­called ‘displaced persons’, or DPs, were presumed to want to return to their own homes. To deal with these mass movements, they created the United Nations Relief and Rehabilitation Administration (UNRRA) in 1943 giving it a mandate to undertake ‘relief of victims of war in any area under the control of any of the United Nations’.12 After the liberation of Western Europe, the Supreme Headquarters Allied Expeditionary Force (SHAEF ) worked to repatriate some three million DPs by early 1945.13 But, following the end of the war in Europe, UNRRA was tasked to work with ‘appropriate government and military authorities’ to secure the repatriation of DPs to their former countries (Woodbridge, 1950: 471–474). Repatriation, particularly of Soviet citizens, had been agreed to at the Yalta Conference by the allied powers. However, following the war, this meant that some five million Soviet citizens were forcibly returned to the Soviet Union. Pressure within the US and, subsequently, the UK, eventually ended these returns (Bethell, 1974; Elliott, 1982). This meant UNRRA no longer had a clear mandate, especially as the Soviet Union opposed halting all repatriation activities (Kochavi, 2001: 14–19, Loescher and Scanlan, 1986: 15). Also, the US was opposed to UNRRA’s expenses. President Harry S. Truman would later argue that UNRRA’s role had been ‘negligibly small in Western Europe’ and that ‘its purpose was not clearly defined …’ (Truman, 1955: 466). This left open the question of how the remaining refugees and DPs in Europe should be assisted. The first attempt was to create a new International Refugee Organization (IRO) within the auspices of the now established United Nations. The IRO represented an effort by the United States to still compromise with the Soviet Union, with the result that its formal focus remained on repatriation rather than resettlement.14 How this repatriation should occur represented a significant point of difference from the two sides. The Soviet Union and its allies favoured repatriation of all refugees, regardless of whether they wished to be repatriated or not (Penrose, 1951: 147). The Eastern bloc did not see this as a question of humanitarianism; rather, they saw it as simply returning their own citizens. Those who did not wish to return were likely ‘hostile elements’ that ‘must be silenced’ and war criminals and traitors who must be extradited.15 The IRO’s focus on repatriation was an effort by the United States and the Western European governments to compromise by at least acknowledging this view while at the same time guaranteeing the rights of refugees to not be returned to their country of origin (Holborn, 1956: 32, Ristelhueber, 1951: 180–181). But as a compromise, it failed, with the Soviet Union refusing to join the organization.16 The IRO was expensive, spending over $400 million during its existence (Saloman, 1991: 52–53; Vernant, 1953: 33–38). But it was also temporary, designed to shut down in 1950 (later extended to 1952). And while in practice it focused almost exclusively on resettlement activities, the United States was dissatisfied with it. As George Warren argued in 1951, ‘the IRO has cost 287

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my Government a tremendous sum of money. The organization was not established to function indefinitely and the time has now come to attempt solutions to the problem through bilateral negotiations’.17 But this also reflected wider US efforts to function outside the UN; as Holborn notes, ‘whenever possible, the US sought to find forums outside the UN for such activities and to restrict the role of the UN in handling such problems’ (Holborn, 1975: 59; see also Cronin, 2003: 169; Saloman, 1991). By 1949, with the end of the IRO looming and a ‘hard core’ of some 200,000 refugees remaining, it was clear that a successor organization was needed. However, in the negotiations to create UNHCR and to create the 1951 Refugee Convention, the United States and many of the Western European governments remained at odds. To begin with, the United States sought to limit the scope of UNHCR for two reasons. The first was that they felt the remaining refugees which had not been resettled by the IRO were the responsibility of the Western European governments, ‘now reluctant upon the termination of IRO to resume unilateral care for these persons and hold the view that they should continue to be provided for out of international assistance funds’.18 At the same time, the government was leery of making open-­ended commitments to refugees because recent flows across the Iron Curtain and in India, Korea, and other countries had convinced ‘Amer­ican officials that the world refugee problem was virtually unlimited. They were not willing to pledge unlimited support to those displaced by oppressive regimes’ (Loescher and Scanlan, 1986: 41). Eleanor Roosevelt, the US delegate, made this point clear, emphasizing the limits of Amer­ican generosity and warning against an ‘increasing tendency to drive the United Nations into the field of international relief and to use its organs as the source and center of expanding appeals for relief funds’.19 Because of this, the US opposed UNHCR having an assistance mandate like the IRO before it. They also sought to create a narrow definition of refugee status both in UNHCR’s Statute and in the Refugee Convention, in part to ensure refugee status was not extended to ‘internal refugees’ or, as we know them today, internally displaced persons (Orchard, 2016). At the same time, the Soviet Union and its allies argued against the need for a new international organization, but their voices were marginalized within the debate. The Soviet delegate argued that it is impossible to agree that persons unwilling to avail themselves of the protection of the country of their nationality should be regarded as “refugees” … since they refuse to accept assistance from the government of the country of which they are nationals.…20 The European position, while varied, generally favoured an organization with a broad scope and an operational role. The French and Benelux delegations initially argued that UNHCR should be a strong, permanent and multipurpose organization and that assistance to refugees was as important as legal protection. This view had historical weight – both UNRRA and the IRO provided assistance. It had wide support, including from the German and Austrian governments (neither of which yet had a voice at the UN), as well as non-­European states such as India, Pakistan and Brazil, that foresaw the need for UNHCR to provide assistance. Britain occupied the middle ground, arguing that the primary responsibility for refugees should lie with the host states. The French delegation, however, shifted their position during the negotiation to support the US view (Holborn, 1975: 63–64; Loescher, 2001: 44). With this French support, the United States succeeded in many of its goals around UNHCR, providing the agency with only a three­year lifespan, a small administrative budget, and no assistance mandate (Loescher, 2001: 44; Orchard, 2014). 288

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With the negotiations around the definition of refugee status, the European states similarly favoured a broad approach to the definition of refugees. The British delegation felt that the only criteria should be whether ‘the potential refugee had no government to which he could turn for protection’. They argued the UN had accepted ‘the protection of all refugees, regardless of their place of origin or the date upon which they became refugees. Hence the High Commissioner’s competence should extend throughout the world and to all refugees.…’21 The French delegation argued international protection was a collective responsibility and that a broad refugee definition was ‘the very embodiment of the liberalism of the European countries’.22 Thus, they suggested a refugee should be anyone who had fled ‘justifiable fear of persecution’ by their states of origin.23 As Bem notes, the European governments were initially insisting ‘on a broad definition of the term “refugee”, without any temporal or geographical limitations …’ (Bem, 2004: 617). The Amer­ican delegation favoured a narrower, group-­oriented definition.24 Their main concern was how the UN would respond to future flows. As the State Department argued in opposition to a global definition: Such a definition would commit the United Nations to the protection of unknown groups of refugees and divest the Assembly of its freedom of action to deal with new refugees situations which might arise in the future.25 Such a view reflected a much more narrow approach to how refugees should be defined. However, the United States’ view gained support. Critically, Robert Rochefort, the head of the French delegation, shifted to support this latter view, arguing that ‘never before had a definition so wide and generous, but also so dangerous for the receiving countries, been put forward for signature by governments’ (cited in Bem, 2004; Glynn, 2012: 138–139). Instead, he recommended the inclusion both of a dateline clause – which would limit the refugee status to people displace prior to 1 January 1951 – and a geographic clause establishing that the Convention would only apply to events in Europe (Bem, 2004: 614). A compromise was reached between those states who favoured the universalist view and those who favoured a narrow definition by the Vatican, which suggested inserting the line ‘in Europe, or in Europe and other continents’ and allowing each signatory to specify how they would apply the Convention (Glynn, 2012: 141–142). But, because states could choose to limit their obligations, it has been argued that the Convention in effect created an ‘instrument for the legal protection of European refugees …’ (Loescher, 2001: 45). Another important compromise saw the definition vary between the Convention and the Statute (Goodwin-­Gill and McAdam, 2007). The Statute did not limit UNHCR’s responsibilities for protecting refugees to only European refugees. Instead, it allowed new refugees who otherwise met the criteria to be automatically included in the competence of UNHCR, and also that the agency’s competence would be broader than that stipulated in the Convention (Holborn, 1975: 77–79; Loescher, 2001: 45). This difference proved critical for UNHCR’s early operations. Not only was it able to convince the United States that it could play an important role in refugee assistance as well as legal protection, but UNHCR used its Statute to move into the developing world. By the 1960s, from its European origins UNHCR was operating globally. This was reaffirmed in law by the 1967 Refugee Protocol, which both removed the dateline and geographic clauses, and brought the Refugee Convention closer to the universal aspirations initially voiced by the European states.

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Conclusions What does this history tell us? There has always been support within Europe for refugee protection, but the level of support – and the mechanisms by which it is achieved – have varied considerably. While this is a history that ends in 1951, it does have clear lessons for the present, particularly as the EU and its individual member states continue to respond to large numbers of refugees and forced migrants arriving from war-­torn Syria and other states. We have, in the past year, unfortunately seen the breakdown of two EU-­based efforts to relocate refugees within Europe. Positive stories – such as Germany’s and Sweden’s efforts to offer asylum to hundreds of thousands of refugees – need be balanced against the efforts of Hungary and other states to stop them entirely. Yet this situation is not unique. It mimics the 1930s, when the failure of cooperation through the League of Nations and the restrictionist immigration policies of individual European states blocked the movement of the German Jewish refugees fleeing the Nazis. While hundreds of thousands did receive asylum, by one estimate between 160,000 and 180,000 German Jews (out of a population of 522,000 in 1933) were unable to leave Germany before the outbreak of war and went on to die in the Holocaust.26 As Torpey (2000: 135–136) has argued, the unwillingness of states to accept these refugees may ‘ultimately have helped to push the Nazis toward extermination as the “final solution” of the “Jewish problem” ’. At the same time, such a comparison breaks down because international cooperation, including through UNHCR, has not stopped and European states broadly remain committed to the Refugee Convention. Thus, the European role in first helping to create asylum, then playing key roles at creating international organizations and international law to protect refugees continues to have critical resonance today.

Notes   1 This chapter draws on my 2014 book, A Right to Flee: Refugees, States, and the Construction of International Cooperation (Cambridge: Cambridge University Press).   2 Correspondence respecting refugees from Hungary within the Turkish dominions presented to Parliament, 28 February 1851 (cited in Schuster, 2003: 95 fn. 66).   3 Letter from Gustave Ador to the President of the Council of the League of Nations, 15 June 1921, League of Nations Archives, Geneva (hereafter LNA) R1713/13314 (Dossier 12319).   4 Jean Gout to Drummond 11 April 1921. Reprinted in C. 126.M.72.1921 VII, 3.   5 17 May 1921. United Kingdom Public Records Office (hereafter PRO), FO371 6867/ N5827/38/38.   6 Telegram from M. Chicherin to Earl Curzon 17 June 1921. PRO FO 371 6867 N7042/38/38.   7 Wrangel to Drummond, 17 June 1921, Council Document C. 126.M.72.1921 VII, 29.   8 The Question of the Russian Refugees, Report presented by M. Hanotaux, French Representative and adopted by the Council on June 27, 1921. C. 133(b) M.131.1921.VII. 3.   9 League of Nations ‘Russian Refugees: Report by Dr. Nansen’ C.472.1923. 2. 10 Foreign Office to Home Office, 20 May 1933. PRO FO 371 16274 C4549/319/18. 11 Foreign Office Memorandum on the attitude of HMG to the performance of refugee work by the League of Nations 1926–33. 21 June 1935. PRO FO 371 19677/W5796/356/98. 12 Agreement for UNRRA, 9 Nov 1943 www.ibiblio.org/pha/policy/1943/431109a.html accessed 19 April 2016. 13 Warren to Clayton, ‘UNRRA Authority to assist dissident Poles, Yugoslavs, and Baltic Nationals in Germany who do not wish to return to their homes’, 10 July 1945, United States National Archives and Records Administration (USNARA) 840.50 UNRRA/7–1045. 14 Report of the Special Committee on Refugees and Displaced Persons. E/REF/75. 31; Constitution for the International Refugee Organization, Annex 1, Part I, Section A–C. Reprinted in International Organization, Vol. 1, No. 3 (Sep 1947). See also Proudfoot (1957: 399).

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Historical development of refugee protection 15 Statement by Mr Bajan (Ukrainian SSR) Committee 3 Summary Record 1 February 1946. In United Nations Journal No. 12 Supplement No. 3 A/C.3/19. 16 Thirty-­five states signed and 18 states ratified the Constitution of the International Refugee Organization. United Nations, ‘Multilateral Treaties Deposited with the Secretary General, Status as at 31 December 2001’, ST/LEG/SER.E/20, Vol. 1, 329. 17 IRO Doc. GC/257/Rev.1, 8 November 1951 (cited in Stoessinger, 1956: 154). 18 ‘Refugees and Stateless Persons’. Foreign Relations of the United States, hereafter FRUS 1950 Vol. II. 539–540. 19 Statement by Eleanor Roosevelt (United States) General Assembly Official Records (GAOR) 262nd Meeting 14 November 1949 (A/C.3/SR.262). 20 Mr Soldatov (USSR), GAOR, 325th Meeting, 14 December 1950, 671. 21 Lord MacDonald (United Kingdom), GAOR 324th Meeting 22 November 1950 (A/C.3/SR.324), 330–331. 22 Mr Rochefort (France) Ad hoc Committee on Refugees and Stateless Persons, 33rd meeting, 14 August 1950. E/AC.32/SR.33. 23 ‘Ad hoc Committee on Statelessness and Related Problems’, France: Proposal for a Draft Convention 17 January 1950. E/AC.32/L.3. 24 Ad hoc Committee on Statelessness and Related Problems, United States of America: Memorandum on the Definition Article of the Preliminary Draft Convention. 18 January 1950. E/AC.32/L.4. 25 ‘Refugees and Stateless Persons’ 9 September 1950. FRUS 1950 II. 542. 26 United States Holocaust Memorial Museum, ‘German Jews During the Holocaust, 1939–1945’, www. ushmm.org/wlc/en/article.php?ModuleId=10005469.

References Beck, R. J. 1999. Britain and the 1933 Refugee Convention: National or State Sovereignty? International Journal of Refugee Law, 11, 597–624. Bem, K. 2004. The Coming of a ‘Blank Cheque’–Europe, the 1951 Convention, and the 1967 Protocol. International Journal of Refugee Law, 16, 609–627. Bethell, N. 1974. The Last Secret: The Delivery to Stalin of Over Two Million Russians by Britain and the United States, New York, Basic Books. Burgess, G. 2002. France and the German Refugee Crisis of 1933. French History, 16, 203–229. Caestecker, F. and Moore, B. 2010. Refugees from Nazi Germany and the Liberal European States, New York, Berghahn Books. Caron, V. 2010. Unwilling Refuge: France and the Dilemma of Illegal Immigration, 1933–1939. In: Caestecker, F. and Moore, B. (eds) Refugees from Nazi Germany and the Liberal European States. New York: Berghahn Books. Cronin, B. 2003. Institutions for the Common Good: International Protection Regimes in International Society, Cambridge, Cambridge University Press. Dowty, A. 1987. Closed Borders: The Contemporary Assault on Freedom of Movement, New Haven, Yale University Press. Elliott, M. 1982. Pawns of Yalta: Soviet Refugees and America’s Role in Their Repatriation, Urbana, University of Illinois Press. Glynn, I. 2012. The Genesis and Development of Article 1 of the 1951 Refugee Convention. Journal of Refugee Studies, 25(1). Goodwin-­Gill, G. S. and McAdam, J. 2007. The Refugee in International Law, Oxford, Oxford University Press. Grahl-­Madsen, A. 1966. The European Tradition of Asylum and the Development of Refugee Law. Journal of Peace Research, 3, 278–289. Grahl-­Madsen, A. 1983. The League of Nations and the Refugees. The League of Nations in Retrospect: Proceedings of the Symposium, New York: United Nations Library, Walter de Gruyther. Haddad, E. 2003. The Refugee: The Individual Between Sovereigns. Global Society, 17, 297–322. Halamish, A. 2010. Palestine as a Destination for Jewish Immigrants and Refugees from Nazi Germany. In: Caestecker, F. and Moore, B. (eds) Refugees from Nazi Germany and the Liberal European States, New York: Berghahn Books. Hirschman, A. O. 1981. Exit, Voice, and Loyalty: Further Reflections and a survey of recent contributions. In: Hirschman, A. O. (ed.) Essays in Trespassing: Economics to Politics to Beyond, Cambridge: Cambridge University Press.

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Phil Orchard Holborn, L. W. 1956. The International Refugee Organization: A Specialized Agency of the United Nations: Its History and Work, 1946–1952, London, Oxford University Press. Holborn, L. W. 1975. Refugees, a Problem of Our Time: The Work of the United Nations High Commissioner for Refugees, 1951–1972, Metuchen, Scarecrow Press. Johnson, T. F. 1938. International Tramps: From Chaos to Permanent World Peace, London, Hutchison & Co. Kochavi, A. J. 2001. Post-­Holocaust Politics: Britain, the United States, and Jewish Refugees, 1945–1948, Chapel Hill, University of North Carolina Press. League of Nations 1930. Ten Years of World Cooperation, Geneva, Secretariat of the League of Nations. Loescher G. 1993. Beyond Charity: International Cooperation and the Global Refugee Crisis, Oxford, Oxford University Press. Loescher, G. 2001. The UNHCR and World Politics: A Perilous Path, New York, Oxford University Press. Loescher, G. and Scanlan, J. A. 1986. Calculated Kindness: Refugees and America’s Half-­open Door, 1945 to the present, New York, Free Press. Marrus, M. R. 2002. The Unwanted: European Refugees from the First World War Through the Cold War, Philadelphia, Temple University Press. Oppenheim, L. and Roxburgh, R. 1920. International Law, a Treatise, London, Longmans. Orchard, P. 2014. A Right to Flee: Refugees, States, and the Construction of International Society, Cambridge, Cambridge University Press. Orchard, P. 2016. The Contested Origins of Internal Displacement. International Journal of Refugee Law, 28, 210–233. Penrose, E. F. 1951. Negotiating on Refugees and Displaced Persons, 1946. In: Dennett, R. and Johnson, J. E. (eds) Negotiating with the Russians, Boston: World Peace Foundation. Porter, B. 1979. The Refugee Question in Mid-­Victorian Politics, Cambridge Cambridge University Press. Proudfoot, M. J. 1957. European Refugees 1939–52: A Study in Forced Population Movement, London, Faber and Faber. Ristelhueber, R. 1951. The International Refugee Organization. International Conciliation, 470, 167–228. Sadruddin, A. K. 1976. Lectures by Sadruddin Aga Khan on Legal Problems Relating to Refugees and Displaced Persons Given at the Hague Academy of International Law. Saloman, K. 1991. Refugees in the Cold War: Toward a New International Refugee Regime in the Early Postwar Era, Lund, Lund University Press. Sassen, S. 1999. Guests and Aliens, New York, The New Press. Schuster, L. 2003. The Use and Abuse of Political Asylum in Britain and Germany, London, Frank Cass. Sherman, A. J. 1973. Island Refuge: Britain and Refugees from the Third Reich 1933–1939, Berkeley, University of California Press. Simpson, S. J. H. 1939. The Refugee Problem: Report of A Survey, London, Oxford University Press. Skran, C. M. 1988. Profiles of the First Two Commissioners. Journal of Refugee Studies, 1, 277–295. Skran, C. M. 1995. Refugees in Inter-­war Europe: The Emergence of a Regime, Oxford, Clarendon Press. Stevens, D. 2004. UK Asylum Law and Policy: Historical and Contemporary Perspectives, London, Sweet & Maxwell. Stewart, B. M. 1982. United States Government Policy on Refugees from Nazism, 1933–1940, New York, Garland. Stoessinger, J. G. 1956. The Refugee and the World Community, Minneapolis, University of Minnesota Press. Torpey, J. C. 2000. The Invention of the Passport: Surveillance, Citizenship, and the State, Cambridge, Cambridge University Press. Truman, H. S. 1955. Memoirs, New York, Doubleday. Vernant, J. 1953. The Refugee in the Post-­War World, London, George Allen & Unwin. Walters, F. P. 1960. A History of the League of Nations, London, Oxford University Press. Weis, P. 1954. The International Protection of Refugees. The Amer­ican Journal of International Law, 48, 193–221. Woodbridge, G. 1950. UNRRA: The History of the United Nations Relief and Rehabilitation Administration, New York, Columbia University Press.

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23 Contemporary politics of international protection in Europe From protection to prevention Petra Bendel

Introduction International protection in Europe is largely based on the Geneva Convention, the European Union’s (EU) asylum policies, and separate EU member states’ refugee policies. This chapter focuses mainly on the EU’s international protection regime, in which the author distinguishes the following three related policy circles, from the outside to the inside of the EU: (1) cooperation with refugees’ countries of origin and transit, (2) monitoring of transit routes and external border controls and, lastly, (3) within the EU and its member states, development and implementation of the measures regarding registration, admission and distribution of asylum seekers and refugees, and all rights to which they are entitled as soon as they reach the territory of a member state (Bendel 2016, 2017). The focus of the asylum policy in the EU has increasingly moved to external issues. It originally focused on internal and justice policy, before successively concentrating more on external, security and defence policy, and the latest changes – in response to the massive influx of refugees and migrants since 2015 – have further intensified this change. Regarding this tendency, critics speak of an ‘outsourcing’ of the European responsibility to provide protection, mirrored in a tendency to make use of developmental partnerships with countries of origin and transit in order to put a stop to migration. The lack of legal access to the territory of its member states, the enforcement of controls at the external borders and, finally, the lack of a solidary responsibility among the EU member states leading to a ‘race to the bottom’ of protection standards, are the recent issues of concern in the politics of international protection in Europe.

Elements and principles underlying the European Union asylum and refugee policy Before becoming harmonised in the EU, refugee and asylum policies in (western) European countries were determined on the basis of the international refugee regime, in particular by the Universal Declaration of Human Rights (especially, Art. 14 (1) – a consequence of the Holocaust ad the Second World War), the 1951 Geneva Convention relating to the Status of 293

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Refugees, and the 1967 New York Protocol relating to the Status of Refugees. The latter determined the definition of a refugee and the prohibition of refoulement. These principles remain at the heart of the EU directives and regulations. In a first phase of European cooperation, between 1957 and 1990, the European Community (EC) did not have competence on migration and asylum as the member states held sovereignty over these issues. The EC governments sporadically coordinated their policies in Justice and Home Affairs, especially on transnational criminal justice and terrorism. It was not until a second phase between 1990 and 1999 when EC states saw an increasing number of asylum seekers from the Balkans that the policy environment changed. This development gave rise to three important pillars in the EU asylum policy: The 1990 Schengen Convention (based on the 1985 Schengen Agreement), the Treaty of Maastricht (in force since 1993) that deemed asylum policy to be a common interest, and the 1997 Dublin Convention which stipulated what member state would be responsible for the processing of an asylum claim. With the Treaty of Amsterdam (in force since 1999), we observed a transfer of competencies in the area of migration and asylum from the member states to the EU, with policies becoming commonly regulated. With a number of common regulations and directives developed in the EU throughout the 2000s, European asylum and refugee policies became the first migration field to be Europeanised, significantly restricting national room for manoeuvre in asylum matters, which had formerly been regarded as a ‘domaine réservé’ of the national state in decision-­making. Europeanisation was therefore a consequence of the Schengen Agreements, which created the basis to abolish border checks among the member states. This led member states to acknowledge that immigration and asylum could not be managed on the national level alone any more, since mobility and migration were not controlled any more at internal borders. Security and control issues were therefore inherent in EU policies on immigration and asylum right from the start. They also gave way to the Dublin Treaty, contracted in 1990 and in force since 1997, which defined the responsibilities of the member states for asylum claims according to the principle of ‘one state only’: In principle, the one state which an asylum seeker entered first is responsible for the treatment of the asylum claim. It was designed to prevent asylum seekers from claiming asylum in more than one country or doing so repeatedly (‘asylum shopping’ or ‘hopping’, as it was called pejoratively). However, this rule was also established in order to protect persons looking for international protection: It was designed to prevent potential host countries from declaring themselves not to be responsible, so that refugees would be deprived of the opportunity to receive international protection in any country (‘refugees in orbit’). Confronted with an increasing influx of asylum seekers, Germany, having taken most of the persons fleeing from the Yugoslavian wars in the 1990s, pioneered such policy innovations as the ‘safe third country’ and the ‘safe country of origin’ concepts, as well as introduced a special procedure for persons coming in through the airports. It even reformed the more generous article 16 of its Constitution in order to restrict access for persons looking for protection. Several of these measures were later on also introduced in a Common European Asylum System (CEAS). It was with the Treaty of Amsterdam (in force since 1999) that the Geneva Refugee Convention and the European Convention on Human Rights were incorporated into the EU Treaties, effectively communitarising asylum policies in the Union. Member states agreed on developing CEAS for the reception and acceptance of asylum seekers, and further developing the Dublin System to form the foundation for the CEAS. The idea was to create a common European protection system, based on solidarity and shared responsibility for persons seeking international protection. In spite of a rapid development of common protection standards, this system suffers from structural deficiencies. In particular, it does not have a real mechanism that 294

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would balance the unequal distribution of refugees and asylum seekers nor does it possess remedies to monitor and enforce the application of its standards, since the implementation of the common rules depends largely on the member states (for wider discussion on CEAS, see Zaun, this volume). The extraordinary path of communitarisation of the asylum policy in the EU explains why scholarly debates, especially in political science and law, have closely followed the steps taken by the EU institutions and the policies resulting from this process of Europeanisation. They differ, therefore, from debates about asylum and international protection in other parts of the world. Unlike other countries, EU scholars are engaged in debates about: (a) why member states agreed in transferring their sovereignty, at least partially, to the EU level, (b) how the principles of ‘burden sharing’ and ‘solidarity’ regarding the numbers of refugees and asylum seekers are regulated and implemented, and (c) whether and how to harmonise standards for qualification as a refugee, the reception conditions for refugees, and the asylum procedures. A particular European tendency is also to be found in the fact that not only academics have critically examined these developments, but also representatives of Brussels-­based think tanks have added important contributions to research and assessment of the state of affairs. Such situation resulted in a partly normative, sometimes even activist orientation of writing with regard to the underlying norms of policies, discussing the policy outputs and outcomes of asylum and refugee protection policies with an occasionally strong normative focus (cf. Bendel and Ripoll Servent 2018). Academic writing on EU asylum policies has related mainly to the question of whether communitarisation has actually resulted in more supranational effects through the European Commission, the European Parliament or the Court of Justice of the European Union (Lavenex 2006), or whether it basically remained intergovernmental, with member states governments circumventing ‘liberal domestic constraints’ (relating back to Hollifield 1992) in a sort of venue shopping (Guiraudon 2000; Bendel et al. 2011), with restrictive parts of the asylum legislation remaining untouched (Trauner and Ripoll Servent 2016; Bonjour et al. 2017). There have also been analyses of the impact of EU policies on domestic asylum regimes (see El-­Enany and Thielemann 2011). Within a field that has largely been dominated not only by political science but also by scholars of EU law (de Bruycker 2004, 2005; Hailbronner 2000), a strong focus on the analysis of ‘securitisation’ of asylum policies throughout this period, underlining that security-­related aspects have been prevailing over more rights-­based, protection-­related issues in EU asylum legislation (Huysmans 2006), which is still being called for (Bendel 2016; Keudel-­ Kaiser et al. 2016). Whereas harmonisation of laws and solidarity among the member states and the tendency of further passing decision-­making power to supranational institutions or agencies are probably exclusive European problems and that of mainly European academia, the requirement of protecting people in need is not. It is based on international law and human rights standards and as such, provides important benchmarks for EU member states, the EU itself (Roos and Zaun 2014), as well as for other countries worldwide. If it is true that ‘[a]sylum policies seem to migrate across borders with notably greater ease than asylum seekers themselves’ (Macklin 2013, p. 99), scholars will have to closely monitor and evaluate their development and implementation in order to learn lessons about the implication in asylum rights developments across continents.

Externalisation of refugee protection? Recent tendencies in the EU’s Global Approach to Migration and Mobility (GAMM, cf. Maes et al. 2011) – that relate internal guarantees for asylum and refuge to a closer cooperation with 295

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third countries, fighting root causes, irregular migration and smuggling as well as fostering return policies – show a tendency to develop a European external refugee policy and/or policy on irregular migration, but there has been no systematic coupling with development-­policy measures yet. As one of the consequences of the recent so-­called ‘refugee crisis’, the EU has recognised that it is not providing the countries of origin and the countries of first reception with adequate support. Instead, asylum seekers face protracted situations with no prospect of integration and ever-­deteriorating living conditions, triggering a massive secondary migration from countries such as Turkey, Lebanon and Jordan. Agreements with transit states and establishment of regional protection centres in countries outside the EU have been regarded with scepticism, especially relating to the conditions for guaranteeing international refugee and human rights (Guild 2007, 2009). The cooperation with third countries has reached the top of the policy agenda in the EU, particularly since the so-­ called refugee crisis (cf. Bendel 2017). Migration dialogues, mobility partnerships (MPs), Common Agendas on Migration and Mobility (CAMMs), readmission agreements, EU Readmission Agreements (EURAs), Visa Facilitation Agreements (VFAs), migration clauses in association and cooperation agreements, Regional Protection Programmes (RPPs) and Regional Development and Protection Programmes (RDPPs), in addition to operational measures, – have come to form a scattered and often incoherent picture in the EU’s cooperation efforts with countries of origin and transit. One of the recent attempts to reformulate the EU’s relationship on migration management with third countries is the Commission’s new Migration Partnership Framework adopted following the Valletta Summit Conclusions from November 2015. Taking into account the whole migration and flight route approach, the EU wishes to tackle the root causes of flight; to offer people on the move adequate protection; to curb the number of irregular migrants; to combat human smuggling and trafficking; and to improve cooperation on return and readmission. In exchange, it offers third countries positive incentives, such as visa facilitation or other legal access options for their citizens. Such incentives can also extend beyond the narrow policy field of migration and include instruments of European Neighbourhood Policy and development cooperation, as well as trade, energy, security, education, environmental or agricultural policy. Negative incentives largely follow in the familiar tracks of development cooperation conditionalities (cf. Bendel 2016). However, few signs are there to show that these cooperation efforts have resulted in human rights or developmental benefits, but have had a strong focus on security and migration control. The readmission agreements, too, harbour human rights risks, especially violations of the right of non-­refoulement in third states with which agreements have been concluded (United Nations 2015), practices that the European Court of Human Rights has characterised as incompatible in several judgments. The migration partnership agreements, too, have been criticised for their tendency to unilaterally impose more conditionalities on third countries. All too often, little attention is paid to the position of the third states themselves, for which readmission of migrants is scarcely a priority. A consortium of 110 non-­governmental organisations (NGOs), for instance, condemned the new Migration Partnership Framework, alleging that the sole aim of the foreign policy pursued in it was to put a stop to migration at the expense of the EU’s credibility and basic and human rights (Joint NGO Statement 2016). Another relevant issue is that EU asylum and refugee policy and EU border protection continues to suffer from the fact that it offers asylum seekers no safe and legal options to come to EU member states (Bokshi 2013; FRA 2015; Collet et al. 2016). Providing access to the territory of EU member states in a safe and legal manner and in compliance with the right to ‘non­refoulement’ of asylum seekers to states in which they might be subject to persecution, has been important in this discussion. Such access routes include: diplomatic asylum, resettlement and 296

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return settlement; the flexible use of visa provisions and procedures for safe entry; and common asylum procedures in third countries. These are debates that by no means have to be resolved by European countries alone. Further development of a global responsibility and development of good practices from which the EU and its member states may learn from each other and from other states (EMN 2016), such as Canada, with its long tradition of resettlement policies, is one of the comparative issues in policy development that might be fostered. The Dublin System, at the heart of the CEAS, which aimed at regulating the state’s responsibility for asylum procedure, collapsed inside the EU under the pressure of the massive influx of refugees in the years 2015 and 2016 (Costello and Mouzourakis 2016). The Dublin Regulation (in its fourth version currently under revision) is used in 31 European countries (EU member states except Denmark, plus Iceland, Norway, Switzerland and Liechtenstein), but it was not intended to be a refugee allocation system. The regulation rather established the criteria and mechanisms for determining the member state responsible for examining an asylum application – this should be ‘one state only’ in order to prevent secondary movements within the EU; in principle, the rule determines that the state an applicant entered first is responsible. All persons in need of international protection should thus be guaranteed effective access to asylum procedures throughout the whole EU in order to avoid the ‘refugees in orbit’ phenomenon. From the member states´ point of view, the system produces a situation in which some countries have to bear a disproportionate share of the burden. In principle, countries with external borders are especially concerned. These countries were burdened additionally through the Dublin transfers and tended to lay more emphasis on processing as many application claims as possible, than on guaranteeing the quality of the application examination (ECRE et al. 2013). Empirically and in the light of the fact that a lot of refugees do not even claim asylum in the states with external borders but prefer to travel on to other member states, such as Germany or Sweden, the small and medium-­sized countries for some time had to take care of the highest numbers of refugees in relative terms, if we take figures in relation to the population size in. Given this situation, the system awaits a solution for a fair and permanent distribution of refugees. The member states have to play a key role in this scenario, but have increasingly been divided as regards an obligatory quota. Their failure to adhere to the Dublin Principle triggered a chain reaction that cannot be resolved by means of temporary border controls on people. Although these are permitted under the Schengen Borders Code and may slow the rate of entry, domino effects are triggered in the other member states that put the European protection system and refugees at risk. Scholars will need to closely follow these developments, both underlining normative standards, analysing national solutions provided by individual member states and comparing them. With regard to integration of refugees and asylum seekers, which is largely a competence of the member states, there are major differences in welcome and integration policies. Integration, however, ‘might transform a challenge into an opportunity for aging European economies’ (Bordignon and Moriconi 2017). The so-­called ‘refugee crisis’ – or rather, the crisis of the EU asylum policy – has also provoked a strong polarisation in the perception of asylum seekers and policies and the need to guarantee international protection among the member states. Indeed, it was the Visegrád group which most strongly opposed accepting an (obligatory) relocation of refugees among the member states and initiated highly restrictive national policies, even reinstalling or building new fences and border controls. Recognising that a fair distribution of refugees among EU member states, let alone among other European states, would not be possible, also Germany and northern European states, formerly known for a more liberal and rights-­based asylum policy, began to introduce increasingly restrictive policies and focus on return policies. This more restrictive tendency and a new renationalisation of asylum policies was mirrored in the relaunch of the regulations and directives of the CEAS, which has been developing since 297

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the early 2000s: In a first phase between 1999 and 2007 in which the EU member states tried to harmonise asylum laws, the establishment of a common system failed. The result was more often than not harshly criticised for representing a ‘protection lottery’, as it was called by UNCHR (2010). Indeed, it still makes a very big difference in recognition rates whether an asylum seeker arrives in Greece, in Malta, or in Finland, and the same is true with regard to reception conditions and asylum procedures. A first recast of the CEAS, passed in June 2013, aimed at ending this asylum lottery by further harmonising legislation, raising the common standards for refugee protection, and establishing a system of responsibility and solidarity among the member states. Consisting basically of two regulations – Dublin III (Regulation (EU) No. 604/2013) and EURODAC (Regulation (EU) No. 603/2013), which determine the EU member state responsible to examine applications for asylum seekers and the data collection necessary for this process, and of four directives, the CEAS lays down the standards for qualification as a refugee (Directive 2011/95 EU), the status of third-­country nationals who are long-­term residents (Directive 2011/51/EU), standards for the reception and treatment of applicants and refugees (Directive 2013/33 EU), and standards of common asylum procedures (Directive 2013/32/EU). As to harmonisation, it can be stated that the Union took the line away from previous minimum requirements to common standards. Nevertheless, with regard to some directives, it left ample room for manoeuvere to the member states enabling them to even cement existing asynchronicities. This became most obvious with matters having an extreme focus on sovereignty, where the member states continue to cling to their exceptional rules, such as asylum seekers’ access to the labour market or the duration of asylum procedures. However, the reform took into account the special needs of vulnerable persons and unaccompanied minors. The debate on alternative distribution keys to replace the Dublin Regulation had previously been taken up by the European Parliament, different scientists (for instance: Czaika 2009; Thielemann et al. 2010; Thielemann and Armstrong 2013), the European Commission and the Council of the European Union, and NGOs. They all have repeatedly called for an equitable and solidarity-­based refugee allocation system. However, member states have not been able to agree on a different allocation system so far, and even the proposed relocation of 160,000 refugees from the ‘hotspots’ in Italy and Greece has only gradually picked up momentum. A lack of adequate cooperation from member states with the most affected states at the external borders was therefore criticised (Guild et al. 2017). All in all, the EU has largely failed to actually harmonise reception and asylum procedures’ protection standards among the member states because these make large use of their discretions in implementation. Large divergences in admission, the asylum procedure and finally admission rates continued or even increased, as the rising number of people arriving triggered a ‘race to the bottom’. This resulted in a lowering of standards and stricter barriers to entry. The European Commission had started 40 infringement procedures relating to transposition and implementation of CEAS directives, but these could hardly have any effect before the European Commission started a revision of the directives and regulations of the CEAS. The aim of this new reform is to speed up the asylum process and harmonise standards across the EU. The CEAS reforms, negotiated from 2016 onwards, have to take into account the divergent interests of the European Commission as the agenda-­setter, the member states represented in the Council, and the European Parliament, with its newly-­gained competences in this area. The reforms, above all, aimed at reforming the much collapsed Dublin System, transforming the previously temporary relocation system into a permanent ‘corrective allocation mechanism’ – a distribution system based on population size and gross domestic product (GDP), which would automatically come into force, as soon as a member state had admitted 150 per cent of the number of asylum seekers allotted to it. This was one of the most controversial ­proposals, as this threshold would once more place the asylum systems of countries of first arrival 298

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under excessive strain, and cement the notion of an ‘emergency mechanism’ rather than a proactive distribution system. The second highly contested proposal was the introduction of a ‘financial solidarity mechanism’: If member states refused to admit asylum seekers, this mechanism would force them to pay €250,000 for each asylum seeker that would otherwise have been allotted it within 12 months. Replacing the previous directives grounds for granting refugee status (Qualification Directive) and the Asylum Procedures Directive with new regulations, the Commission there might be less friction losses and stronger harmonisation during the implementation of existing EU rules: Unlike directives, regulations apply directly in the member states and do not have to be transposed and implemented first into national law. It is, however, to be expected that member states will be keen to ensure they get as much leeway as possible from the negotiation stage. Although the regulations foresee some improvements, such as compulsory access to legal support from the start, NGOs as well as several groups in the European Parliament have been highly critical of the fact that more duties are imposed overall on member states and above all on asylum seekers.

Challenges With regard to EU integration, the described polarisation among the member states shows a deep normative gap that opens up debates about the future not only of the policy, but also of the EU as a whole. As a genuine crisis, it involves the risk of further division of interests, renationalisation and an increasing drop in levels of solidarity regarding the issue of refugees in Europe. However, it also implies an opportunity to rethink and refocus on the basic principles of human rights and the values of the EU. It may be possible to resolve it through a ‘two-­speed’ or ‘multi-­speed’ Europe as in other policies, with appropriate incentives for countries that finally participate in a distribution mechanism based on solidarity. Another option is a division of tasks (‘job-­sharing’), where the countries on the external borders permanently act as a hub for admitting, redirecting and returning possible refugees, while states in the centre and the north work more with integration. In view of the upcoming elections in important member states and the clear polarisation of public opinion, stronger supranational control of EU refugee and migration policy seems unlikely, although recent individual policies, giving the European Border and Coast Guard (former Frontex) and the European Asylum Support Office (EASO) as fully fledged EU agencies more coordinated competences, indicate a possible move in this direction. In a system with a more supranational approach, in which the EU could overcome its fragmentation and control the movement of refugees effectively and in line with international law, EU policy could even help improve global protection of refugees. Although a certain renationalisation of asylum policies and increasingly restrictive policies may lead to more convergence of asylum and refugee policies, recent tendencies have to be examined in detail, especially with regard to the consequences these latest tendencies may have for the guarantees of international protection.

Conclusions All in all, asylum policies in the EU have been characterised by a fast communitarisation in political decision-­making, although implementation of the commonly decided rules still relies on the member states. This has led to a gap between common standard setting and a lack of standard implementation and thus a wide difference of reception, procedures and recognition rates between the member states. These differences also resulted in a huge difference in the numbers of asylum seekers among the member states during the so-­called refugee crisis in 2015 and 2016. 299

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Policies have further shifted from the Justice and Home Affairs towards external policies, and from protecting persons in need to preventing these persons from reaching the territory of the member states. However, the focuses on ‘burden sharing’ or ‘solidarity and shared responsibility’ among the member states still represent one of the main conflicts. The political polarisation stemming from this conflict, however, does not remain in the asylum area alone, but expands to endanger fundamental achievements of the EU like free movement of goods and persons, and thus the common internal territory. Academic research will have to follow these tendencies closely and in responsible interaction with politics. Also, the CEAS and its currently debated reforms might have a strong ‘ripple effect’ (Lambert et al. 2013) beyond the EU and on international or global policy making. A revision of international law might be debated, especially when it comes to distinguishing refuge from migration. Although international law seems to clearly distinguish between the two concepts, international development shows that root causes have changed significantly since the coming into force of the 1951 Refugee Convention and the 1967 New York Protocol. It is particularly the change in generalised and gender specific violence that has replaced the former individual or group-­specific persecution which formed the basis for the Geneva Refugee Convention. Destruction of economic and/or ecologic livelihoods has not yet been included into the current refugee protection system. Migration and refuge overlap, trigger one another or follow each other in sequence; and mixed migration flows are the rule rather than the exception on the main refugee routes. Migrants and refugees, more often than not, literally sit in the same boat, as both groups largely depend on smugglers or even traffickers. We still lack approaches and concepts on how to unbundle refuge from migration in a sense that grants refugees protection, fulfils migration-­related interests of receiving countries, and respect and secure rights of migrants and refugees. This is even more important as recent trends show that the numbers of migrants or of mixed migration flows are increasing considerably. This is also where international and interdisciplinary research should come together in a near future, combining the study of root causes, triggers for people to seek refuge in other countries and triggers for secondary migration, the effects of asylum standards in countries of first reception, the study of international relations, peace and conflict as well as ethnology and development or area studies. EU scholars may profit, therefore, from studies realised abroad and vice versa.

References Attinà, F. (2016) Migration Drivers, the EU External Migration Policy and Crisis Management, Romanian Journal of European Affairs 16(4), December, pp. 15–31. Bendel, P. (2016) Refugee Policy in the European Union – Protect Human Rights!, WISO-­Diskurs 03/2016, Bonn. http://library.fes.de/pdf-files/wiso/12405.pdf. Bendel, P. (2017) EU Refugee Policy in Crisis: Blockades, Decisions, Solutions, # 2017 Plus Politics for Europe, Bonn. http://library.fes.de/pdf-files/wiso/13536.pdf. Bendel, P. and Ripoll Servent, A. (2018) Asylum and refugee protection: EU policies in crisis’, in Ripoll Servent, A. and Trauner, F. (eds) Routledge Handbook of Justice and Home Affairs Research, London, pp. 59–70. Bendel, P., Ette, A. and Parkes, R. (2011) The Europeanization of Control: Venues and Outcomes of EU Justice and Home Affairs Cooperation, Münster. Betts, A. and Collier, P. (2017) Refuge: Transforming a Broken Refugee System, Oxford. Bokshi, E. (2013) Refugee Resettlement in the EU: The Capacity to Do it Better and to Do it More, KNOW RESET RR 2013/04, Robert Schuman Centre for Advanced Studies, San Domenico di Fiesole (FI). Bonjour, S., Ripoll Servent, A. and Thielemann, E. (2017) Beyond Venue Shopping and Liberal Constraint: A New Research Agenda for EU Migration Policies and Politics, Journal of European Public Policy 25(3), pp. 409–421. Bordignon, M. and Moriconi, S. (2017) The Case for a Common European Refugee Policy, Bruegel Policy Contribution, Issue 8. http://bruegel.org/2017/03/the-case-for-a-common-european-refugee-policy/.

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Politics of international protection Czaika, M. (2009) Asylum Cooperation among Asymmetric Countries: The Case of the European Union. European Union Politics 10(1), 89–113. Collett, E., Clewett, P. and Fratzke, S. (2016) No Way Out? Making Additional Migration Channels Work for Refugees, Migration Policy Institute Europe, Brussels, March. Costello, C. and Mouzourakis, M. (2016) The Common European Asylum System – Where Did it All Go Wrong?, London. de Bruycker, P. (2004) The Emergence of a European Asylum Policy/L’émergence d’une politique européenne d’asile, Brussels. de Bruycker, P. (2005) Immigration and Asylum Law of the EU: Current Debates/Actualité du droit de l’immigration et de l’asile en Europe, Brussels. ECRE, Forumréfugiés, Cosí, Hungarian Helsinki Committee, Irish Refugee Council (2013) Not There Yet: An NGO Perspective on Challenges to a Fair and Effective Common European Asylum System, aida Annual Report 2012/2013, Brussels. El-­Enany, N. and Thielemann, E. (2011) The impact of EU asylum policy on national asylum regimes, in Wolff, S., Goudappel, F. and De Zwaan, J.W. (eds) Freedom, Security and Justice after Lisbon and Stockholm, The Hague, pp. 91–117. European Migration Network (EMN) (2016) Resettlement and Humanitarian Admission Programmes in Europe – What Works?, Brussels. Fundamental Rights Agency (FRA) (2015) Legal Entry Channels to the EU for Persons in Need of International Protection: A Toolbox, Vienna 2. Guild, E. (2007) Security and European Human Rights: Protecting Individual Rights in Times of Exception and Military Action, Wolf. Guild, E. (2009) Security and Migration in the 21st Century Polity, Cambridge. Guild, E., Costello, C. and Moreno-­Lax, V. (2017) Implementation of the 2015 Council Decisions Establishing Provisional Measures in the Area of International Protection for the Benefit of Italy and Greece, European Parliament, Directorate General for Internal Policies, Policy Department C: Citizens’ Rights and Constitutional Affairs, Civil Liberties, Justice and Home Affairs, PE 583 132. Guiraudon, V. (2000). European Integration and Migration Policy: Vertical Policy-­making as Venue-­ Shopping, Journal of Common Market Studies 38(2), 251–271. Hailbronner, K. (2000) Immigration and Asylum Law and Policy of the European Union, The Hague/London/ Boston 2000. Hollifield, J. (1992) Immigrants, Markets, and States: the Political Economy of Postwar Europe, Cambridge. Huysmans, J. (2006) The Politics of Insecurity. Fear, Migration and Asylum in the EU, London. Joint NGO Statement (2016) Joint NGO Statement Ahead of the European Council of 28–29 June 2016. NGOs Strongly Condemn New EU Policies to Contain Migration, no place of publication. www. oxfam.de/system/files/eu-migration-joint-ngo-statement-with-signatories.pdf. Keudel-­Kaiser, D., Monina, G., Giuliana Monina, G., Scholdan, B. and Wladasch, K. (2016) A New Asylum Policy for Europe?! Opting for a Rights-­Based Approach and What This would Mean, Ludwig Boltzmann Institute of Human Rights, Vienna, June. Lambert, H., McAdam, J. and Fullerton, M. (eds) (2013) The Global Reach of European Refugee Law, Cambridge. Lavenex, S. (2006) Towards the Constitutionalization of Aliens’ Rights in the European Union?, Journal of European Public Policy 13(8), 1284–1301. Macklin, A. (2013) A safe country to emulate? Canada and the European refugee, in Lambert, H., McAdam, J. and Fullerton, M. (eds) The Global Reach of European Refugee Law, Cambridge, 99–116. Maes, M., Foblets, M-­C. and de Bruycker, P. (eds) (2011) External Dimensions of EU Migration and Asylum Law and Policy, Brussels. Roos, C. and Zaun, N. (2014) Norms Matter! The Role of International Norms in EU Policies on Asylum and Immigration, European Journal of Migration and Law 16(1), 45–68. Thielemann, E.R. and Armstrong, C. (2013) Understanding European Asylum Cooperation under the Schengen/Dublin System: A Public Goods Framework, European Security, 22(2), 148–164. Thielemann, E.R., William, R. and Boswell, C. (2010) What System of Burden-­Sharing Between Member States for the Reception of Asylum Seekers? Study Requested by the European Parliament’s Committee on Civil Liberties, Justice and Home Affairs, Brussels. Trauner, F. and Ripoll Servent, A. (2016) The Communitarization of the Area of Freedom, Security and Justice: Why Institutional Change Does Not Translate into Policy Change, Journal of Common Market Studies 54(6), 1417–1432.

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Petra Bendel United Nations (2015) General Assembly, Human Rights Council, Twenty-­ninth Session, Report of the Special Rapporteur on the Human Rights of Migrants, François Crépeau, Banking on Mobility over a Generation: Follow-­up to the Regional Study on the Management of the External Borders of the European Union and its Impact on the Human Rights of Migrants, A/HRC/29/36, 8 May 2015. UNHCR I2010) Improving Asylum Procedures. Comparative Analysis and Recommendations for Law and Practice. A UNHCR Research Project on the Application of Key Provisions on the Asylum Procedures Directive in Selected Member States, Brussels, March.

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24 Does European refugee policy exist? Regional dimensions of the refugee protection approach in Europe Joanne van Selm Headline writers talk of a European, or at least a European Union, refugee policy: Some recent examples include: ‘EU refugee policy marks progress, not success’ (Al Jazeera, 2016); ‘UNHCR calls for extensive reform of EU’s refugee policy’ (eKathimerini, 2016); ‘EU needs to rethink its refugee policy’ (Deutsche Welle, 2014). Yet closer analysis gives rise to the question ‘Does European refugee policy exist?’ That is the central question for this chapter. This Handbook focuses on three main themes: the state of research into migration issues across Europe; the power plays surrounding migration; and the question of whether there is a form of ‘European exceptionalism’ at play. As such, there are three sub-­questions for this chapter: Does the research community handle refugee policy issues as a matter of ‘European’ policy and concern? Which actors deal with the refugee issue as being one of European interest? Does the EU in particular, and Europe more broadly, treat its approach to refugee policy as a manifestation of a specific, and exceptional, European character? The question of whether there is a European refugee policy is largely conceptual. What might ‘European’ mean in this context? Is it all states in Europe individually or collectively; or is it a policy upheld specifically by the European Union (EU) and/or its Member States? What exactly does a ‘refugee policy’ entail? Is there a clear overlap with ‘asylum policy’? If not, which other policy areas are involved? How do, could or should they fit together? If we can establish the ‘who’ and ‘what’ elements of this conceptual line of questioning, then we need to move on to whether such a policy has a legal basis, is politically accepted and whether it has institutional foundations for implementation. In a 2005 UNHCR Working Paper I argued that there was no such thing as a ‘European refugee policy’ – in fact, most European states at that time did not have a ‘refugee policy’ at all. They had an asylum policy, and the EU Member States among them were working on harmonizing those policies with the goal of a Common European Asylum System, but there was no European asylum policy as such, and certainly no clear ‘refugee policy’ (van Selm, 2005). The question remains pertinent, and the answer, more than a decade later, is probably that while many states are coming closer to a ‘refugee policy’ and the elements of that are emerging for Europe as a whole, there is still not really a ‘European refugee policy’ on paper or in actions. Yet, the discussion of the need for a European approach to refugee issues persists. The question is therefore not only whether there is a European refugee policy, but also why, if the appeal to create one is so strong, there has not been more success in achieving this. 303

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This chapter reviews the existing literature and major debates, discussions and positions taken on this topic. The questions to be covered include whether, by its very nature, the refugee protection system is ‘European’; what ‘refugee policy’ really means; what the European approach to the refugee policy is and what ‘European’ means in this context. The current situation will be sketched, and attention paid to potential ways forward. In concluding the review of the current status of refugee policy thinking in Europe, the author will address the central theme of the Handbook – that is, the question of whether some kind of ‘European exceptionalism’ is at play in the politics of refugee protection in Europe.

Is all refugee protection ‘European’? One could argue that the current international refugee protection regime, centred on the 1951 Convention Relating to the Status of Refugees (UNGA, 1951), the 1967 Protocol to that Convention (UNGA, 1967) and the Statute of the United Nations High Commissioner for Refugees (UNHCR) (UNGA, 1950), is to a large extent based on what could be termed traditional European values: human rights, rule of law, and a pragmatic understanding of the need for individuals to be protected by a nation-­state within the global system. This regime began as a European construct, following the displacements on the continent during World War II and building on the legacy of the International Refugee Organization, and earlier situation-­specific approaches. (See Orchard in this volume). There are two ways in which protection regime became more universal during the 1960s and 1970s. People seeking protection were leaving more countries, particularly in Africa and in Asia, whether remaining in their region or travelling further, for example, to Europe. These displacements were largely a result of decolonization and independence, as well as intra-­regional conflicts and ethnic conflicts or civil wars. Other regions started to adapt protection models and understandings (such as the 1969 OAU Convention on the Status of Refugees and the 1984 Cartagena Declaration in Latin America), and an increasing number of states became signatories to the 1951 Convention and its 1967 Protocol. In sum, on an institutional level a Europe-­focused approach in the 1940s and early 1950s became a ‘universal’ regime in 1951, still focused on European situations, but with broader definitions. Over time, it became global in scope and application. Does that mean the international refugee regime is ‘European’? It would be hard to argue that there was no European basis to the international or universal refugee protection regime (see Orchard, this volume). However, European states are among those whose politicians, media and populations most question and challenge the breadth of the refugee regime, and the standing of international law in this area, and have done so for almost two decades (see Chimni, 1998; UNHCR, 2000; ABC, 2015). Providing shelter, safety and protection to people in need is in no way exclusively European. Modern discussions of refugee protection tend to centre on notions that are considered to be fundamentally part of a European values system and political and legal framework. One question then is whether if European countries turn away from the essential tenets of refugee protection, are they turning away from their own identity?

What is refugee policy? Terminology in the world of displacement, and migration, often seems very fluid in its popular, and even expert, use. However, for the situations of the millions of people who leave their homes and homelands each year, precision is vital for their treatment. It is easy to expansively talk of ‘refugee policy’ while actually meaning ‘policy regarding who will be granted asylum in 304

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our country’. Indeed, in many cases the broad term ‘refugee policy’ or ‘refugee law’ is used effectively as a synonym for ‘asylum policy’ or ‘asylum law’ in the European context (see Lambert et al., 2013: 3). In fact, a robust ‘refugee policy’ would include the granting of asylum to those included in the definition for that status as just one of at least six strands: • • • • •

•

Asylum policy covers those people claiming refugee status on, or after, arriving in country. Resettlement policy covers the selection of refugees for organized movement to a country’s territory, with refugee status already granted. Humanitarian assistance to refugees and displaced persons covers the administration of aid, direct and indirect, for those people in other countries. Representation of a position in international or multi-­lateral organizations and relations, regarding the treatment of refugees and displaced persons. Potentially, and increasingly, active protection for refugees and displaced persons other than on the country’s own territory. This could be through capacity building for local protection and integration, or through a greater ‘on the ground’ presence. Managing interception and rescue at sea for people who have been displaced.

None of these elements can be fully explored in the limited space available, but it is worth touching on the situation of each in turn. In working out the extent to which European states have the elements of a refugee policy, one can say clearly that European states all have an asylum policy, and indeed the EU approach to its own broader region is to encourage all neighbouring states to develop an asylum system, if one does not already exist, and strengthen it if it does (Lavenex and Ucarer, 2002). Similarly, European states and the European Commission have all been represented in discussions on various aspects of work on migration, displacement, asylum and refugee protection in international forums. The Scandinavian countries, as well as the Netherlands (with a pause) and the UK (although for a time it had switched to a very minimal programme) have a history of resettlement, and have been joined in recent years by Germany, Spain, Portugal and Ireland (see ERN, 2016). All of these resettlement programmes are much smaller than the annual asylum seeker arrival numbers for the countries in question (in contrast to the US, Canada and Australia). Expanding resettlement across all EU Member States faces challenges in perceptions towards refugees and immigration generally, particularly as the notion of inviting refugees in and managing their arrival flies in the face of some of the anti-­foreigner rhetoric common in the current political debate (Jakulevič ienė and Bileišis, 2016). Nonetheless, an active and robust resettlement policy is a key element in a genuine refugee policy. The European states, particularly those of Western Europe, have long-­standing commitments to humanitarian assistance, including for displaced persons and refugees. However, this assistance – whether financial or technical, direct or via international organizations – has rarely been framed as part of a refugee policy, but rather as part of foreign aid or development programmes (see Branczik, 2004). This has also been the case for the European Commission Humanitarian Office (ECHO), that only recently became involved for the first time in assisting asylum seekers in an EU Member State – specifically, Greece (ECHO, 2016). The European Commission developed Regional Protection Programmes in 2005, in Eastern Europe (Ukraine and Belarus), the Great Lakes, Horn of Africa and North Africa, and later in 2013 with the Regional Development and Protection Programme in response to the Syrian crisis. The earlier projects in particular were intended to focus on kick-­starting a broader European refugee policy, but they failed to have this impact (see GHK, 2013: 10; ECRE, 2015). 305

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These efforts have sought to support capacity building in the specified areas, to encourage states in the region to strengthen their refugee protection capabilities, and focused on durable solutions. They can clearly be seen as part of the European Commission’s efforts to support asylum policy coordination by undertaking broader refugee policy efforts. However, there seems to have been a lack of strong strategic direction to fully engage all state actors and proceed further in this direction (GHK, 2013). European countries have occasionally floated proposals for some kind of protection for refugees ‘off-­shore’, though this has not really moved from concept to reality in more than two decades of suggestions, other than in failed efforts such as those of creating ‘safe areas’ in Bosnia in the 1990s. Carrera and Guild (2017) trace the history to the Blair Proposal of 2003 and its re-­emergence over time. As they say, A fundamental reason why these past proposals have not been successful relate to the following questions: can the offshoring of responsibility over asylum seekers be consistent with the member states’ human rights obligations? What challenges will these proposals face and can they be seen as an alternative to irregular entry of asylum seekers into the Union? (Carrera and Guild, 2017: 2) The proposals generally replicate, to some degree, the Australian approach of processing asylum seekers outside of their desired destination. To a certain extent, the EU–Turkey migration deal, and subsequent efforts to create similar agreements with some African countries, starts to establish such an approach. However, organizations such as Human Rights Watch point out that the Australian approach is no model for Europe, being costly, temporary and requiring massive diplomatic capital (Garcia Bochenek, 2016). Others point to both the scale of the asylum arrivals (being much larger for Europe than for Australia) and the challenge to core values as reasons for which Europe should tread very carefully in seeking inspiration on off-­shore processing (Pascouau, 2017). Finally, the European states have certainly, individually and collectively, including through Frontex, increased their involvement in search and rescue for migrants travelling by sea. Boats of migrants will most frequently include at least some who seek protection through asylum. However, this approach remains under consideration for factors such as whether it encourages smuggling, and indeed has given rise to less caution on the part of both smugglers and those travelling, who view the entry point to Europe now as being the rescue onto a European boat at sea (Newland et al., 2016). In sum, while some European states are getting closer to a refugee policy, it is hard to say that any have a policy with a refugee focus, rather than an asylum policy, with some resettlement, all within an immigration context that is dominated by a non-­entry approach. Such a ‘Fortress Europe’ focus might, in a sense, be said to be a ‘European’ approach to refugee issues. The question however is: What is meant by European in this context?

What do we mean by ‘Europe’ in the context of refugee policy? A core, but circular question in trying to work out whether there is, or should be, a European refugee policy is whether the refugee policy issue requires a regional approach or whether because there is a regional approach on so many other issues, there must be a European policy on refugee issues. If European integration has led to a situation in which the crossing of the border of one Member State is equivalent, for practical and legal purposes, to the crossing of all 306

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borders, then there has to be a common approach to the people who cross, or might cross, any external EU border. However, the legal situation of a refugee or asylum seeker in one Member State is not equal to that of a similar person in another Member State. If a person enters one Member State they have not, at the point of entry, really entered all. Unless they are in the UK or Ireland, they have entered the Schengen space in which they are unlikely to have their papers checked, and so could effectively turn up in another Member State, and request asylum there. EU Member States have sought to create clarity and rules, whereas arguably what they have needed is primarily trust and respect (van Selm, 2016a). Institutionally, the EU is not the only European body to have worked on asylum or refugee issues. The Council of Europe has also worked extensively on the subject and associated areas of human rights (see van Selm, 2005). Discussions have been possible in the Council of Europe Assembly probing further into challenging issues and setting out possible paths that are more ambitious and rights-­minded than those pursued by Member States in the EU context (see Council of Europe, 2014). Perhaps this is because the results do not become laws and regulations that states must follow? The European Convention on Human Rights, developed under the Council of Europe, and with recourse to the European Court of Human Rights, is, however, a European body of law that can be called upon by asylum seekers, particularly its Article 3 prohibition on torture and inhumane or degrading treatment. Many cases have been resolved, and refoulement (return to a country where persecution might take place – article 31 of the 1951 Refugee Convention) averted after recourse to the European Court of Human Rights. The Council of Europe has had two broad impacts in Europe. First, it has offered an institutional setting in which creative thinking on protection can be discussed and developed (for example, Temporary Protection for former Yugoslavs in the early 1990s). Second, the discussions and any approaches developed cover not only the EU Member States but also other European states which are key ‘safe countries’ as far as the EU is concerned, presumed to offer effective protection and places to which asylum seekers can be returned if they transited en route to the EU. However, when it comes to a legal basis for a European refugee policy, and political cooperation in a more binding sense, the EU is most often looked to. Within the EU, the Council of Ministers, representing each Member State, makes the regulations and decisions relating to asylum and other refugee policies. The European Commission tables proposals. These are frequently ambitious in nature, but result in more restrained directives following negotiations in Council. The European Parliament’s role is that of co-­legislator, advancing its opinion on matters to be decided in co-­decision. As such, the Member States, rather than the regional institutions, play the decisive role. However, Denmark does not participate in European policy on Justice and Home Affairs, including asylum matters, and the UK and Ireland follow an ‘opt in’ approach participating on an issue by issue basis. As such, EU policy on asylum and refugee issues cannot, geographically, be said to be fully European, nor does it even cover all Member States. During the ‘Migrant Crisis’ starting in 2015, the call has often gone out that this is a ‘European Crisis’, requiring a ‘European Response’ (see The Economist, 2016a). This same call went out regarding Bosnians in the mid-­1990s and Kosovars in 1999 (see van Selm, 2005). Many migrants first arrive in Europe in one country, and might cross several more, before arriving in the European country in which they intend to stay. For the migrant, a country is a country, and arriving in Greece or Italy, while intending to travel to Germany, Sweden or the UK, is just part of the journey. For EU Member States, with freedom of movement in a frontier-­free zone, it has long been the case that an asylum seeker (or refugee, once status has been determined) entering one of the 307

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EU states is effectively entering all of them. That is the fundamental reason for cooperation on and harmonization of asylum policies. The European starting point is that a national policy on asylum in a frontier-­free Europe is only as strong and workable as the border policies of other Member States allow it to be, and that all Member States need to face asylum requests equally, otherwise those that are out of line might attract more, or let in more, asylum seekers. Thus EU and other rules and regulations intended to manage migration from a state and regional perspective do not necessarily coincide with the individual’s hopes and expectations. EU Member States, as well as Switzerland, Norway and Iceland, have been part of the ‘Dublin System’ determining which state is responsible for an asylum claim. That system has been put under serious pressure in the Migrant Crisis, and was suspended by some states for a period of time. The European Commission has put forward proposals for its reform (European Commission, 2016c). Whether refugee policy, or the elements of it, are ‘European’ or not is clearly a question of both law and politics. There are EU level laws (directives and regulations) guiding some aspects of asylum policy, such as who is defined as a, or qualifies to be, a refugee or person in need of protection; what the procedures for deciding that should look like; the type of conditions in which asylum seekers should be received and live during the initial phase of their residence and status determination procedures; which state is responsible for assessing a claim; how temporary protection should be applied (European Commission, 2016a). It is up to the Member States to transpose those laws and implement them, and the European Court of Justice (ECJ) and European Commission to rule if there are apparent violations. So there is a body of EU law governing at least the asylum aspects of refugee policy. However, the EU has chosen not to activate Temporary Protection, for example, even though it is an EU Directive, and could potentially have been applied to Syrians in 2015, with the aim of relieving pressure and stemming the flow (van Selm, 2015; Council Directive, 2001). In addition, the Council has reached decisions on issues such as relocation for asylum seekers and refugees who have arrived in EU Member States, but these have seen little follow through in practice (European Commission, 2016d). The Economist (2016b) noted in an editorial in February 2016 that ‘The flow of refugees would have been manageable if European Union countries had worked together, as Angela Merkel, Germany’s chancellor, has always wished (and The Economist urged). Instead Germany and Sweden have been left to cope alone’. The editorial goes on to suggest that Europe should soon ‘restore order’, otherwise the EU will fall apart as a consequence of a migrant free-­for-all resulting in a need for states to act unilaterally to close borders, rather than acting collectively to manage them. This line suggests that for policy to be ‘European’ there is a need for collective action. However, one could also argue that a policy based on European values would be more open and welcoming to refugees, who have suffered the impacts of conflict and human rights abuses. This was the point made by French Foreign Minister, Laurent Fabius, when he said of the fences being erected in Hungary: ‘Europe has values and these values are not respected by putting up wire fences’ (Euronews, 2015). Finally, for the purposes of this chapter, in considering what ‘European’ means, it is also useful to ask how culture and history impact the ways in which refugee policy is formulated and implemented. In focusing on the European Union as the organization which develops pan-­ European law it is easy to exclude non-­Member States, but also easy to overlook the various geographical, political and historic dichotomies. The most obvious of these is the East–West divide: from the inception of the current international refugee regime until 1989, Eastern Europeans were the people most prominently thought of, certainly by West European policy makers, as candidates for refugee status. The 308

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1951 Convention was a Cold War construct, to cover people persecuted under Communism and fleeing to the West, usually as individuals or in small groups, but also to cover larger exoduses (such as of Hungarians in 1956 or Czechoslovaks in 1969), which challenged Western Europe’s ability to cope. Eastern European countries have gone, in a relatively short space of time, from being source of refugees, through being considered ‘safe’, to becoming part of the EU/Schengen system in some cases, or working on applications for membership in others. With the 2015 crisis, as well as the series of terrorist attacks on various EU Member States during 2015–2017, several states have reinstated border controls, at least temporarily, and stand out for their opposition to the influx of refugees and migrants (ECFR 2016). Although the East–West dichotomy is most obvious, there are three more: North–South; states with sea borders and those that are landlocked, and the states with external EU borders versus those with only EU frontiers. These divisions and their consequences often overlap – so a historically less prosperous Southern European state with primarily maritime external borders is likely to have more difficulties enforcing arrival controls than a more Northern (i.e. distant), primarily landlocked, prosperous country – yet the latter is more likely to attract people looking for a long-­term protection solution. As such, a ‘European refugee policy’ would need to manage the arrival of people seeking protection in one part of Europe, not necessarily the part in which they initially arrive, and handle their expectations as the protection for them might only be available in a third part of the continent. In the North–South divide, we see the implications both of geography and of longer-­standing prosperity. The countries of Northern Europe are more often viewed as magnets for immigrants and refugees, whereas those of the South (Greece, Italy, Spain in particular) are thought of rather as entry and transit countries. This is far from being always a hard and clear line. However, for the EU Member States part of the political history has been one of the Northern countries seeking both stronger border controls in Southern Member States, and that Southern Member States deal with asylum claims and long-­term protection themselves, rather than allowing people to transit and claim asylum in the North. European countries with maritime borders, most particularly those in the South, have become the most exposed to irregular arrivals, as sea borders are much more difficult to manage and control than either airports or land crossings. Member States with external EU borders, particularly those with countries whose history, culture, politics and contemporary paths might differ significantly with those of the EU and what might be called ‘core European’ states, obviously also face quite different challenges in managing entries than those states with only EU or strong European partners on the other side of their national boundaries. One of the challenges for the EU in particular, but actually Europe as a whole, is negotiating a refugee policy that not only puts the humanitarian at its heart (rather than immigration, integration and border concerns) but also accommodates the very varied situations of the participant states. It might be ‘ideal’ if European states could wipe the slate clean and simply create a refugee policy that suits today’s needs, with Europe at the centre, rather than bringing along the baggage of at least the past 60 years of immigration and asylum issues on the national level. However, the reality is that negotiations of a European approach are based on the context of each distinct national approach: a refugee simply does not arrive in Europe, by whatever means, but arrives in a nation-­state with its own policy approach. That national approach might be guided by European rules and discussions, but that is the extent to which it can be called ‘European’. Bordignon and Moriconi (2017: 1) point out that the current system of fundamental differences between Member States on essential issues such as how resettled refugees are welcomed, totally different outcomes in asylum procedures for people coming from the same situations and requesting protection in different EU Member States and others, are ‘not only inequitable, but 309

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also inefficient’. They note that politics and culture alone explain the reluctance and discrepancies in accepting refugees within the EU. They suggest that financial compensation for those taking refugees, coming from those reluctant to be hosts, is the optimal route. It could be argued, however, that paying for another state to take the refugees you do not want is actually un-­European, if indeed Europe is based on rights and humanitarianism, and if the aim is to have European states live up to a European approach. Or, perhaps politics and culture prevent the welcoming Member States from accepting that other states to pay them for offering protection to refugees? These issues, and the balance between them, underlie many current European debates on refugee policy, including relocations from Greece.

What is the current state of ‘European refugee policy’? Oltmer highlights two key features of current European refugee policy: it is built on the myth of an ‘invasion’ by migrants from developing countries, with immigration portrayed as negative for society (Deutsche Welle, 2014). Facts, however, portray different reality. For example, 90 per cent of immigrants to Germany are European, and 80 per cent are EU citizens. Of the 10 per cent who are not European, not all are from developing countries, and even of those, not all are refugees, or asylum seekers (Deutsche Welle, 2014). McGowan has noted the rapidly increasing trend in using EU foreign policy and development aid tools to address migration issues, with efforts underway not only in Turkey, but also Afghanistan, the Middle East and several African states (McGowan, 2016). European refugee and migration policy is being driven a) by a focus on non-­arrival in the EU and b) using foreign policy tools to avoid the need to employ the asylum system (Gammeltoft-­Hansen, 2014; Frelick et al., 2016). However, the number of arrivals remained high. People might be using different routes, and might not be coming from the same places of origin or transit, but people were still arriving, or failing in the attempt and drowning at sea (IOM, 2016). One of the most dramatic recent forms of EU refugee policy has been the EU–Turkey deal of March 2016 (European Council, 2016). Widely predicted to fail (see Greene and Kelemen, 2016; van Selm, 2016b; Verhofstadt, 2016), the EU has largely claimed it to be a success (European Commission, 2016b) even if other states have been more dubious (Nielsen, 2016). Those claims of success are based on reduced arrivals to Greece and fewer known tragedies at sea between Turkey and Greece. However, arrivals on other routes, particularly into Italy, have, predictably, risen. The EU is seeking to extend the Turkish-­deal model through agreements with various countries, although, as Greene and Kelemen (2016: 3–4) argue: The EU cannot wish away these problems by trying to outsource its migration policy to leaders in developing countries. If the EU wants to restore free movement within the Schengen area, end the humanitarian catastrophe in the Mediterranean, and stay true to its values, it must introduce more profound reforms. A particularly egregious example of EU refugee non-­arrival policy trumping European values was the case of the EU ‘pressuring Greek authorities to reshape the asylum appeals board that had blocked deportations and to put in place a new board that would allow them’ (Greene and Keleman, 2016: 5–6). Therefore, the current European (or EU) refugee policy seems to conceptually be in a place where there is support for non-­arrival in Europe, particularly not within mixed flows, and the effort is put to have governments in countries of origin and transit keep people there, deterring them from travelling to Europe. Meanwhile, European authorities are being adapted to find it 310

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appropriate that those who do arrive on European soil can be deported, regardless of humanitarian need or their human rights. The question is: how did Europe arrive in this situation? The larger answer would require a divergence into populist discourse and the emergence of extreme right parties and xenophobia over the past two decades. The more detailed and specific response can be found in the spiral of the development of the EU’s Common Asylum System. Battjes et al. (2016) succinctly describe the fault line of the development of the EU Common Asylum System which has contributed to a situation of crisis proportions in which people seeking asylum were initially not in a position to get to EU Member States, or their associates under various agreements such as Schengen, and then, in desperation, turned to smugglers to achieve their goal of safety and security. As Battjes et al. (2016: 3–6) describe, the EU Member States first established a common list of countries of origin for whose nationals a visa would be required. This list included all refugee-­producing countries, meaning that an asylum seeker effectively could not legally arrive in an EU Member, or Schengen, State. Airlines were co-­opted to ensure that such people could not arrive by air. So asylum-­seeking journeys had to take place over land or by boat. The EU/Schengen states next developed a list of safe third countries, countries to which asylum seekers or irregular migrants could be returned because their safety could be assumed in those countries. That list included all countries bordering the EU/Schengen zone. Whether people could gain effective protection in those States or not should have been material to the ‘safe’ designation, but was more or less presumed, regardless of number or influx rate. That left the sea route, which became, in 2015, the route of choice for Syrians who had sought refuge in Turkey, Lebanon and Jordan, but, after four or five years in ever-­growing camps or desperate urban situations, without the ability to fully exercise rights to work and study, were growing desperate. As resettlement opportunities for Syrians – a key component of a full refugee policy – were, and remain, minimal in comparison to the number needed (see van Selm, 2016c), the options for individuals were limited. In other words, while the conflict in Syria, and absence of solutions to the fighting, were the proximate cause of the displacement, the absence of a European refugee policy, including opportunities for resettlement and the ability to safely seek asylum, contributed to the Migrant Crisis of 2015 onwards, which in turn has disrupted not only the European efforts to cooperate on migration policy, but also the fundamental underpinnings of the EU project, in particular freedom of movement within the EU territory.

Is there a European exceptionalism at play in refugee policy? As noted above, a key theme of this Handbook is the question of whether migration and refugee policy in Europe is based on a ‘European exceptionalism’. The preceding paragraphs would seem to suggest that there is. However, one could argue that it is a complicated, and at least two-­sided, exceptionalism. On the one hand, there is the belief in Europe as an exceptional target of asylum seekers. This belief could be characterized as follows: Europe is a prosperous and peaceful continent, conveniently located within easy distance from less developed, and less peaceful Africa; an unsettled Middle East, and with wider Asia, frequently inhospitable to minorities as well as conflict prone, also on a land route. While the other continents of prosperity (i.e. North America and Australia) are geographically distant from the hotbeds of conflict and poverty, Europe is right there. Man-­made barriers to entry are therefore necessary to hold back the masses of displaced (not to mention economic migrants who are often involved in mixed flows with asylum seekers and complicate the issue further). 311

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On the other hand, there is the fundamental belief in values, a rights-­based and humanitarian system that underpins the social, cultural and political existence of Europe as a peaceful continent. The notion that everyone’s rights should be upheld is, to an arguable degree, ingrained. The contradiction comes in the question of where they should be upheld. This can be characterized along the lines of: Once people arrive in Europe, their rights must be guaranteed there – but, as there are limits, it would be better to have their rights upheld somewhere else, either where they come from, or in a neighbouring country. One could argue that the underlying tension in approaching a European refugee policy is entirely based on the confluence of these two forms of exceptionalism. Only exporting European values and paths to prosperity will prevent ‘everyone’ trying to get to Europe to enjoy peace and a good level of socio-­economic satisfaction there.

What could European refugee policy become? By way of Conclusion, it is useful to ask what European refugee policy could become. First, is it possible for there ever to be a really European, really refugee, policy? The answer to that has to be ‘yes’ – if there is political will to have such a policy. Could it be pan-­European in the fullest sense? That would again depend largely on political will. It would also depend on the degrees of sovereignty over such a policy’s implementation that would be claimed by an over-­arching, supra-­national institution, including both on the day-­to-day decision level, on appeals and on the judicial system of review. The more a European institution would have jurisdiction, the more likely it would need to be part of the EU construct, thereby excluding non-­Member States, except through cooperation agreements. If, on the other hand, it were to mean European coordination of national policies, the Council of Europe could also be a setting for such an approach. Would European states contemplate a full ‘refugee policy’? The answer here might be that they are increasingly doing so, with increased numbers of resettlement places and cooperation agreements with countries in the regions of origin or first asylum, and greater cooperation between ECHO and Justice and Home Affairs in the European Commission, for example. However, the predetermining factor for Europe’s politicians is still emphatically on refugee policy as part of immigration policy, not as part of a global approach to the significant displacement problems, only a very small proportion of which involve people seeking asylum in European states. Thus, achieving either a European policy on refugees, or a refugee policy which is European is a mountain to climb, if the political players, the populations they represent and the institutions they have created are willing to take that route. Perhaps a final question in this thought process has to be: if handling asylum and refugee issues as first and foremost about immigration to a nation-­state seems to have failed or be disappointing, might it be worthwhile to consider an alternative path?

References ABC (2015) Europe migrant crisis: Denmark seeks revision to UN refugee convention, www.abc.net.au/ news/2015-12-28/denmark-seeks-revision-to-un-refugee-convention/7056626 [accessed 30 November 2016]. Al Jazeera (2016) EU Refugee Policy Marks Progress not Success, 26 September 2016, www.aljazeera. com/blogs/europe/2016/09/eu-refugee-policy-marks-progress-success-160928182559405.html [accessed 29 November 2016]. Battjes, Hemme, Evelien Brouwer, Lieneke Slingenberg and Thomas Spijkerboer (2016) The Crisis of European Refugee Law: Lessons from Lake Success, https://papers.ssrn.com/sol3/papers.cfm?abstract_ id=2783247 [accessed 5 December 2016.

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Does European refugee policy exist? Bordignon, Massimo and Simone Moriconi (2017) The Case for a Common European Refugee Policy, Breugel Policy Contribution Issue n 8, http://bruegel.org/wp-content/uploads/2017/03/PC-082017.pdf [accessed 19 June 2017]. Branczik, Amelia (2004) Humanitarian Aid and Development Assistance, www.beyondintractability.org/ essay/humanitarian-aid. Carrera, Sergio and Elspeth Guild, (2017) Offshore Processing of Asylum Applications: Out of Sight, Out of Mind?’ CEPS Commentary, 27 January 2017, http://aei.pitt.edu/83870/1/OffshoreAsylumProcessing.pdf [accessed 9 June 2017]. Cartagena Declaration on Refugees, Colloquium on the International Protection of Refugees in Central America, Mexico and Panama, 22 November 1984, www.refworld.org/docid/3ae6b36ec.html [accessed 21 December 2016]. Chimni, B.S (1998) The Geopolitics of Refugee Studies: A View from the South, Journal of Refugee Studies 11(4): 350–374. doi: 10.1093/jrs/11.4.350-a. Council Directive (2001) 2001/55/EC of 20 July 2001 on Minimum Standards for Giving Temporary Protection in the Event of a Mass Influx of Displaced Persons and on Measures Promoting a Balance of Efforts between Member States in Receiving Such Persons and Bearing the Consequences Thereof, http://eur-lex. europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2001:212:0012:0023:EN:PDF [accessed 19 November 2016]. Council of Europe (2014) Migrant and Human Rights, www.coe.int/t/democracy/migration/ [accessed 21 December 2016]. Deutsche Welle (2014) EU Needs to Rethink its Refugee Policy, 23 April 2014, www.dw.com/en/euneeds-to-rethink-its-refugee-policy/a-17188912 [accessed 19 November 2016]. ECHO (2016) Greece: Response to the Refugee Crisis, ECHO Fact Sheet, December, http://ec.europa. eu/echo/files/aid/countries/factsheets/greece_en.pdf [accessed 19 November 2016]. The Economist (2016a) Forming an Orderly Queue, 6 February, www.economist.com/news/ briefing/21690066-europe-desperately-needs-control-wave-migrants-breaking-over-its-borders-how [accessed 9 December 2016]. The Economist (2016b) How to Manage the Migrant Crisis, 6 February. ECFR (European Council on Foreign Relations) (2016) The Future of Schengen, www.ecfr.eu/specials/ scorecard/schengen_flash_scorecard [accessed 8 December 2016]. ECRE (European Council on Refugees and Exiles) (2015) New Research Takes Stock of EU Regional Protection Programmes and Assesses Their Potential, www.ecre.org/new-research-takes-stock-of-euregional-protection-programmes-and-assesses-their-potential/ [accessed 7 November 2016]. eKathimerini (2016) UNHCR Calls for Extensive Reform of EU’s Refugee Policy, 5 December, www. ekathimerini.com/214324/article/ekathimerini/news/unhcr- calls-for-extensive-reform- of-eusrefugee-policy [accessed 9 December 2016]. ERN – European Resettlement Network (2016) National Resettlement Programmes, www.resettlement. eu/country [accessed 9 November 2016]. European Commission (2016a) Migration and Home Affairs, ‘Common European Asylum System’ (Website with citations of all directives and regulations), https://ec.europa.eu/home-affairs/whatwe-do/policies/asylum_en [accessed 12 November 2016]. European Commission (2016b) Press Release: Delivering on Migration and Border Management: Commission Reports on Progress Made under the European Agenda on Migration, 28 September, http:// europa.eu/rapid/press-release_IP-16-3183_en.htm [accessed 20 November 2016]. European Commission (2016c) Reform of the Dublin System, https://ec.europa.eu/home-affairs/sites/ homeaffairs/files/what- we-do/policies/european- agenda-migration/background- information/ docs/20160504/the_reform_of_the_dublin_system_en.pdf [accessed 15 December 2016]. European Commission (2016d) Refugee Crisis: Increased Efforts on Resettlement and Relocation Must be Sustained, http://ec.europa.eu/malta/news/refugee-crisis-increased-efforts-resettlement-and-relocationmust-be-sustained_en [accessed 7 June 2017]. European Council (2016) EU–Turkey Statement, 18 March, www.consilium.europa.eu/en/press/pressreleases/2016/03/18-eu-turkey-statement/ [accessed 10 November 2016]. Euronews (2015) French Foreign Minister Slams Hungary’s Migrant Fence, www.euronews.com/2015/08/30/ french-foreign-minister-laurent-fabius-slams-hungary-s-migrant-fence/ [accessed 12 September 2016]. Frelick, Bill, Kysel, Ian M. and Podkul, Jennifer (2016) The Impact of Externalization of Migration Controls on the Rights of Asylum Seekers and Other Migrants, Journal on Migration and Human Security 4(4): 190–220.

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Joanne van Selm Gammeltoft-­Hansen, Thomas (2014) International Refugee Law and Refugee Policy: The Case of Deterrence Policies. Journal of Refugee Studies 27(4): 574–595. doi: 10.1093/jrs/feu030. Garcia Bochenek, Michael (2016) For Managing Migration, Australia is No Model for Europe, www.hrw. org/news/2016/12/29/managing-migration-australia-no-model-europe [accessed 19 June 2017]. GHK (2013) Evaluation of Pilot Regional Protection Programmes DG Justice, Freedom and Security, http://ec.europa.eu/smart-regulation/evaluation/search/download.do;jsessionid=KookqLZ6lC3auAZZJAVdr0atunUzG-d2GL-c7FqszHbE79XR2L1!1168777535?documentId=3725 [accessed 12 November 2016]. Greene, Megan and R. Daniel Kelemen (2016) Europe’s Failed Refugee Policy: The Crisis in the Mediterranean Continues, Foreign Affairs, 28 June. IOM (International Organization for Migration) (2016) Missing Migrants Project, https://missingmigrants. iom.int/mediterranean [accessed 12 December 2016]. Jakulevičienė, Lyra and Mantas Bileišis (2016) EU Refugee Resettlement: Key Challenges of Expanding the Practice into New Member States, Baltic Journal of Law & Politics 9(1), www.degruyter.com/ downloadpdf/j/bjlp.2016.9.issue-1/bjlp-2016-0005/bjlp-2016-0005.xml. Lambert, Hélène, Jane McAdam and Maryellen Fullerton (eds) (2013) The Global Reach of European Refugee Law, Cambridge University Press. Lavenex, Sandra and Emek Ucarer (eds) (2002) Migration and the Externalities of EU Integration, Lexington Books. McGowan, Iverna (2016) EU Migration Policy is Cruel and Nonsensical, EU Observer, 12 December, https://euobserver.com/opinion/136237 [accessed 11 December 2016]. Newland, Kathleen, Elizabeth Collett, Kate Hooper and Sarah Flamm (2016) All at Sea: the Policy Challenges of Rescue, Internation, and Long-­Term Response to Maritime Migration, Migration Policy Institute (September 2016). Nielsen, Nikolaj (2016) Egypt Blames EU–Turkey Deal for Refugee Spike, 31 August, EU Observer, https://euobserver.com/migration/134829 [accessed 20 December 2016]. Organization of African Unity (OAU) (1969) Convention Governing the Specific Aspects of Refugee Problems in Africa (‘OAU Convention’), 10 September, 1001 U.N.T.S. 45, www.refworld.org/docid/3ae6b36018. html [accessed 21 December 2016]. Pascouau, Yves (2017) An Australian Model for the EU’s Migration Crisis?, Commentary, European Policy Centre, 2 June, http://aei.pitt.edu/87778/1/pub_7726_anaustralianmodel.pdf [accessed 9 June 2017]. van Selm, Joanne (2005) European Refugee Policy: Is There Such a Thing? UNHCR New Issues Working Paper number 115, www.unhcr.org/en-us/research/working/42943ce02/european-refugee-policything-joanne-van-selm.html [accessed 10 December 2016]. van Selm, Joanne (2015) Temporary Protection: EU Had a Plan for Migration Influx, EU Observer, 14 October, https://euobserver.com/opinion/130678. van Selm, Joanne (2016a) Are Asylum and Immigration really a European Union Issue? Forced Migration Review, 51(January), www.fmreview.org/destination-europe/vanselm.html [accessed 8 December 2016]. van Selm, Joanne (2016b) EU–Turkey Deal Doesn’t Add Up, EU Observer, 11 March, https://euobserver. com/opinion/132638 [accessed 9 December 2016]. van Selm (2016c) What if the E.U. Had a Refugee Policy? In Refugees Adrift? Responses to Crises in the MENA and Asia by the Middle East Institute, Amer­ican University, www.mei.edu/content/map/ what-if-eu-had-refugee-policy-how-resettlement-among-other-mooted-policies-could-have-playedrole [accessed 10 December 2016]. UN General Assembly (1950) Statute of the Office of the United Nations High Commissioner for Refugees, 14 December, A/RES/428(V), www.refworld.org/docid/3ae6b3628.html [accessed 21 December 2016]. UN General Assembly (1951) Convention Relating to the Status of Refugees, 28 July, United Nations, Treaty Series, vol. 189, p. 137, www.refworld.org/docid/3be01b964.html [accessed 21 December 2016]. UN General Assembly (1967) Protocol Relating to the Status of Refugees, 31 January, United Nations, Treaty Series, vol. 606, p. 267, www.refworld.org/docid/3ae6b3ae4.html [accessed 21 December 2016]. UNHCR (2000) State of the World’s Refugees, Chapter 7 ‘Asylum in the Industrialised World’, www. unhcr.org/3ebf9bb10.pdf [accessed 15 November 2016]. Verhofstadt, Guy (2016) The Turkey Refugee Deal: Europe Sells Out, Social Europe, 12 May, www.socialeurope.eu/2016/05/the-­turkey-refugee-­deal-europe-­sells-outeurope-­sells-out/ [accessed 10 December 2016].

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25 A Common European Asylum System? How variation in Member States’ administrative capacity undermines EU asylum harmonisation Natascha Zaun Introduction: EU asylum policies after almost two decades of policy harmonisation Since the Treaty of Amsterdam, the European Union (EU) has gradually communitarised the asylum policies of its Member States. By June 2013, it was supposed to have created a Common European Asylum System (CEAS) with common protection standards across EU Member States. The so-­called European ‘refugee crisis’ of 2015 and 2016, however, has clearly shown that the EU has failed this goal. After almost two decades of policy harmonisation, asylum policies across EU Member States remain as diverse as ever. While some traditional recipients of refugees such as Germany or Sweden have comparatively strong protection standards, border countries such as Italy and Greece continue having relatively weak asylum systems and are unable to receive and accommodate larger numbers of asylum applicants. Moreover, also some of the Central Eastern European Member States that joined the EU since 2004 have only a recent history of receiving refugees. Their asylum systems clearly do not provide the same level of protection to asylum-­seekers and refugees as Member States that have a longer history in this area. The maltreatment of asylum-­seekers in Hungary, which entailed the unilateral suspension of the Dublin Regulation by Germany in late August 2015, is a point in case (Euractiv, 2015). Drawing on two earlier publications (Zaun, 2016, 2017), this contribution aims to address the puzzle why EU asylum policies are still largely diverse after almost two decades of EU asylum harmonisation. Special focus will be given to the first phase of the CEAS (1999–2005) when the foundations for today’s policies were laid. I argue that incomplete harmonisation can be explained by the fact that only a small group of Member States, whom I call ‘strong regulators’, have actively shaped the harmonisation negotiations. Key to their success were their (relatively) smoothly and efficiently working administrations and their strong administrative capacity. Having received the largest shares of asylum-­seekers prior to the negotiations, their administrations had built credible expertise from the large amount of asylum cases they had processed. During the negotiations these comparatively efficient administrations were able to use their regulatory expertise to build strong and well-­informed positions. Hence, strong regulators such as Germany, the Netherlands, Sweden, the United Kingdom or France were well equipped for the negotiations. Member States that did not possess these capacities (weak regulators) were 315

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unable to build this expertise. At the time, most of these weak regulators, especially Italy and Greece, received only very few asylum applications and had little experience in the area. However, even with application numbers rising significantly in these countries after the so-­ called ‘Arab Spring’ in 2011, they were not able to leave a substantial mark on the legislative instruments of the second phase of the CEAS (2008–2013) either. Given their low levels of administrative capacity, these countries were unable to build credible expertise and were hence largely sidelined. The dominance of strong regulators in the negotiations eventually can also explain why EU asylum policies did not lead to substantive policy-­change in the Member States. Strong regulators had effectively influenced EU directives with the aim of avoiding any pressures to change their domestic policies. Weak regulators had little influence on EU legislative output in the area, given their low levels of regulatory expertise and administrative capacity. They also faced severe difficulties when implementing EU asylum policies domestically, precisely due to their low levels of administrative capacity. While on paper EU Member States had at least achieved harmonisation of some degree, in practice, policies remained largely diverse. The structure of this chapter is as follows: In the next section, I will briefly present the state of the art on the research on EU asylum policy harmonisation to point out the research gap that my research addresses. Subsequently, I will present the theoretical argument of this contribution, which is based on misfit and regulatory competition. In the fourth section, I will then describe the legislative outputs and the domestic implementation outcomes of the three core directives (first phase CEAS), namely the Reception Conditions Directive, the Qualification Directive, and the Asylum Procedures Directive. To illustrate some of the underlying dynamics, special focus will be given to three examples from the Reception Conditions Directive, namely freedom of movement, access to material reception conditions, and withdrawal of reception conditions in case of late application. I will show that indeed EU legislative output mainly represents the standard previously present in the strong regulators and that weak regulators had to adopt significant changes through EU legislation (which they were often unable to implement). In the fifth section, I will then provide an explanation for the dominance of strong regulators in EU asylum policy-­making and for the implementation deficit among the weak regulators, based on misfit and regulatory competition. The conclusion will summarise the findings and draw lessons for the 2015/2016 crisis situation.

The state of the art on EU asylum harmonisation Research on EU refugee policies can be divided around two dimensions, an external and an internal dimension. Scholars investigating the external dimension of EU refugee policies mainly investigate the impact of these policies on third countries and the rights of refugees and migrants who are the addressees of these policies (see for instance Acosta Arcazo and Geddes, 2014; Lavenex and Uçarer, 2003) as well as the impact of potential power asymmetries on policy outcomes (Betts and Milner, 2006; Greenhill, 2016). Research on the internal dimension of EU refugee policies usually revolves around three main questions. Early research on EU asylum policies asked why EU asylum policies were communitarised. This was explained either through neofunctionalist pressures (Niemann, 2006), strategic venue-­shopping (Guiraudon, 2000; Bigo, 1996, see below) or the fact that intergovernmental cooperation led to regulatory competition and thus a very uneven distribution of asylum-­seekers across Europe (Barbou des Places, 2003; Stetter, 2000). A second branch of the literature asks whether EU asylum policies are liberal or restrictive and why this is so. A third branch tries to explain why responsibility-­sharing initiatives have had little success so far. Thielemann (2003), Thielemann and Dewan (2006) and 316

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Thielemann and El-­Enany (2010) most prominently argue that responsibility-­sharing initiatives have been unsuccessful, given the collective action problems that characterise cooperation on refugee protection. They argue that refugee protection is a collective good and therefore non-­ rivalrous and non-­excludable. This implies that even states that do not actively contribute to refugee protection through hosting refugees, still benefit from the security and stability thus produced. This incentivises states to free-­ride rather than actively contribute to refugee protection. These findings for the European level also resonate with the debate about global responsibility-­sharing, which comes to similar conclusions. Scholars investigating global responsibility-­sharing have usually explained unsuccessful attempts at responsibility-­sharing with the help of the Prisoner’s Dilemma (Noll, 2003; Suhrke, 1998). In this game, two states have the choice to cooperate or defect on responsibility-­sharing. Their collectively optimal strategy would be to cooperate, but their individually optimal strategy is to defect, because they would be worse of if they cooperated and the respectively other state did not cooperate. This leads to a situation where both states defect. Betts, however, has argued that instead global responsibility­sharing can be better explained through the Suasion Game (2009), because there is usually a power asymmetry between states that already host refugees and want to redistribute these through responsibility-­sharing initiatives and states which would have to take additional refugees under these schemes. Drawing on Betts, Zaun (2018) has recently argued that also the failure of a permanent refugee quota system can also be explained through the Suasion Game. While the EU has not yet developed a genuine responsibility-­sharing mechanism, de jure most of the responsibility for processing asylum applications rests with the border countries. According to the Dublin Convention, which was decided in 1990 and implemented in 1997, the first country of entry is usually responsible for an asylum-­seeker – unless other factors intervene, such as family members of the applicant being present in another Member State or a visa being granted from another Member State. The Dublin Convention was replaced by the Dublin Regulation in 2000 (Council, 2000a) after the partial communitarisation of EU asylum policies in the Amsterdam Treaty. Thielemann and Armstrong (2013) explain the border countries’ agreement to the Dublin Convention through a package deal: border countries were only allowed to join the Schengen area if they also agreed to the Dublin Convention. This contribution focuses on EU asylum harmonisation and discussions on whether EU asylum policies are liberal or restrictive and why this is so. Early attempts to harmonise asylum policies in the European context date back to the London Resolutions and several Joint Positions/Council resolutions in the early and mid-­1990s. The London Resolutions of 1992, for instance, aimed to harmonise asylum policies by establishing criteria for manifestly unfounded applications (Council, 1992a), a common understanding of the notion of ‘host third countries’ (Council, 1992b) and conclusions on countries in which there was generally no risk of persecution (Council, 1992c). A Joint Position on the reception conditions for asylum-­seekers was being debated in the 1990s, but the Council was not able to agree on it (Zaun, 2017, pp. 74). The Joint Position on the harmonised application of the definition of the term ‘refugee’ (Council, 1996a) and even more so the Council Resolution on minimum guarantees for asylum procedures (Council 1996b) only laid down very general ideas, as practices between Member States largely diverged. Especially the London Resolutions were considered largely restrictive (e.g. Guiraudon, 2000; Lavenex, 2001; Vink, 2005). Some scholars provide an explanation for the intergovernmental adoption of these restrictive policies. Guiraudon (2000) and Bigo (1996), for instance, explain these restrictive policies as the result of venue-­shopping dynamics: restrictively-­minded Interior Ministers chose the EU level to circumvent domestic liberal veto players by adopting restrictive policies in a purely intergovernmental setting. When implementing these policies domestically, the Ministers would not need to consult their liberal veto players and thus had much more leeway than 317

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they had in domestic policy-­making. Focusing on a similar period, Lavenex (2001) and Vink (2005) investigate EU asylum policy from the perspective of Europeanisation. Both authors investigate how Member States, France and Germany in the case of Lavenex and the Netherlands in Vink’s analysis, implement European intergovernmental decisions domestically. They find that domestic implementation largely concurred with domestic demands and were much less driven by European level politics and policies per se. The first scholars to investigate EU asylum harmonisation after its partial communitarisation with the Treaty of Amsterdam were Law scholars. These scholars were mainly interested in whether EU asylum legislation and particularly the Qualification Directive (Council, 2004), the Reception Conditions Directive (Council, 2003) and the Procedures Directive (Council, 2005), complied with international human rights and particularly refugee law (e.g. Baldaccini et al., 2007; Battjes, 2006; Peers and Rogers, 2006). Generally, most of them concluded that EU asylum law implied severe human rights violations. They thus expected that EU asylum law probably represented the Member States’ lowest common denominator and that they would lead to a race to the bottom in protection standards domestically. Some of these scholars therefore also investigated how EU legislation was transposed domestically and whether Member States restricted or liberalised domestic policies (e.g. Odysseus, 2006, 2007; Zwaan, 2007, 2008). While none of these studies systematically compared all Member States and all three core directives, they provided a much more mixed picture than scholars initially expected. EU asylum policies did not usually lead to policy restrictions, but to both restrictions and liberalisations. Additionally, very often Member States did not change their policies at all to comply with EU directives. Soon, Political Scientists became interested in why the expected lowest common denominator and race to the bottom dynamics had not occurred (Thielemann and El-­Enany, 2011). First attempts to explain policy liberalisation based on empirical analysis ascribed them to increasing levels of communitarisation of asylum policies through the Amsterdam Treaty in 1999 and the Lisbon Treaty in 2010 (Kaunert, 2009; Kaunert and Léonard, 2012; Thielemann and Zaun, 2018; critical of this view are: Ripoll Servent and Trauner, 2014). These developments have either been attributed to processes of juridification resulting from enforceable EU legislative instruments being adopted (Kaunert and Léonard, 2012) or to the increased competences of EU institutions. As non-­majoritarian institutions, these do not have to respond to populist pressures, which allows them to promote more balanced positions than national governments (Thielemann and Zaun, 2018; see also Kaunert, 2009). While standards beyond the lowest common denominator after the Lisbon Treaty (EU, 2007) can thus be explained, they still remain puzzling in the post-­Amsterdam Treaty (EU, 1997) phase, which is the first phase of the CEAS. Although policies were partly communitarised, allowing the EU to pass legislation, this legislation was generally passed in a rather intergovernmental setting. At that time, decisions in the Council were taken under unanimity, the Commission shared the right to initiative with the Member States, and the European Parliament was only consulted and not a co-­legislator.1 Under these conditions Interior Ministers were still able to negotiate with very little interference. Had they been interested in restricting domestic legislation through EU policy, they would still be able pursue this strategy in the post-­Amsterdam setting. Under these conditions, lowest common denominator output at the EU level and domestic restrictions during the implementation of these policies would have been likely. The venue-­shopping argument obviously could not be easily reconciled with empirical findings post-­Amsterdam. I argue that this is because, generally, Member States have a preference for preserving their policies and try to avoid policy-­change through EU legislation that is associated with costs. Instead, they try to influence EU legislation by ‘uploading’ their national status quo 318

A common European asylum system?

to avoid pressures for change resulting from misfit between EU and national policy. However, strong regulators were more effective in doing so, given their significant expertise. Standard upgrades have thus been mainly achieved among the weak regulators that were unable to influence EU legislation. However, these have only upgraded their standards on paper but not in practice, which explains the large degree of diversity between asylum policies in Europe (Zaun, 2016, 2017).

Theorising the power of strong regulators

FI

NL

2

LU

SE

AT ES

UK

BE

DE

FR

1.5

IE

PT

1

World Bank Government Effectiveness Index

The theoretical model which I draw on in this contribution is an adapted version of the so-­ called ‘misfit and regulatory competition model’ in Europeanisation research, which has been applied to EU environmental and safety at work policies (Börzel, 2002; Eichener, 1997; Héritier, 1996). The key idea of this model is that most of the times states do not want to change their policies, but to preserve their status quo. In order to prevent potential ‘misfit’ between EU and domestic policies that would entail pressures for change, states usually try to influence EU legislation, often from the agenda-­setting phase on. Some Member States, however, are generally better at doing so than others. Strong regulators are usually more effective in influencing EU legislation than weak regulators. Strong regulators are countries with high levels of bureaucratic capacity (here measured through the World Bank Government Effectiveness Index from 2000; see Kaufmann et al., 2010). When they receive large numbers of asylum applications (exposure), strong regulators can build credible regulatory expertise and precedent (see Figure 25.1). Since

IT EL 0

100,000

200,000

300,000

400,000

1,900,000

Experience: total asylum applications in the last 10 years

Figure 25.1  Strong and weak regulators in asylum policies in 2000 Source: Eurostat, 2013; Kaufmann et al., 2010. Legend AT: Austria; BE: Belgium; DE: Germany; EL: Greece; ES: Spain; FI: Finland; FR: France; IE: Ireland; IT: Italy; LU: Luxembourg; NL: Netherlands; PT: Portugal; SE: Sweden; UK: United Kingdom.

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I am interested in the expertise Member States had at the beginning of the negotiations of the first phase of the CEAS in 2000, I operationalise exposure through the number of asylum applications a state has received ten years prior to the negotiations. Of course, strong and weak regulators are poles of a continuum and it is hard to draw a clear line, determining where strong regulation ends and weak regulation begins. However, one can see tendencies. Germany, the UK, the Netherlands, France, and Sweden tend more towards the strong regulating end. Italy, Greece and Portugal are obviously on the weak regulating end. A couple of other Member States2 take a middle-­ground position and can be defined as medium regulators. Medium regulators can be expected to act sometimes more like strong regulators and at other times more like weak regulators. Being strong regulators helps states influence EU policy-­making in two ways (Zaun, 2017, pp. 41–51). First, given their high numbers of asylum applications, strong regulators usually have a stake in the issue. Their effectively working administrations turn this into clearly defined and strong positions that they defend in the Council. They know exactly what they want and they are ready to fight for it. Weak regulators lack these capacities. At the same time, strong regulators have the already bespoken expertise. Their effectively working administrations are able to turn this expertise into well-­informed positions that have weight in the negotiations. Strong and informed positions are two sides of the same coin: to defend a position strongly, states need to have a (informed) position in the first place. Weak regulators are unable to develop the same degree of positionality. Even if they face higher numbers of asylum applications, they will not adopt strong positions as their weak administrative systems are unable to deliver them. And as they do not have significant regulatory expertise to begin with, they only advance weakly informed positions in the negotiations. Strong regulators are therefore likely to dominate the EU level decision-­making processes at all stages. They will try to influence the agenda-­setting phase and define the issue at stake. They will then also try to ‘upload’ their regulatory model to the EU level and introduce it into EU legislation during the Council negotiations. Having previously defined the issue at stake, their solutions should usually be a good fit for the problem defined. When minimum standards are adopted, as they were in the first phase of the CEAS, strong regulators adopt two different strategies, depending on whether they have more liberal or more restrictive policies as compared to other Member States. In case they have more restrictive policies in place, strong regulators need to influence EU legislation to avoid misfit. If their standards are more liberal, however, they can accept other strong regulators introducing their restrictive standard into EU legislation, as a directive laying down minimum standards still allows them to preserve their more liberal standard. In the implementation phase, strong regulators do not face substantial misfit pressures. Where necessary, they have influenced EU legislation so that it allows them to maintain their regulatory approach. Weak regulators on the other hand remain relatively passive both at the agenda-­ setting and the policy formulation phase. They subsequently phase immense misfit pressures when having to implement EU policies. Given their weak regulatory systems, they are unable to make the necessary adjustments and are hence incompliant with EU legislation.

EU asylum policies: the lowest common denominator of the strong regulators entailing little policy-­change In this section, I will demonstrate that there is empirical support for the misfit and regulatory competition model from comparing Member States’ status quo ante with the EU level legislative output on the one hand and domestic implementation of EU policy on the other hand. EU asylum policies represent the lowest standard present among the strong regulators, while the standard provided by the weak regulators is often surpassed by EU legislation. This is illustrated by Table 25.1, which addresses three highly contested issues from the Reception 320

Yes Yes Yes Yes Yes No No Yes Yes Yes Yes Yes Yes

Restricted4 Yes Yes Yes No4 Restricted4 Yes Yes Yes Yes Yes Yes Yes

Yes Yes Yes Yes No Yes Yes Yes Yes Yes Yes Yes Yes

Yes Yes5 Yes Yes Yes Yes6 Yes6 Yes Yes Yes Yes Yes Yes

After TP2 No No No No No No No No No No No No Yes

Before TP No No No No No Yes No No No No No No Yes

After TP3

Withdrawal of Reception Conditions if Application Is Late: Yes

Notes 1 Sources: Odysseus (2007: 45). 2 Sources: Odysseus (2007, p. 32); for Greece: ECtHR (2011); European Database of Asylum Law (EDAL) (2014); for Italy ECtHR (2014), Electronic Immigrant Network (2014), Schweizerische Flüchtlingshilfe/Juss-Buss (2011: pp. 5, 27). 3 Sources: Odysseus (2007: 51–52). 4 While the German Residenzpflicht is an extremely restrictive practice that applies to all asylum-seekers, Austria and Greece have only introduced specific restrictions. 5 Access to health care is only granted to asylum-seekers holding a valid asylum-seeker card. 6 However, material reception conditions are only provided on paper: For Greece: Presidential Decree (PD) 220/2007, art. 12 (see Greece 2007). For Italy: Decreto Legislativo (DL) 140/2005, art. 6, 9, 10 (see Italy 2005).

Austria Belgium Finland France Germany Greece Italy Luxembourg Netherlands Portugal Spain Sweden United Kingdom

Before TP

After TP1

Access to Material Reception Conditions: Provided

Before TP

Freedom of Movement: May Be Restricted

Table 25.1  Three core issues reception conditions directive (before and after transposition of the directive)

Natascha Zaun

­ onditions Directive, namely freedom of movement, access to reception conditions and withdrawal of C reception conditions. The restriction of freedom of movement adopted in the directive represents the standard of strong regulator Germany, which at that time restricted freedom of movement of asylum-­seekers as part of its Residenzpflicht. The introduction of an obligatory access to material reception conditions reflects previous practice in all Member States, except for the weak regulators Italy and Greece. Although under unanimity vote in the Council no Member State could be outvoted, these Member States obviously agreed to a practice that exceeded their previous level of protection and consequently implied additional costs. The withdrawal of reception conditions in case an application arrives late was a policy only followed by strong regulator UK previously (and ruled unlawful by the House of Lords shortly after the Reception Condition Directive was adopted, see Odysseus, 2006, pp. 51–52). Although no other Member State applied this practice previously, strong regulator UK managed to get this practice accepted by EU law by way of negotiating this policy into the Reception Conditions Directive. In a nutshell, strong regulators seem to be able to get their policies accommodated by EU law, even if they are the only Member State following this approach, whereas a team of two weak regulators is unable to block policy which is out of line with its domestic approach (see Zaun, 2017, pp. 80–97). Most Member States that had more liberal standards in place domestically than required by EU legislation persevered them when implementing EU asylum policies. For instance, except for Greece no other Member State introduced the restrictions of freedom of movement or a withdrawal of reception conditions in case of late applications allowed by the directive. Greece arguably did so because it had to adopt several liberalisations and thus needed to save costs (see Zaun, 2017, pp. 230–231). However, overall, the adoption of EU asylum policies entailed a lot more policy liberalisations than restrictions. Out of 248 decisions taken, Member States opted for policy-­change in only 47 instances. The status quo was maintained in 201 cases, which is 80 per cent. In 76 instances, this was even true were the domestic standard exceeded the standard of the directive. While 30 of these changes were liberalisations, 17 changes resulted in restrictions. Interestingly, in 16 cases liberalising changes meant the adoption of a standard that exceeded the one required by the directive (Zaun, 2017, pp. 98–99). Strong regulators did not have to adopt substantial changes, as they had previously been able to upload their policies to the EU level. Only weak regulators faced pressures to change their policies. However, as the case of access to material reception conditions shows, countries like Italy and Greece were able to do so on paper but failed to do so in practice ­(Schweizerische Flüchtlingshilfe/Juss-­Buss, 2011; UNHCR, 2007; Zaun, 2017, pp. 2016–218).

Explaining EU policy output: the power of strong regulators Process-­tracing (Beach and Brun Pederson, 2013; Rohlfing, 2012, pp. 150–167) of the negotiations (Zaun, 2017, pp. 124–176) on the three directives shows that in the majority of cases indeed all Member States tried to ‘upload’ their status quo ante policy. This refutes the venue-­ shopping thesis, as it indicates that Interior Ministers did not use EU level policy to change domestic policies. Instead, it provides support to the misfit and regulatory competition model. Strong regulators played a prominent role in shaping the debates in the Council, while weak regulators were rather passive. This can explain why EU asylum policies represent the lowest common denominator of the strong regulators, while the standard provided by weak regulators was often surpassed. The European Commission and the European Parliament (EP) remained background actors in the negotiations, which is related to the low level of communitarisation at the time. As ­decisions in the Council were taken under unanimity and each Member State had a veto, the 322

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Commission needed to accommodate every Member State ready to defend its position. If it wanted any policy to be adapted, it eventually had to accept the watering-­down of all three of its legislative proposals. As the raison d’être of the Commission is to initiate EU policy, it had a strong preference for any EU policy being adopted. It was hence in a weaker bargaining position vis-­à-vis the Member States, which were more patient in this regard and for whom no EU policy was still better than policy that run counter to their preference (of preserving their national legislation). Under consultation procedure, the EP was in a rather weak position as well, as the Council could (and did) widely ignore the EP’s positions. As it could not leave a mark on policy, it took very strong humanitarian stances to make itself heard. These positions, however, did not find any support in the Council, which explains why the EP’s positions and the legislative output differ hugely (Zaun, 2017, pp. 176–183). Strong regulators have put asylum policies on the EU’s agenda and thus framed the debates from the early on. After unsuccessful attempts to harmonise asylum policies through intergovernmental agreements throughout the 1990s, a group of strong regulators including Germany, Sweden, the UK, France, and the Netherlands promoted the idea of harmonising asylum policies across Europe through EU regulation (Stetter, 2000; Zaun, 2017, pp. 64–71, 183–189). Having been top recipient countries of asylum-­seekers during the 1990s, these countries thus hoped to ensure a more even distribution of asylum-­seekers across Europe. If all Member States provided the same protection standards to them, asylum-­seekers would no longer favour certain Member States over others, these countries hoped. Although the impact of the generosity of asylum policies on asylum-­seekers’ destination choice is highly contested (see Thielemann, 2006), strong regulators at the time clearly assumed that weak regulators did not receive a comparable share of asylum-­seekers because of the absence of any asylum regulation in these countries. But interestingly, many of the strong regulators also considered their own regulatory system as the most generous among the strong regulators, only to find out during the negotiations that this perception was erroneous (Zaun, 2017, pp.  183–189). Having defined the unequal distribution and ‘secondary movements’ of asylum-­seekers towards Northern European Member States as the problem to be addressed (e.g. Council, 2000b, p. 3), strong regulators were subsequently better able to ‘upload’ their regulatory model than weak regulators whose non-­regulation of asylum was defined as a part of the problem. In the subsequent negotiations, both strong and weak regulators tried to influence EU legislation by ‘uploading’ their national policies (see also Ackers, 2005, p. 32). Liberal strong regulators did not try to restrict their domestic policies through EU legislation. The negotiations show that, for instance, the Netherlands and Sweden, which treated refugees and subsidiary protection holders equally, also promoted this approach at the EU level. While they expected to benefit from more liberal policies on this issue being adopted in countries with currently lower levels of protection, they did not try to impose their policies onto the others in the negotiations. The reason is that they could still preserve their higher standard, because only minimum standards were adopted. They hence had less to lose than restrictive strong regulators, which would have faced pressures to change their policies, if they had agreed to the adoption of more liberal policies than their national ones. Restrictive strong regulators therefore fought harder to have their status quo ante accommodated. Weak regulators on the other hand remained relatively passive and did not fight for their positions to be accommodated, even if they had initially presented them in the discussions (Zaun, 2017, pp. 189–193). The negotiation success of the restrictive strong regulators and the weak regulator’s incapacity to influence EU legislation can be related to their positionality, i.e. the intensity and the quality of their positions. Strong regulators defended their positions more vigorously, adopting strong positions. They were even ready to defect from cooperation if necessary. Some Ministers 323

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of strong regulators were ready to veto a directive altogether if their positions were not accommodated (Interview IM_DE_1). This is also supported by the following state of a Member of the German delegation: There were only two or three states [supporting us on the issue], but that left us unimpressed, because this was a demand which also the Minister brought forward on the highest level. The presidency soon understood that they were not able to change our position by putting us under pressure just a little bit. (IM_DE_1) Italy and Greece on the other hand adopted much more flexible positions and did not fight them through. One case in point is that of Italy and Greece opposing the idea of material reception conditions for asylum-­seekers. Material reception conditions were alien to their national regulatory approach, as both countries do not even provide social benefits for their unemployed citizens. However, in the course of the negotiations they gave up on this issue without receiving any compensation in exchange (Zaun, 2017, pp. 125–142, 198–200). In addition to defending their positions more vigorously, strong regulators also advanced positions that were better informed. Observers and participants of the negotiations suggest that Germany, France, Sweden, the UK and the Netherlands had well-­developed legislation, which served them as a basis for their positions during the negotiations: The top […] asylum destination countries […] have been working on these issues for a very long time. They are experienced, and their systems are robust. I mean Germany, France, the Netherlands, the UK, Sweden have asylum systems which are fully respected. (Interview PermRep_UK) Having been applied on a daily basis, their regulations are tried and tested: […] our rules are the result of extensive experience and […] a trialogue between the three powers. The government proposes [a law], the legislature passes it and amends it already. And [in case of a review in court] the courts [either] approve it or it is amended again. And if you have such a rule, then it’s tried and tested and you can rely upon it. (IM_DE2) In addition to being able to draw on concrete regulation, strong regulators also had smoothly working administrations, which could turn regulatory expertise into sound positions. One observer of the negotiations referred to this, suggesting that ‘some administrations are better than others’, with the good ones being ‘very well prepared, very effective’ (Interview COM 1). Proposals advanced by weak regulators on the other hand were considered less convincing, because they were less routed in long-­standing experience with refugees and asylum-­seekers. Their positions were often unspecific and formulated ad hoc, as the following comparison of a representative from a strong regulator shows: Our position in the negotiations was so specific since we have a rather dense regulatory framework on asylum. Other states did not have that. They could be more passive, as they did not have a corresponding national provision concerning some of the Commission’s proposals. (Interview IM_DE2) 324

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As weak regulators had less informed positions or only adopted positions towards the end of the negotiations (Interview IM_DE1), these states had more difficulties to influence EU legislation and often left no mark on it (Zaun, 2017, pp. 192–204).

(Non-)implementing EU legislation After having explained why only strong regulators have been able to influence EU legislation, I will now turn to the explanation of the low level of harmonisation of asylum policies across the EU. As I have suggested above, policy stasis generally prevails over change in the implementation of EU asylum directives. For states with more liberal policies than those of the directives, this can be explained by the fact that EU directives of the first phase of the CEAS only provide minimum standards and thus allow for the provision of more liberal standards. Generally, these states did not opt for a restriction, because they valued their current national approach and did not intend to change it. This is also underlined by following statement on the implementation of the Asylum Procedures Directive in the Netherlands: The implementation of the Procedures Directive did not lead to a lower standard of protection in the asylum procedure […]. The Dutch government is of the opinion that there is no reason to make use of the many exceptions to safeguards provided for in the Procedures Directive. […] These exceptions are based on practices in other Member States and they are not necessarily useful in the Dutch context. (Rennemann, 2008, p. 133) Like Member States with a more liberal policy, restrictive strong regulators did not face substantial misfit in the implementation phase. Having uploaded their restrictive practices with the purpose of maintaining discretion for these practices, restrictive strong regulators did not need to change their policies to be compliant. In the few instances where strong (or medium) regulators adopted policy-­change when implementing any of the three directives, this change generally occurred in response to a domestic demand and was either based on domestic legislative processes or the result of a Member State copying practices applied in other Member States (Zaun, 2017, pp. 230–231). Weak regulators such as Italy and Greece faced substantial misfit pressures, as they had to introduce asylum systems almost from scratch, which included the systematic provision of housing, free legal aid and other forms of material reception conditions (Olivetti, 2008, p. 183). This proved to be a challenge for these countries, particularly given their low levels of administrative capacity. While these states hence complied with EU law on paper, they were unable to do so in practice. While Italy’s and Greece’s non-­compliance with the Dublin Regulation has often been associated with strategic ‘wave-­throughs’ (Costello and Mouzourakis, 2016), non-­ implementation of the three directives is less strategic and instead a question of insufficient administrative capacity. In contrast to the Dublin Regulation, which clearly disadvantages border countries, weak regulators partly saw benefits in filling domestic regulatory gaps through EU legislation, as the case of Italy shows. With rising numbers of asylum applications since the late 1990s, Italy saw a stronger need to adopt secondary legislation on the issue in the early 2000s. However, with national elections coming up, politicians feared the potential electoral costs of legislating on such a contested issue and therefore preferred EU legislation stepping in (PLS Ramboll, 2001, p. 22; Zaun, 2017, p. 187).

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Conclusion The 2015/2016 so-­called ‘refugee crisis’ has shown that even after almost 20 years of EU asylum harmonisation practices between Member States differ widely. Strong regulators have tried to use EU policy harmonisation as a tool to ensure a more equal distribution of refugees across the EU. However, while they wanted to raise the protection standards in weak regulating and other strong regulating countries, they were not ready to change their own standards. Strong regulators therefore tried to have all their restrictive policies accommodated by EU directives to have the discretion to preserve them. This led to EU directives that were barely ambitious about the level of harmonisation that they aimed to achieve in the first place. However, in some of the weak regulating Member States, EU asylum directives could have potentially caused drastic changes. This was an ambitious aim to begin with. It became even more of a challenge for weak regulators, given the increased inflow of asylum-­seekers and refugees they received subsequent to the first phase of the CEAS. Given the low level of administrative capacity, it proved unsuccessful. Future reform of the CEAS will have to have to better account for the different capacities of Member States. Turning the EU asylum directives into regulations, as has been recently proposed by the Commission (European Commission, 2016a, 2016b) is unlikely to achieve the desired effects of immediate bindingness and higher levels of compliance. The reasons for non­compliance with EU asylum directives lie much deeper. Instead of being merely based on a lack of will, they result from systemic deficiencies.

Notes 1 This changed with the Lisbon Treaty, when the Parliament became a co-­legislator, the Commission had the sole right to initiative, and decisions in the Council were to be taken under unanimity. Also the competences of the Court of Justice of the EU were significantly expanded with the Lisbon Treaty (see EU, 2007, art. 63). 2 The states addressed here are only the EU-­15, as focus on the first phase of the CEAS which took place before/around the accession of ten new Member States in 2004.

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A common European asylum system? Costello, C. and Mouzourakis, M. (2016). The Common European Asylum System: Where did it all go wrong? In: M. Fletcher, E. Herlin-­Karnell, and C. Matera, eds. The European Union as an area of freedom, security and justice. Abingdon: Routledge. pp. 263–300. Council (1992a). Council Resolution of 30 November 1992 on manifestly unfounded applications for asylum (“London Resolution”). London. 30 November. Available at www.refworld.org/ docid/3f86c3094.html [accessed 9 April 2018].  Council (1992b). Council Resolution of 30 November 1992 on a harmonised approach to questions concerning host third countries (‘London Resolution’). London. 30 November. Available at: www. refworld.org/docid/3f86c3094.html [accessed 9 April 2018]. Council (1992c). Conclusions on countries in which there is generally no risk of persecution (‘London Resolution’). London. 30 November. Available at: www.refworld.org/docid/3f86c6ee4.html [accessed 9 April 2018]. Council (1996a). Joint Position of 4 March 1996 defined by the Council on the basis of Article K.3 of the Treaty on European Union on the harmonized application of the definition of the term ‘refugee’ in Article 1 of the Geneva Convention of 28 July 1951 relating to the status of refugees. OJ L 63/2. ­Luxembourg. 13 March 1996. Available at http://eur-lex.europa.eu/legalcontent/EN/TXT/PDF/?u ri=OJ:L:1996:063:FULL&from=EN [accessed 18 May 2015]. Council (1996b). Council Resolution of 20 June 1995 on minimum guarantees for asylum procedures. OJ C 274/13. Brussels. 19 June. Available at http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?ur i=OJ:C:1996:274:FULL&from=DE [accessed 11 October 2017]. Council (2000a). Council Regulation (EC) No 2725/2000 of 11 December 2000 concerning the establishment of ‘Eurodac’ for the comparison of fingerprints for the effective application of the Dublin Convention. OJ L 316. Luxembourg. 15 December. Available at www.refworld.org/docid/3f4e40434. html [accessed 11 October 2017]. Council (2000b). Note from the French delegation to the Asylum Working Party on ‘Conditions for receptions of asylum-­seekers’. Brussels, 29 June. Available at http://data.consilium.europa.eu/doc/ documents/ST-11622-2000-INIT/en/pdf [accessed 11 October 2017]. Council (2003). Council Directive 2003/9/EC of 27 January laying down minimum standards for the reception of asylum-­seekers. OJ L 31/18. Luxembourg. 6 February 2003. Available at http://eur-lex. europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2003:031:0018:0025:EN:PDF [accessed 11 October 2017]. Council (2004). Council directive 2004/83/EC of 29 April 2004 on minimum standards for qualification and status of third country nationals or stateless persons as refugees or persons who otherwise need international protection and the content of the protection granted. OJ L 304/12. Brussels. 30 September. Available at www.refworld.org/pdfi d/4157e75e4.Pdf [accessed 1 October 2017]. Council (2005). Council Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status. OJ L 326/13. Luxembourg. 13 December. Available at http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2005:326:001 3:0034:EN:PDF [accessed 11 October 2017]. ECtHR (2011). M.S.S. v. Belgium and Greece. Application Number 30696/09. Strasbourg, 21 January. Available at http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-103050 (accessed 12 April 2018). ECtHR (2014). Tarakhel v. Switzerland. Application No. 29217/12. Strasbourg, 4 November. Available at: http://hudoc.echr.coe.int/sites/eng/ pages/search.aspx?i=001-148070 (accessed 12 April 2018).  EDAL (2014). ECtHR – M.S.S. v. Belgium and Greece [GC]. Application No. 30696/09. Available at www. asylumlawdatabase.eu/en/content/ecthr- mss-v-belgium-and-greece-gc-application-no-3069609 (accessed 12 April 2018).  Eichener, V. (1997). Effective European problem-­solving: Lessons from the regulation of occupational safety and environmental protection. Journal of European Public Policy, 4(4), pp. 591–608. Electronic Immigrant Network. (2014). European Court of Human Rights Rules Returns to Italy under Dublin Regulation May Violate Convention, 4 November. Accessed April 12, 2018, at www.ein.org. uk/news/european-court-human-rights-rules-returns-italy-under-dublin-regulation-may-violateconvention EU (1997). Treaty of Amsterdam. Amsterdam. 2 October. Available at http://europa.eu/eu-law/decisionmaking/treaties/pdf/treaty_of_amsterdam/treaty_of_amsterdam_en.pdf. [accessed 1 October 2017]. EU (2007). Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community. Lisbon. 13 December. Available at http://eur-lex.europa.eu/legal-content/ EN/TXT/?uri=celex%3A12007L%2FTXT [accessed 11 October 2017].

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Natascha Zaun Euractiv (2015). Germany suspends Dublin Agreement for Syrian Refugees, 26 August. Available at www. euractiv.com/section/economy-jobs/news/germany-suspends-dublin-agreement-for-syrian-refugees/ [accessed 17 August 2017]. European Commission (2016a). Proposal for a Regulation of the European Parliament and the Council on standards for the qualification of third country national or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection and for the content of the protection granted and amending Council Directive 2003/109/EC of 25 November 2003 concerning the status of third country national who are long-­term residents. Brussels, 13 July. Available at https://ec.europa.eu/home-affairs/sites/homeaffairs/files/what-we-do/policies/ european-agenda-migration/proposal-implementation-package/docs/20160713/proposal_on_bene ficiaries_of_international_protection_-_subsidiary_protection_eligibility_-_protection_granted_en.pdf [accessed 18 August 2017]. European Commission (2016b). Proposal for a Regulation of the European Parliament and of the Council establishing a common procedure for international protection in the Union and repealing Directive 2013/32/EU. Brussels, 13 July. Available at https://ec.europa.eu/transparency/regdoc/rep/1/2016/ EN/1-2016-467-EN-F1-1.PD [accessed 18 August 2017]. Eurostat (2013). Asylum applications by citizenship till 2007. Annual data (Rounded). Luxembourg. Available at http://appso.eurostat.ec.europa.eu/nui/show.do/dataset=migr_asyctz&lang=en [accessed 21 May 2015]. Greece (2007). Presidential Decree No. 220 of 2007 on the Transposition into the Greek Legislation of Council Directive 2003/9/EC from January 27, 2003 laying down minimum standards for the reception of asylum-­seekers. Athens, 6 November, www.refworld.org/docid/49676abb2.html (accessed 12 April 2018). Greenhill, K.M. (2016). Open arms behind barred doors: fear, hypocrisy, and policy schizophrenia in the European migration crisis. European Law Journal, 22(3), pp. 317–332. Guiraudon, V. (2000). European integration and migration policy: Vertical policy-­making as venue-­ shopping. Journal of Common Market Studies, 38(2), pp. 251–271. Héritier, A. (1996). The accommodation of diversity in European policy-­making and its outcomes: Regulatory Policy as Patchwork. Journal of European Public Policy, 3(2), pp. 149–167. Italy (2005). Decreto Legislativo 30 Maggio 2005, n.���������������������������������������������������  �������������������������������������������������� 140. Attuazione della Direttiva 2003/9/CE che Stabilisce Norme Minime Relative all’Accoglienza dei Richiedenti Asilo negli Stati Membri. Rome, 21 July, www.camera.it/parlam/leggi/deleghe/05140dl.htm (accessed 12 April 2018). Kaufmann, D., Kraay, A. and Mastruzzi, M. (2010). The World Bank indicators: Methodology and analytical issue (World Bank Research Working Paper No. 5430). Washington: World Bank. Available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1682130 [accessed 17 August 2017]. Kaunert, C. (2009). Liberty versus security? EU asylum policy and the European Commission. Journal of Contemporary European Research, 5(2), pp. 148–170. Kaunert, C. and Léonard, S. (2012). The development of the EU asylum policy: Venue-­shopping in perspective. Journal of European Public Policy, 19(9), pp. 1396–1413. Lavenex, S. (2001). The Europeanisation of refugee policies: Between human rights and internal security. Aldershot/ Arlington: Ashgate. Lavenex, S. and Uçarer, E. (2003). Migration and the externalities of European integration. Lanham: Lexington Books. Niemann, A. (2006). Explaining decisions in the European Union. Cambridge: Cambridge University Press. Noll, G. (2003). Risky games? A theoretical approach to burden-­sharing in the asylum field. Journal of Refugee Studies, 16(1), pp. 236–252. Odysseus (2006). Comparative overview of the implementation of the directive 2003/9 of 27 January laying down minimum standards for the reception of asylum-­seekers in the Member States. Brussels. Available at www.refworld.org/docid/484009fc2.html [accessed 7 August 2017]. Odysseus (2007). Directive 2004/83 Qualification Directive Synthesis Report. Brussels. Available at http://odysseus-network.eu/wp-content/uploads/2015/03/2004-83-Qualification- Synthesis.pdf [accessed 7 August 2017]. Olivetti, L. (2008). Implementation of the procedures directive (2005/85) in Italy. In: K. Zwaan, ed. The Procedures Directive: Central themes, problem issues, and implementation in selected member states. Nijmegen: Wolf Legal Publishes. pp. 161–184. Peers, S. and Rogers, N. (2006). EU immigration and asylum law: Text and commentary. Leiden/Boston: Martinus Nijhoff.

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A common European asylum system? PLS Ramboll (2001). Country profile: Italy. Brussels, November 2001. Available at http://ec.europa.eu/ home-affairs/doc_centre/asylum/docs/italy_final_en.pdf [accessed 19 May 2015]. Rennemann, M. (2008). Implementation of the procedures directive in the Netherlands. In: K. Zwaan, ed. The procedures directive: Central themes, problem issues, and implementation in selected member states. Nijmegen: Wolf Legal Publishers. pp. 133–146. Rohlfing, I. (2012). Case studies and causal inference: An integrative framework. Basingstoke: Palgrave Macmillan. Ripoll Servent, A. and Trauner, F. (2014). Do supranational EU institutions make a difference? EU asylum law before and after ‘communitarisation’. Journal of European Public Policy, 21(8), pp. 1142–1162. Schweizerische Flüchtlingshilfe/Juss-­Buss (2011). Asylum procedure and reception conditions in Italy. Available at http://refworld.org/pdfid/4e2699b92.pdf [accessed 17 August 2017]. Stetter, S. (2000). Regulating migration: Authority delegation in justice and home affairs. Journal of European Public Policy, 7(1), pp. 80–103. Suhrke, A. (1998). Burden-­sharing during refugee emergencies: the logic of collective vs. national action. Journal of Refugee Studies, 11(4), pp. 396–415. Thielemann, E. (2003). Between interests and norms: Explaining burden-­sharing in the European Union. Journal of Refugee Studies, 16(3), pp. 253–273. Thielemann, E. (2006). The effectiveness of governments’ attempts to control unwanted migration. In: C. Parsons, and T. Smeeding, eds. Immigration and the transformation of Europe. Cambridge: Cambridge University Press. pp. 442–472. Thielemann, E. and Armstrong, C. (2013). Understanding European asylum cooperation under the Schengen/Dublin System: A public goods framework. European Security, 22(2), pp. 148–164. Thielemann, E. and Dewan, T. (2006). The myth of free-­riding: Refugee protection and implicit burden­sharing. West European Politics, 29(2), pp. 351–369. Thielemann, E. and El-­Enany, N. (2010). Refugee protection as a collective action problem: is the EU shirking its responsibilities? European Security, 19(2), pp. 209–229. Thielemann, E. and El-­Enany, E. (2011). The impact of EU asylum policy on national asylum regimes. In: S. Wolff, F. Goudappel, and J. de Zwaan, ed. Freedom, security and justice after Lisbon and Stockholm. The Hague: Asser Press. pp. 97–155. Thielemann, E. and Zaun, N. (2018). Escaping populism – safeguarding human rights: Non-­Majoritarian Dynamics in European Policy-­Making, Journal of Common Market Studies. doi: https://doi.org/10.1111/ jcms.12689. UNHCR (2007). Asylum in the European Union: A study of the implementation of the qualification directive. Brussels. November 2007. Available at www.refworld.org/docid/473050632.htlm [accessed 17 August 2017]. Vink, M. P. (2005). Limits of European citizenship. European integration and domestic immigration policies. Basingstoke/New York: Palgrave. Zaun, N. (2016). Why EU asylum standards exceed the lowest common denominator. Journal of European Public Policy. 23(1), pp. 136–154. Zaun, N. (2017). EU Asylum Policies. The Power of Strong Regulating States. Palgrave Macmillan. Zaun, N. (2018). States as gatekeepers in EU asylum politics: explaining the non-­adoption of a refugee quota system, Journal of Common Market Studies. 56(1), pp. 44–62. Zwaan, K. (2007). The qualification directive: Central themes, problem issues, and implementation in selected member states. Nijmegen: Wolf Legal Publishers. Zwaan, K. (2008). The procedures directive: Central themes, problem issues, and implementation in selected member states. Nijmegen: Wolf Legal Publishers.

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Section commentary Asylum and international protection Anne Wetzel

The four chapters in this section all describe the difficulties in establishing protection mechanisms for asylum seekers and refugees in Europe. This theme can easily be extended to the European post-­communist and former Yugoslavian countries,1 where the difficulties are even more severe. This section commentary takes up some of the main arguments from the chapters and puts them into a Central Eastern, Eastern, and South Eastern European perspective. Given the limited space, this will be done in a rather general manner. Nevertheless, it should be noted that refugee policy developed in quite different and puzzling ways in the post-­socialist countries (cf. Shevel, 2011; Barnickel and Beichelt, 2013).

Post-­socialist European countries as rule takers rather than rule makers Phil Orchard’s chapter on the historical development of refugee protection in Europe carves out the tensions between Western countries, in particular the United States, and the Soviet Union in establishing international rules and organisations on this issue. The long-­term implications of the described historical trajectory will be addressed in this commentary. During the Cold War, the communist countries remained outside of the emerging refugee protection regime.2 The Soviet Union ‘viewed the UNHCR [United Nations High Commissioner for Refugees] as an instrument of the Western powers and of anti-­Soviet propaganda’ (Loescher, 2001, p. 51). It had never become a party to the 1951 Refugee Convention and the 1967 Protocol. It was only after the end of the Cold War that Russia, as the successor state, and other post-­socialist countries acceded to the two treaties (for accession dates see Table A). This sudden change resulted in a two-­way shock. On the one hand, these countries did not have any working asylum and refugee protection schemes in place.3 Knowledge about the UNHCR and the international refugee regime had been minimal in the region. Up until this point, they had been rather closed and had almost no experience with asylum seekers and refugees. On the other hand, becoming involved in the post-­socialist space meant that the UNHCR was entering ‘uncharted territory’ and facing a completely new context (Loescher, 2001, p.  278). Thus, in comparison to Western European countries, which represented the majority of the signatories to the 1951 Refugee Convention,4 post-­socialist European countries were norm-­takers who acceded to the Treaty around 40 years after its entry into force. This put the UNHCR in a very special and prominent position, which was much different from its role 330

Section commentary Table A  Accession of European post-socialist countries to the Convention relating to the Status of Refugees (1951) and the Protocol relating to the Status of Refugees (1967) Albania Armenia Azerbaijan Belarus Bulgaria Czech Republic Estonia Georgia Hungary

18 August 1992 6 July 1993 12 February 1993 23 August 2001 12 May 1993 11 May 1993 10 April 1997 9 August 1999 14 March 1989

Latvia Lithuania Poland Republic of Moldova Romania Russian Federation Slovakia Ukraine

31 July 1997 28 April 1997 27 September 1991 31 January 2002 7 August 1991 2 February 1993 4 February 1993 10 June 2002 (Conv.) 4 April 2002 (Prot.)

Source: UN (2017a and b).

in Western European countries. In the post-­socialist countries, asylum and refugee policy had to be developed almost from scratch, and UNHCR was among the first to assist with this tremendous task. Later on, migration and asylum policy became part of the Europeanisation process. As was the case with other parts of the European Union (EU) acquis, the countries included in the 2004, 2007 and 2013 EU enlargements had to adopt the EU’s rules on migration and asylum that were valid at the time. The same is true for the current (potential) candidate countries. However, Europeanisation reaches further than that, as Petra Bendel’s chapter shows. The EU has included migration and asylum issues in its external relations, such as in its Neighbourhood Policy. Adopting a conditionality approach, the EU offers visa facilitation and visa liberalisation in exchange for the signing of readmission agreements and adopting EU rules in the field of asylum, among other areas. While these rules leave room for customisation (i.e. the introduction of more liberal standards in national legislation than demanded by EU law), the post-­socialist countries did not have an opportunity to shape these policies. Except for those countries that acceded to the EU, they remain mainly norm-­takers. As such, the European role in creating rules on asylum and refugee protection, as well as in establishing the respective international organisations described by Orchard, is a Western European role. It is exceptional in the sense that no post-­socialist ‘counter-­model’ has evolved. One problem of norm-­taking from an institutional environment is that the rules to be adopted may conflict with existing efficiency criteria (however these are defined). In order to reconcile conformity to external standards of legitimacy and the deviating practice on the ground, structures may be decoupled (Meyer and Rowan, 1977). Presenting a façade of formally compliant laws and programmes to the outside world, policy actors do not change their behaviour but instead continue to act according to established procedures. This leads to the chapter by Natascha Zaun, who points out the existing gap between rule adoption and rule implementation in some EU member states. This divergence is a problem not only among EU member states; it also applies to the EU’s Eastern and South Eastern neighbours (Freyburg et al., 2015).

The problem of limited state capacity Zaun’s chapter addresses states’ administrative capacity as a major obstacle to the harmonisation of EU asylum policies. In brief, the chapter argues that EU countries with a weak regulatory 331

Anne Wetzel

capacity differ from ‘strong regulators’ in a couple of ways: (1) They receive fewer asylum applications, (2) exert less influence on harmonisation negotiations, (3) face a larger policy misfit after decisions have been taken, and (4) are less capable of implementing the new rules. In fact, parts of this argument can be extended to the post-­socialist countries. Based on the same data source that Zaun used, Figure A shows the differences in government effectiveness between Western EU countries (EU-­W), Eastern EU countries (EU-­E), (potential) EU candidate countries (EU-­C), and Eastern neighbours (EU-­0). The scale ranges from –2.5 (weak) to +2.5 (strong). Limited governance capacity is a major hindrance for the development of adequate asylum procedures and protection schemes in post-­socialist countries. For two and a half decades, states and international organisations have continuously tried to enhance the protection capacity through institution-­building, the provision of office equipment, training, informal working relationships, visits etc. In the early 1990s, ‘[c]apacity-­building … tended to be the main activity for the eight UNHCR offices in Central Europe’ (Crisp, 1996). A little bit later, capacity-­building became an issue in the Eastern and South Eastern countries as well (Crisp, 1996; UNHCR, 2000). These efforts are ongoing, as recent projects such as the EU-­funded and UNHCR-­administered ‘Quality Initiative in Eastern Europe and South Caucasus I and II’ (2013–2017) show. With regard to the Western Balkans, asylum issues are mentioned, among other efforts, in the EU’s Multi-­Country Indicative Strategy Paper 2014–2020 on the Instrument of Pre-­Accession Assistance (European

EU-W-SE EU-0-AM EU-W-PT 2 EU-0-AZ EU-W-NL EU-W-MT EU-0-BY EU-0-GE EU-W-LU 1.5 EU-W-IT

EU-0-MD EU-0-RU EU-0-UA EU-C-AL

1

EU-W-IE

0.5

EU-W-GR EU-W-GB

0

EU-C-BA

EU-W-FR

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EU-C-ME

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EU-C-RS

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EU-C-XK

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EU-E-BG

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EU-E-CZ EU-E-EE EU-E-HR EU-E-HU EU-E-IT EU-E-LV

EU-W-AT EU-E-SK EU-E-SI EU-E-PLEU-E-RO

Figure A The Worldwide Governance Indicators, Government Effectiveness, Estimates 2016 (WGI 2017), for country codes see www.iso.org/obp/ui/#search/code/

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Section commentary

Commission, 2014, p. 16). Thus, the consequences of limited state capacity for asylum and protection are an issue in both Western and Eastern/South Eastern Europe, even though in the case of the latter the problem is much more severe.

Public opinion towards refugees It would be short-­sighted to trace back the implementation problems in the fields of asylum and protection solely to limited state capacity. An additional factor that reflects the East–West divide mentioned in the chapter by Joanne van Selm on European refugee policy is the lack of political priority for refugees at the government level, as well as the public’s disinterest in this issue, in many post-­socialist countries. This also resonates with Bendel’s reference to the increased polarisation between Western European countries and the ‘Visegrad group’, which consists of the Czech Republic, Hungary, Poland and Slovakia. When comparing the data from the European Social Survey on the question of how generous the government should be in judging applications for refugee status, the post-­socialist countries included in the survey are, on average, more sceptical than the Western European countries. Of course, this should not hide the fact that there are huge differences among the Eastern and Western countries, as the examples of the Netherlands or Poland show. The Polish case also shows that attitudes are complex even within single countries. Whereas many Poles are favourable towards the acceptance of refugees from Ukraine, they have become less favourable towards migration from the Middle East and Africa (CBOS, 2016, pp. 5, 7). Overall, however, according to the European Social Survey, Eastern European countries are less open towards immigrants with a different background. When asked whether to allow immigrants who are of a different race or ethnic group compared to that of the majority of the respective country, on average 7.6 per cent of respondents from the included post-­socialist countries were in favour of allowing many (18.2 per cent on average in the Western European countries), 28 per cent were in favour of allowing some (vs. 49.7 per cent), 40.7 per cent were in favour of allowing few (vs. 24.9 per cent) and 23.7 per cent replied that none should be allowed (vs. 7.3 per cent).5 The East–West divide and the polarisation of positions referred to in van Selm’s and Bendel’s chapters are also reflected in a 2016 Eurobarometer survey. Concerning the statement that ‘Our country should help refugees’, only Croatia (where 69 per cent agreed and 27 per cent disagreed; the rest ‘don’t know’) was above the EU-­28 average (63 per cent agree, 30 per cent disagree) with regard to agreement. All other Eastern enlargement countries rank below the EU average (European Commission, 2016, p. 49).6 Thus, taking van Selm’s chapter as a point of departure, one could ask whether European refugee policy will come into existence in the near future. A recent title of an Economist article on how ‘[o]pposition from Eastern Europe threatens to scupper refugee reforms’ (Economist, 2017) succinctly summarises the pessimist outlook on that issue.

Conclusion and perspectives To conclude, Western migration concepts are relevant for the post-­socialist countries. They represent the templates on which post-­socialist states have modelled their migration policies, partly with the help of incentives and active support from Western actors. The issue of state capacity illustrates that problems that exist in some Western European countries are also an issue in the post-­socialist space. Any solutions would thus be relevant for this region as well. On the other hand, the past years have shown an alienation between Western and many post-­socialist 333

Agree strongly

6.6 9.9 7.1 6.1 8.3 23.9 11.5 11.4 5.6 15.6 1.4 12 10.1 11.5 2 2.1 7.5 2.3 3.7

3.3

The government should be generous judging applications for refugee status

Country Austria Belgium Switzerland Germany Finland France UK Ireland Israel Iceland Netherlands Norway Sweden Total Weighted Average West Czech Republic Estonia Poland Russia Slovenia

Total Weighted Average East

18.4

20.7 20.5 29.3 21.1 29.8 30.4 39.3 49 15.7 41.6 15.3 43.5 38.1 28.5 9.9 10.8 39.4 13.4 23.6

Agree

31

23.1 19.5 28.7 23.8 32.1 18.7 25.8 18.8 29.3 26.4 16 24.5 34.8 23.2 18.7 19 32.4 31.7 28.9

Neither agree nor disagree

24.8

27 33.4 26.7 36.5 23.9 14.6 18.9 15.5 29.2 12.8 52.1 15.9 14.1 26.1 30.5 43.9 16 26.4 34.4

Disagree

22.6

22.7 16.6 8.3 12.4 5.9 12.4 4.4 5.3 20.3 3.5 15.2 4 2.9 10.7 39 24.2 4.7 26.3 9.4

Disagree strongly

Table B European social survey, ESS8–2016, ed.1.0, row percentage, population size weight, design weight (ESS 2016)

100

100 100 100 100 100 100 100 100 100 100 100 100 100 100 100 100 100 100 100

Total

15,655.1

730 935.8 702.1 7,085.9 454.4 5,369.2 5,319.4 358.8 582.6 26.1 1,407.3 425.8 796.1 24,193.5 865.2 108.9 3,047.5 11,461.1 172.4

N =

Section commentary 60

Percentage

50 40 30 20 10 0 Allow many to come and live here Total West 2002

Allow some

Allow a few

Total West 2016

Total East 2002

Allow none Total East 2016

Figure B Averages of replies in Eastern and Western European countries included in both European Social Surveys (ESS 2002 and 2016), Population size weight, Design weight (EES 2002 and 2016)

states with regard to asylum and protection issues. A comparison of weighted averages for Western and Eastern European countries included in the European Social Surveys7 2002 and 2016 reveals an increasing polarisation of opinions, especially on allowing immigrants with a different ethnic background, which was the case during the 2015/2016 refugee crisis (see Figure B). ����������������������������������������������������������������������������������������� A similar tendency of negative attitudes towards the European refugee crisis and the subsequent policy responses can also be detected in Russian public opinion, even though this may reflect more general tensions between Russia and the West to some degree (Levada Centre and InterCentre, 2016, pp. 162, 168). Against this background of limited ownership of policy concepts, limited state capacity and a reluctant public opinion, it is questionable as to whether a comprehensive European refugee policy will be emerging soon.

Notes 1 For simplicity, in the following the chapter refers to European post-­socialist countries. 2 In contrast, the former Yugoslavia had signed and ratified the Convention on 28 July 1951 and 15 December 1959, respectively, and had acceded to the Protocol on 15 January 1968 (UN 2017a, UN 2017b). 3 The right to asylum provided in the 1977 Soviet constitution was granted on an individual basis by decision of the presidium of the Supreme Soviet (Shevel 2011: 3). 4 Among the 19 signatories were: Austria, Belgium, Denmark, France, Germany, Greece, Italy, Liechtenstein, Luxembourg, Netherlands, Norway, Sweden, Switzerland, Turkey, and the UK. Today, there are 145 Parties (see https://treaties.un.org/pages/ViewDetailsII.aspx?src=TREATY&mtdsg_ no=V-2&chapter=5&Temp=mtdsg2&clang=_en). 5 See ESS (2016), with population size weight and design weight; West: Austria, Belgium, Switzerland, Germany, Finland, France, United Kingdom, Ireland, Israel, Iceland, Netherlands, Norway, Sweden; East: Czech Republic, Estonia, Poland, Russian Federation, and Slovenia. 6 The values are: SI: 56 per cent ‘agree’ vs. 39 per cent ‘disagree’; PL: 49/40; LT: 45/47; EE: 44/45; LV: 39/54; RO: 36/56; SK: 30/61; BG: 29/60; HU: 27/68; CZ: 21/71; rests to 100 per cent =

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Anne Wetzel ‘don’t know’. The two Western European countries below EU average with regard to agreement are France and Italy. 7 West: Austria, Belgium, Switzerland, Germany, Finland, France, United Kingdom, Ireland, Israel, Netherlands, Norway, Sweden; East: Czech Republic, Poland and Slovenia.

References Barnickel, Christiane and Timm Beichelt (2013): Shifting Patterns and Reactions. Migration Policy in the New EU Member States, East European Politics and Societies and Cultures 27 (3): 466–492. CBOS (2016): O kryzysie migracyjnym po zamachach w Brukseli, Warsaw: Fundacja Centrum Badania Opinii Społecznej, www.cbos.pl/SPISKOM.POL/2016/K_069_16.PDF, last accessed 9 November 2017. Crisp, Jeff (1996): A Review of Capacity Building in Central and Eastern Europe, www.unhcr.org/ research/evalreports/3ae6bcf44/review-capacity-building-central-eastern-europe.html, last accessed 9 November 2017. Economist, The (2017): Opposition from Eastern Europe Threatens to Scupper Refugee Reforms, 9 November, www.economist.com/news/europe/21731162-eu-struggling-build-coherent-asylumsystem-opposition-eastern-europe-threatens, last accessed 16 November 2017. ESS (2002): European Social Survey Round 1 Data, Dataset ESS1–2002, Data file edition 6.5. NSD – Norwegian Centre for Research Data, Norway – Data Archive and distributor of ESS data for ESS ERIC, http://nesstar.ess.nsd.uib.no/webview/, last accessed 9 November 2017. ESS (2016): European Social Survey Round 8 Data, Dataset: ESS8–2016, Data file edition 1.0. NSD – Norwegian Centre for Research Data, Norway – Data Archive and distributor of ESS data for ESS ERIC, http://nesstar.ess.nsd.uib.no/webview/, last accessed 9 November 2017. European Commission (2014): Instrument of Pre-­Accession Assistance. Multi-­Country Indicative Strategy Paper 2014–2020, https://ec.europa.eu/neighbourhood-enlargement/sites/near/files/pdf/key_ documents/2014/20140919-multi-country-strategy-paper.pdf, last accessed 9 November 2017. European Commission (2016): Standard Eurobarometer 85. Report. Spring 2016, http://ec.europa.eu/ commfrontoffice/publicopinion/index.cfm/ResultDoc/download/DocumentKy/75905, last accessed 9 November 2017. Freyburg Tina, Sandra Lavenex, Frank Schimmelfennig, Tatiana Skripka and Anne Wetzel (2015): Democracy Promotion by Functional Cooperation. The European Union and its Neighbourhood, Basingstoke: Palgrave. Levada Centre and InterCentre (2016): Вестник общественного мнения 3–4(122), www.levada.ru//cp/ wp-content/uploads/2017/06/Vestnik-obshhestvennogo-mneniya-3-4-2016.-Levada-TSentr.pdf, last accessed 9 November 2017. Loescher, Gil (2001): The UNHCR and World Politics: A Perilous Path, Oxford: Oxford University Press. Meyer, John W. and Brian Rowan (1977): Institutionalized Organizations: Formal Structure as Myth and Ceremony, The Amer­ican Journal of Sociology 83 (2): 340–363. Shevel, Oxana (2011): Migration, Refugee Policy and State Building in Postcommunist Europe, Cambridge: Cambridge University Press. UN (2017a): Convention relating to the Status of Refugees, https://treaties.un.org/pages/ViewDetailsII. aspx?src=TREATY&mtdsg_no=V-2&chapter=5&Temp=mtdsg2&clang=_en, last accessed 9 November 2017. UN (2017b): Protocol relating to the Status of Refugees, https://treaties.un.org/Pages/ViewDetails. aspx?src=IND&mtdsg_no=V-5&chapter=5&lang=en, last accessed 9 November 2017. UNHCR (2000): Institution- and Capacity-­Building in the Field of Refugee Protection and Asylum, UNHCR Working Paper for meeting of Working Table III of Stability Pact for South Eastern Europe, www.unhcr.org/news/updates/2000/2/3c69210c4/institution- capacity-building- field-refugeeprotection-asylum-unhcr-working.html, last accessed 9 November 2017. WGI (2017): The Worldwide Governance Indicators, http://info.worldbank.org/governance/wgi/#home, last accessed 9 November 2017.

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Part VI

Labour migration in European context

26 The Labour Market Impacts of Immigration in Europe Ravi Parekh and Carlos Vargas-­Silva

Introduction The concern that immigration may have adverse effects on the labour market outcomes of host country residents is one of the key arguments of those campaigning for stricter immigration policies. Overall, the impacts of immigration on the labour market depend on the skills of immigrants, the skills of natives, macroeconomic conditions and the characteristics of the host economy. As such, the validity of concerns about the labour market impact of immigration depend on the group, time period and country under consideration. This chapter explores the evidence on the labour market impacts of immigration putting particular emphasis on the case of Europe. There is a large body of literature looking at the impact of immigration in the United States (for example: Card, 2007; Peri and Sparber, 2009; Boustan, Fishback and Kantor, 2010; Ottaviano and Peri, 2012; Ottaviano, Peri and Wright, 2013; Borjas, 2015; Peri and Yasenov, 2015; Llull; 2017). However, less is known about the case of Europe. Looking at Europe is important given the substantial heterogeneity in countries of origin of migrants, the key role of different migration regimes; such as free movement of workers within the European Economic Area (EEA), differences in labour market regulation across countries and the number of historical events which have led to large migration movements (such as: WWII, the fall of the Berlin wall and the Syrian crisis). The analysis in this chapter starts by providing a conceptual discussion of the mechanisms by which immigrants can affect the European labour market. Then there is a discussion of the empirical regional evidence for Europe. Next, the analysis concentrates on the evidence for three countries: the UK, Germany and Turkey. The UK and Germany are the two countries for which there is more evidence available, while Turkey is included to highlight the recent research on the labour market implications of the so–called ‘refugee crisis’. The final section provides some conclusions in light of the evidence discussed.

Conceptual background The traditional ‘textbook’ model of the impact of immigration on the receiving country’s labour market assumes that immigration leads to an increase in the supply of homogenous workers. 339

Ravi Parekh and Carlos Vargas-Silva Panel B Supply

Wage

Wage

Panel A Supply Supply*

E

E

WL WL*

E* Demand

0

L

L*

0

Employment

L

Employment

Figure 26.1 The textbook model

That is, within a particular skill group, migrant and native workers are assumed to be perfect substitutes. The main logic behind this model is presented in Figure 26.1. For the purpose of the example, all immigrants are assumed to be low skilled. Panel A of Figure 26.1 presents the consequences of low-­skilled immigration for the wages of low-­skilled natives.1 The initial supply of low-­skilled workers (without immigration) is given by L, the equilibrium point is E and the prevailing wage rate is WL. Immigration leads to an increase in the supply of homogenous workers from L to L*. As a result of immigration, the wage rate decreases from WL to WL*. As such, an influx of low-­skilled immigrant workers into the economy lowers the wage rate for the native low-­skilled workers. Please note that low-­skilled immigrants, in this case, do not necessarily mean those with low levels of education, but rather those doing low-­skilled work in the host country. This is important because many European migrants ‘downgrade’ after migration, that is, they accept jobs that do not correspond to their educational levels (Voitchovsky, 2014). There are three important considerations to keep in mind when evaluating the insights of the textbook model and the implications for the empirical evidence: the slope of the labour demand curve, the complementarity between immigrants and natives of different skills and the possibility of heterogeneous skills. These three considerations are discussed below. A key insight from the textbook model is that the impact of immigration on wages depends on the slope of the labour demand curve. This slope reflects the responsiveness of the economy to changes in labour supply. Panel B presents three possible labour demand curves. In the case of the lighter curve, where the wage rate is more responsive to changes in the supply of workers, immigration would result in a greater reduction of wages. In the case of the darker curve there would also be a reduction, however to a smaller degree. This is important because labour markets in European countries have different degrees of flexibility. Some are very flexible (e.g. the UK), while others are less flexible (e.g. Sweden). It is also important to note that, while those native workers who are similar to immigrants in their skills may lose from immigration, other workers with different skills may gain. For instance, an inflow of low-­skilled workers is expected to decrease the wages of low-­skilled natives, but increase the wages of high-­skilled natives. The reason for the increase in wages for high-­skilled natives is that these workers do not compete with low-­skilled immigrants for work and actually benefit from their presence (i.e. complements instead of substitutes). 340

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Several studies also suggest that the heterogeneity in the labour market goes beyond the broad classifications of high and low-­skilled people (see D’Amuri and Peri, 2014; Cattaneo, Fiorio and Peri, 2015) and propose a model in which natives and immigrants from the same ‘skill level’ could complement each other. For low-­skilled migration, the main idea is that manual skills are easily transferrable across countries, but this is not the case for communication skills. This is particularly relevant in Europe given the large diversity of spoken languages across countries. As a result, low-­skilled immigrants have a comparative advantage in manual-­intensive jobs, while low-­skilled natives have an advantage in communication-­intensive jobs due to better language skills. In this case immigration could result in native workers moving towards jobs in which they have a comparative advantage.

Regional evidence Several studies have looked at the impacts of immigration on labour market outcomes of natives in multiple European countries. One of the earlier studies, Angrist and Kugler (2003), studied EU15 and EEA countries between 1983 and 1999, focussing on the impact of immigration on native employment rates. This study also explores how these impacts interact with institutional features such as labour standards. They find a negative effect of immigration on native employment, which they attribute to labour market rigidities in Europe. They suggest that natives lose 35 to 83 jobs per 100 additional immigrants. With regards to the role of labour market institutions, the study finds that the negative impact of immigrants on employment rates seems to worsen with more rigid institutions and in particular labour standards. This comes despite the fact that such measures are intended to protect native workers. Theoretically, this result does seem to be in line with the idea that if wages cannot fall, an increase in the supply of labour will lead to more unemployment. In contrast to this, the other papers that consider EU15 countries, do not find a significant negative impact on employment rates of natives. D’Amuri and Peri (2014) consider 14 of the EU15 countries and Norway between 1996 and 2010, looking at whether foreign-­born migrants cause native workers to shift towards higher-­skilled tasks. They note that in 11 of these countries for which there is complete data, the share of immigrants nearly doubled from under 8 per cent to almost 14 per cent. They find that immigration does in fact push natives into more complex tasked work, such that they estimate an increased share of immigrants increases native specialisation into more complex skilled work by 5–6 per cent. However, the results suggest that immigration does not significantly affect native unemployment, but imply that increases in the foreign-­born share of the population were associated with 0.7 per cent higher native wages. This study also looks at institutional aspects of the labour market and how these impact the effect that immigration has on natives. Specifically, they find that the reallocation of natives into complex jobs is more intense in less protected labour markets and that in these labour markets reallocation is stronger for workers with lower levels of education. These findings resonate with Angrist and Kugler’s (2003) regarding the rigidity of labour market institutions. Interestingly, D’Amuri and Peri (2014) find that this specialisation into more complex tasks as a result of immigration, even occurs during negative labour demand shocks such as during recession years, albeit at a slower pace. On a similar theme, a pair of studies, Cattaneo, Fiorio and Peri (2013) and Cattaneo, Fiorio and Peri (2015), on the careers of native workers in 11 of the EU15 countries, both find similar results to D’Amuri and Peri (2014). These studies, uniquely, track the careers of individuals between 1995 and 2001. Cattaneo, Fiorio and Peri (2013) find that a percentage point increase in the share of immigrants increases the probability that native workers will move on to higher 341

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skill occupations in the next two years by around 0.8–1.1 per cent. Again, as with D’Amuri and Peri (2014), both studies indicate that there is no significant impact of immigration on the probability of the natives becoming unemployed. Cattaneo, Fiorio and Peri (2015) do find however, that self-­employed natives are likely to leave self-­employment as a result of immigration, presumably because immigrants themselves are more likely to be self-­employed. Upgrading occupations is evidence of the labour market absorbing immigrants. It is through the complementarity of immigrant workers taking up lower-­skilled jobs, that demand is driven for higher-­skilled occupations, which natives are better suited towards. This complementary effect serves as a form of protection for natives against the competition that the immigrants would otherwise represent. Cattaneo, Fiorio and Peri (2013) fail to find any significant impact on the wages of natives, despite upgrading occupations. However, Cattaneo, Fiorio and Peri (2015) find some indications of increased native wages after a lag. The reason behind the lag could be due to the fact that the higher wages in these occupations take a longer time to accrue because workers need time to gain new job-­specific skills before they receive higher wages. Cattaneo, Fiorio and Peri (2013) also look into the role of institutions in this reallocation of native workers and find some preliminary indications that the mobility of workers into higher-­skilled occupations is greater in countries with lower social expenditure and lower employment protections, as well as those with high product market regulation. The findings of this pair of studies and D’Amuri and Peri (2014) seem to paint a similar picture regarding the way that native workers in EU countries upgrade occupations when faced by immigration. Although these studies seem to find different results with regards to unemployment, it is important to note that they consider different time periods and slightly different groups of countries. It is also interesting that despite their disparate findings with regards to unemployment, their consideration of the role of institutions leads to similar results, which may contrast with the US where labour markets tend to be less rigid (a topic discussed in: Nickell, 1997; Nickell and Layard, 1999; Mortensen and Pissarides, 1999; Blanchard and Wolfers, 2000; Neumark and Wascher, 2004). D’Amuri and Peri (2014) in fact contrast their relatively more modest results, with those Peri and Sparber (2009) find for the US, noting that it may be down to more rigid employment protections in Europe. Several studies have relied on simulations to explore the labour market impact of immigration. For example, Docquier, Ozden and Peri (2014) simulated the impact of immigration on labour market outcomes in Organisation for Economic Co-­operation and Development (OECD) and current EU countries between 1990–2000, and a few of these countries between 2000–2007. These simulations vary by different scenarios regarding the degree of substitution between immigrants and natives. In the ‘pessimistic’ scenario, immigrants are perfect replacements of native workers, whereas in the ‘optimistic’ scenario natives are less substitutable. Generally Docquier, Ozden and Peri (2014) estimate small positive wage impacts in the pessimistic case, and positive wage impacts of varying sizes in the optimistic case. Poland and Baltic countries are exceptions, where in the optimistic case there are large falls in native wages, while other former socialist countries; Romania and Hungary have almost no impact from immigration on wages nor employment. In terms of wages, less-­educated natives seem to have benefited more. With regards to employment of natives, Docquier, Ozden and Peri (2014) find either small and generally positive effects or no effects regardless of scenario or country. Kone, Mattoo and Ozden (2017) ran similar simulations to explore the impact on wages, for a slightly different group of countries between 2000 and 2010 (including Norway and excluding some Eastern European countries), to explore the impact of age groups. Their simulations are comparable to the intermediate scenario in Docquier, Ozden and Peri (2014). They find that in all European countries, besides Belgium and Finland, immigration has negative impacts on the 342

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wages of high-­skilled workers and positive impacts on the wages of low-­skilled workers, regardless of age. For the most part, immigration’s impact on wages is small and largely positive, except for high-­skilled workers, similar to Docquier, Ozden and Peri (2014). There are some relatively more extreme results, for example Luxembourg, the UK and Switzerland show relatively large negative effects for highly skilled natives, and relatively large positive effects for low-­skilled workers.

Individual country evidence Looking at studies that look at individual European countries presents us with more studies and diverse evidence on how immigration affects natives. As explained above we focus on three countries: the UK, Germany and Turkey.

United Kingdom As a major recipient of European and non-­European migrants, the UK has multiple studies dedicated to exploring the labour market impacts of immigration. Concerning wages, Dustmann, Frattini and Preston’s (2013) study of the UK between 1997 and 2005, finds that an increase in the number of immigrants corresponding to 1 per cent of the UK-­born working-­age population resulted in an increase in average wages of 0.1 to 0.3 per cent. However, the impact is felt differently by different skill groups, and this study finds that the lowest paid native workers tend to see their wages fall as a result of immigration, whereas higher-­skilled native workers see an increase in their wages. Another study looking between 2000 and 2007, finds the opposite impact; that an increase in immigrants slightly reduces average wages by almost 0.3 per cent (Reed and Latorre, 2009). The impact with regards to workers in different occupations is explored by Nickell and Saleheen (2008) and Nickell and Saleheen (2015), which consider 1992 to 2006 and 1992 to 2014 respectively. The former finds that an increase in the share of migrants reduced wages in unskilled and semi-­skilled service sector jobs by 0.5 per cent, while the latter finds a similar result albeit the reduction is around 0.2 per cent. Manacorda, Manning and Wadsworth (2012) look at the period between 1975 and 2005, and find that the main adverse impact of immigration on wages falls upon earlier migrants, while native-­born workers did not face any major impact. With regards to unemployment, Dustmann, Fabbri and Preston (2005) find no statistically significant impact on overall employment outcomes for UK-­born workers during 1983–2000, but find that UK-­born workers with intermediate education could expect a significantly adverse effect, whereas those with advanced education could expect a positive impact on their employment outcomes. Lemos and Portes (2008) focus on how A8 (EU accession 8) immigrants affect the UK claimant count (number of people claiming unemployment benefits) and find little evidence for an adverse impact between May 2004 and November 2005. Lucchino, Bondibene and Portes (2012) similarly find that immigration did not affect employment outcomes between 2002 and 2011, not even during periods of recession. The Migration Advisory Committee (2012) conducted a study looking between 1975 and 2010, and its findings suggest that immigrants overall have no impact on UK-­born employment, but that non-­EU migrants had adversely affected UK-­born workers’ employment for the 1995–2010 period. By contrast, EU workers had no significant impact.

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Germany Like the UK, Germany has also been a large magnet of immigration. The immigration waves following the fall of the Berlin wall are of particular interest to quite a few studies, because they provide ‘natural experiments’ that facilitate the identification of causality. One example is the repatriation of ethnic Germans from Eastern Europe and the USSR. Many of these immigrants migrated without jobs waiting for them in Germany, and so the government attempted to evenly allocate them across Germany, independent of labour market conditions. Glitz (2012) exploits this natural experiment to investigate the impact of the repatriation on the native population in West Germany (excluding Berlin) between 1996 and 2001 (while the allocation policy was in effect) and finds that while there was no impact on wages, for every ten additional migrants in the labour market, there were 3.1 additional unemployed natives in the short run. This may be reflective of substitution and labour market rigidities. D’Amuri, Ottaviano and Peri (2010) look at the impact migration in West Germany had between 1987 and 2001. They find a small adverse impact on wages, which particularly affects previous immigrants. While native employment is unaffected, earlier immigrants see a negative impact that is driven by wage rigidities and closer competition. Brücker and Jahn (2008) consider Germany between 1980 and 2004. They find that in the short run, immigration has very small adverse impacts on aggregate unemployment and average wages, which increase by less than 0.1 per cent and falls by less than 0.1 per cent respectively, as a result of a 1 per cent increase of immigrants in the German labour force. In the longer run, this impact neutralises however. This study also finds that earlier foreign workers and lower-­skilled natives are particularly adversely impacted by immigration, even in the long run. Both studies therefore, seem to reflect the idea of heterogeneity of natives and immigrants, leading to more direct competition between earlier and new migrants. Dustmann and Glitz (2015) look at how immigration impacted different German sectors between 1985 and 1995, finding strong adverse impacts on wages for workers in ‘non-­tradable sectors’ but not in other sectors. Another interesting case in German immigration history was a policy between 1990 and 1993 that allowed Czech workers to commute and work across the German border without being given residency rights in Germany. Dustmann, Schönberg and Stuhler (2017) examine the impacts of the subsequent immigration that occurred and found that by 1993, a 1 per cent increase in the share of Czech workers in a local labour market, lead to moderate declines in local wages (about 0.13 per cent) and a sharp decline in the employment of natives (about 0.9 per cent). The fall in employment was due to reduced hiring rather than separation for those already in work, and lower-­skilled natives, who matched the skill profiles of the Czechs more closely, were more affected. Importantly, the immigrants did not live and consume in Germany and thus their adverse impact was not offset by them introducing additional consumption demand into the local economies. Looking at earlier waves of German immigration, Pischke and Velling (1997) find no significant evidence that immigrants between 1985 and 1989 had displaced natives in terms of unemployment, nor that immigrant inflows affected the internal migration of natives during that period.

Turkey Turkey has recently become a focus of research on the labour market impacts of immigration in Europe given the recent inflow of refugees from Syria. Del Carpio and Wagner (2015) using the 2014 distribution of Syrian refugees, find large-­scale displacement for natives in the informal 344

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sector, with ten Syrian refugees displacing around six workers from the informal sector. They also find concurrently that for every ten Syrian migrants, three formal jobs are created. However they note that native women do not see an increase in employment in the formal sector and see net displacement, while men’s informal displacement is largely offset by new formal jobs. They also find that low-­skilled workers are particularly disadvantaged, with more displacement from the informal sector than entrance to the formal sector. Ceritoglu et al. (2017) find no impact on Turkish wages between 2010 and 2013 (2011 being the shock year) in areas which received large inflows, but also find significant employment outcomes with an increase in unemployment of around 0.7 percentage points, and a reduction in likelihood of being in informal employment of 2.2 percentage points (1.9 percentage points for men and 2.6 for women) and increase in likelihood of being in formal employment by 0.4 percentage points, Ceritoglu et al. (2017) note that Syrian refugees are not allowed to work officially and thus the impact is mostly in the informal sector. Akgündüz, van den Berg and Hassink (2015) treating 2011 as the shock year and looking at 2012 and 2013, by contrast find that employment rates of different skill groups are largely unaffected, arguing that this may be because Syrian refugees are unable to compete with native incumbents. They do see that internal migration into regions with Syrian refugees has slowed down, but exit migration from the regions is unaffected. These studies are largely concerned with the very initial-­run impacts of the influx of Syrian refugees in Turkey’s border regions, and the longer-­run implications may take more time to become fully apparent. Nonetheless this impact in Turkey, clearly relates to the presence of informal labour market opportunities for Syrians, and also potentially different mobility between sexes. This may be indicative of relatively different social and markets institutions in Turkey, as compared with the EU15 countries considered earlier.

Conclusions There are several possible conclusions that can be made about the impact of immigration on the European labour market. First, the literature is heavily concentrated on Western Europe. Second, the results depend on the flexibility of the labour market in question. This differentiates Europe from other parts of the world, as there is a very large degree of variation in labour market regulation, profoundly altering the ways that labour markets react to immigration even among countries that are otherwise similar in other types of regulations (e.g. among members of the EU). This may also explain some of the diverse and occasionally contrasting results, alongside factors like the time period considered, nature of migration flows and other economic conditions. There are some suggestions that institutions are generally more rigid in Europe as compared with the US, driving differences in outcomes between the US and Europe. Third, studies find that natives tend to upgrade occupationally in response to immigration, but earlier migrants (and in Turkey, women) tend to be negatively impacted. This suggests some labour market complementary between migrants and natives of the same skill level, and could relate to the multilingual nature of Europe.

Note 1 We are using the term natives as for simplicity we assume that this is an economy without immigrants in the first stage. The same conclusions hold if we allow for previous migration waves and use the term ‘resident population’.

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References Akgündüz, Y., Van Den Berg, M. and Hassink, W. H. (2015). The impact of refugee crises on host labor markets: the case of the Syrian refugee crisis in Turkey. IZA Discussion Paper. 8841. Angrist, J. D. and Kugler, A. D. (2003). Protective or counter-­productive? Labour market institutions and the effect of immigration on EU natives. The Economic Journal, 113(488), F302–F331. Blanchard, O. and Wolfers, J. (2000). The role of shocks and institutions in the rise of European unemployment: the aggregate evidence. The Economic Journal, 110(462), 1–33. Borjas, G. J. (2015). The wage impact of the Marielitos: A reappraisal. NBER Working Paper No. w21588. National Bureau of Economic Research. Boustan, L. P., Fishback, P. V. and Kantor, S. (2010). The effect of internal migration on local labor markets: Amer­ican cities during the Great Depression. Journal of Labor Economics, 28(4), 719–746. Brücker, H. and Jahn, E. J., (2008). Migration and the wage curve: a structural approach to measure the wage and employment effects of migration. IZA Discussion Paper, 3423. Card, D. (2007). How immigration affects US cities. CReAM Discussion Paper 711. Department of Economics, University College London. Cattaneo, C., Fiorio, C. V. and Peri, G. (2013). Immigration and careers of European workers: effects and the role of policies. IZA Journal of European Labor Studies, 2(1), 17. Cattaneo, C., Fiorio, C. V. and Peri, G. (2015). What happens to the careers of European workers when immigrants ‘take their jobs’?. Journal of Human Resources, 50(3), 655–693. Ceritoglu, E., Yunculer, H. B. G., Torun, H. and Tumen, S. (2017). The impact of Syrian refugees on natives’ labor market outcomes in Turkey: evidence from a quasi-­experimental design. IZA Journal of Labor Policy, 6(1), 5. Del Carpio, X. V. and Wagner, M. (2015). The impact of Syrians refugees on the Turkish labor market. World Bank Policy Research Working Paper 7402. Docquier, F., Ozden, Ç. and Peri, G. (2014). The labour market effects of immigration and emigration in OECD countries. The Economic Journal, 124(579), 1106–1145. D’Amuri, F., Ottaviano, G. I. and Peri, G. (2010). The labor market impact of immigration in Western Germany in the 1990s. European Economic Review, 54(4), 550–570. D’Amuri, F. and Peri, G. (2014). Immigration, jobs, and employment protection: evidence from Europe before and during the great recession. Journal of the European Economic Association, 12(2), 432–464. Dustmann, C., Fabbri, F. and Preston, I. (2005). The impact of immigration on the British labour market. The Economic Journal, 115(507), F324–F341. Dustmann, C., Frattini, T. and Preston, I. P. (2013). The effect of immigration along the distribution of wages. The Review of Economic Studies, 80(1), 145–173. Dustmann, C. and Glitz, A. (2015). How do industries and firms respond to changes in local labor supply?. Journal of Labor Economics, 33(3), 711–750. Dustmann, C., Schönberg, U. and Stuhler, J. (2017). Labor supply shocks, native wages, and the adjustment of local employment. The Quarterly Journal of Economics, 132(1), 435–483. Glitz, A. (2012). The labor market impact of immigration: a quasi-­experiment exploiting immigrant location rules in Germany. Journal of Labor Economics, 30(1), 175–213. Kone, Z., Mattoo, A. and Ozden, C. (2017). Labor market effects of demographic shifts and labor mobility in OECD countries. Working Paper. Lemos, S. and Portes, J. (2008). New labour? The impact of migration from Central and Eastern European countries on the UK labour market. IZA Discussion Paper, 3756. Llull, J. (2017). The effect of immigration on wages: exploiting exogenous variation at the national level. Journal of Human Resources, 0315–7032R2. Lucchino, P., Bondibene, C. R. and Portes, J. (2012). Examining the relationship between immigration and unemployment using National Insurance Number registration data. NIESR Discussion Paper No. 386. National Institute of Economic and Social Research. Manacorda, M., Manning, A. and Wadsworth, J. (2012). The impact of immigration on the structure of wages: theory and evidence from Britain. Journal of the European Economic Association, 10(1), 120–151. Migration Advisory Committee (2012). Analysis of the impacts of migration. Home Office, London. Mortensen, D. T. and Pissarides, C. A. (1999). Unemployment responses to ‘skill-­biased’ technology shocks: the role of labour market policy. The Economic Journal, 109(455), 242–265. Neumark, D. and Wascher, W. (2004). Minimum wages, labor market institutions, and youth employment: a cross-­national analysis. ILR Review, 57(2), 223–248.

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Labour market impacts of immigration Nickell, S. (1997). Unemployment and labor market rigidities: Europe versus North America. The Journal of Economic Perspectives, 11(3), 55–74. Nickell, S. and Layard, R. (1999). Labor market institutions and economic performance. Handbook of labor economics, 3, 3029–3084. Nickell, S. and Saleheen, J. (2008). The impact of immigration on occupational wages: British evidence. Federal Reserve Bank Boston Working Paper, 6. Nickell, S. and Saleheen, J. (2015). The impact of immigration on occupational wages: evidence from Britain. Staff Working Paper, 574. Bank of England. Ottaviano, G. I. and Peri, G. (2012). Rethinking the effect of immigration on wages. Journal of the European Economic Association, 10(1), 152–197. Ottaviano, G. I., Peri, G. and Wright, G. C. (2013). Immigration, offshoring, and Amer­ican jobs. The Amer­ican Economic Review, 103(5), 1925–1959. Peri, G. and Sparber, C. (2009). Task specialization, immigration, and wages. Amer­ican Economic Journal: Applied Economics, 1(3), 135–169. Peri, G. and Yasenov, V. (2015). The labor market effects of a refugee wave: Applying the synthetic control method to the Mariel boatlift. NBER Working Paper No. w21801. National Bureau of Economic Research. Pischke, J. S. and Velling, J. (1997). Employment effects of immigration to Germany: an analysis based on local labor markets. Review of Economics and Statistics, 79(4), 594–604. Reed, H., and Latorre, M. (2009). The economic impacts of migration on the UK labour market. Economics of migration working paper, 3. Institute for Public Policy Research, London. Voitchovsky, S. (2014). Occupational downgrading and wages of New Member States immigrants to Ireland. International Migration Review, 48(2), 500–537.

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27 Allowing refugees to work or not? Policies and the economic integration of refugees in the EU Sonja Fransen and Kim Caarls Introduction With increasing numbers of asylum seekers and refugees reaching European soil over the past years, the economic integration of refugee populations has once again risen high on the policy agenda in Europe (Bevelander, 2016). Both recent and historic studies have shown that asylum seekers and refugees fare worse on the job market compared to native populations and other immigrant groups (Desiderio, 2016; EC-­OECD, 2016), making them among the most vulnerable populations in the European employment market. Refugee integration has consequently become an important policy goal in Europe (Cheung and Phillimore, 2014). Access to the labour market is generally regarded as an essential determinant of long-­term refugee integration in European host societies (UNHCR, 2013). The ������������������������� EU Common Basic Principles of Immigrant Integration, for example, state that ‘employment is a key part of the integration process and is central to the participation of immigrants, to the contributions immigrants make to the host society, and to making such contributions visible’ (CPB 3 in Annex I). When refugees have access to the labour market, other facets of the integration process are facilitated and encouraged, and refugees are able to make a positive impact on host country economies (Konle-­Seidl and Bolits, 2016). Nevertheless, in practice many obstacles still hinder asylum seekers and refugees to participate equally in their host country labour markets. In principle, refugees in host countries have the same access to the labour market as native-­ born populations. However, as this chapter will show, countries differ substantially in terms of their policies and practices leading to variations in the labour market outcomes for refugees. Despite increasing academic and policy interest, our knowledge about the labour market integration of refugees in Europe is still limited. European migration studies have generally overlooked the issue of refugee labour market integration in national settings and an even larger research gap exists in terms of comprehensive comparative studies across Europe and beyond. This is mostly due to the lack of data on specific categories of immigrants, as most surveys do not distinguish between refugees, labour migrants, and family migrants (Bevelander, 2016), as well as the lack of migrant impact studies in most countries (Bilgili, 2015). This chapter reviews policies and practices in Europe and elsewhere, regarding refugees’ and asylum seekers’ right to work, and examines how these policies affect their labour market integration. In the first section, we examine policies concerning access, and subsequent integration, 348

Allowing refugees to work or not?

into the labour market. Whereas some countries have extensive experience in hosting asylum seekers and refugees and have implemented comprehensive policies to facilitate the economic integration of these groups, other countries have only recently experienced increased inflows and have implemented weaker or fewer policy instruments. Second, we review the current labour market participation of refugees across (mainly) European countries. Third, we discuss the empirical evidence on the relation between these asylum and integration policies and the labour market outcomes of refugees, and other key factors that determine how refugees fare on the labour market. We conclude this chapter by summarizing the main findings.

Asylum and refugee integration policies We start by distinguishing between asylum seekers and refugees and the relevant policies that affect these groups. Asylum seekers are those who applied for asylum under the 1951 Refugee Convention on the Status of Refugees on the ground of a well-­founded fear of persecution on account of race, religion, nationality, political belief or membership of a particular social group (UN General Assembly, 1951). Only if an asylum application is successful, the asylum seeker is officially a refugee. This distinction is important to make, because different types of policies affect the long-­term economic integration of asylum seekers and refugees at dissimilar stages of their migration process. In 2005, aiming to protect the rights of asylum seekers and refugees and to ensure minimum standards for the reception of asylum seekers, the European Union (EU) drafted a set of laws forming the Common European Asylum System (CEAS). The CEAS defines the minimum procedural standards in processing asylum requests and the treatment of both asylum seekers and refugees. One of the key issues at the European and national level is the legal access of asylum seekers and refugees to the labour market and their social and economic integration (UNHCR, 2013). Specific EU directives regulate labour market access of asylum seekers, refugees and other third-­country nationals. Following these European agreements, asylum seekers and refugees should receive equal access to labour markets across the EU. However, despite these harmonization efforts at the EU level, national differences in reception, access to employment, health services, and social rights have remained resulting in different immigration and asylum realities in Member States (Brekke and Brochmann, 2014). In the following sections, we provide details about the legal and policy context for accessing the labour market in European countries and elsewhere.

Labour market access for asylum seekers In 2013, the EU drafted a new Reception Conditions Directive stipulating the minimum standards for the reception of those seeking international protection. Article 15 deals with access to the labour market for asylum seekers in the EU (Directive 2013/33, in force since July 2015). This Directive is binding for all Member States, with the exception of Denmark, Ireland and the UK. According to Article 15, all asylum seekers should be granted access to the labour market within nine months after lodging the application for international protection, provided that any delay of the asylum procedure is not attributable to the applicant. However, Member States are allowed to impose additional conditions and to prioritize nationals of the European Economic Area and legally residing third-­country nationals during the asylum process (2013/33/EU, Article 15–2). Although Member States should ensure effective access to the labour market, in practice these additional conditions may hinder asylum seekers from finding employment in their host countries. 349

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Table 27.1 shows the different conditions for asylum seekers’ labour market access in many European countries, as well as beyond (AIDA, 2016; EEPO, 2016; OECD, 2016). In this list of countries, Ireland, Lithuania and Turkey entirely deny labour market access to asylum seekers. In Ireland, these provisions are currently debated. The situation is more complicated in Turkey due to the ‘geographical exclusion’ clause Turkey adopted when signing the 1951 Refugee Convention, providing full refuge only to those originating from countries that are members of

Table 27.1  Overview of labour market access for asylum seekers in 34 selected countries

Austria Belgium Bulgaria Canada Chile Croatia Cyprus Czech Republic Denmark Estonia Finland France Germany Greece Hungary Ireland Italy Lithuania Luxembourg Malta Netherlands New Zealand Norway Poland Portugal Serbia Slovakia Slovenia Spain Sweden Switzerland Turkey United Kingdom (UK) United States (US)

Formal access to labour market

Labour market tests

Sector limitation

yes/no

waiting time (months)

yes/no

yes/no

✓ ✓ ✓ ✓ ✓ ✓ ✓ ✓ ✓ ✓ ✓ ✓ ✓ ✓ ✓ ✗ ✓ ✗ ✓ ✓ ✓ ✓ ✓ ✓ ✓ ✓ ✓ ✓ ✓ ✓ ✓ ✗ ✓ ✓

3 4 12 0 0 9 6 6 6 6   3–6 9 3 0 9  ✗ 2  ✗ 6 12 6 0 0 6 1 9 9 9 6 0   3–6  ✗ 12 6

✓ ✗ ✗ ✗ ✗ ✗ ✓ ✗ ✗ ✗ ✗ ✗ ✓ ✓ ✓ ✗ ✗ ✗ ✓ ✗ ✗ ✗ ✗ ✗ ✗ ✗ ✗ ✗ ✗ ✗ ✓ ✗ ✓ ✗

✓ ✗ ✗ ✗ ✗ ✗ ✓ ✗ ✗ ✗ ✗ ✗ ✓ ✗ ✗ ✗ ✗ ✗ ✗ ✗ ✗ ✗ ✗ ✗ ✗ ✗ ✗ ✗ ✗ ✓ ✓ ✗ ✓ ✗

Source: Adapted from: AIDA (2016). Figures refer to the situation at the end 2015. Additions from EMN (2016), EEPO (2016) and OECD (2016).

350

Allowing refugees to work or not?

the Council of Europe (Ercan, 2016; İçduygu, 2016). Asylum seekers from other countries may be granted temporary protection, allowing them to temporarily access the labour market under strict conditions, but the possibility of integrating in Turkey is denied (EEPO, 2016). Other countries formally grant access to the labour market for asylum seekers, but additional conditions effectively prohibit or at least hamper asylum seekers’ labour market participation. The waiting period before being granted access to the labour market varies across countries, ranging from immediate access (such as in Canada, Chile, Greece, Norway and Sweden) to 12 months (such as in the UK, Bulgaria, and Malta). Lengthy asylum procedures without labour market access are particularly detrimental for asylum seekers. These waiting periods do not only have a psychological impact, but they also create gaps in employment that affects future employability (EEPO, 2016). In Germany, asylum seekers can officially access the labour market after three months, but they are not allowed to work during their stay in a reception centre. Asylum seekers from ‘safe countries’ cannot leave reception centres, and asylum seekers from ‘non-­safe’ countries are often obliged to stay in these centres for longer periods, implying that they have no access to the labour market (see, UNHCR, 1991, for a discussion of the safe country concept). In the Netherlands, asylum seekers are allowed to work only 24 weeks per year. These, and additional administrative hurdles, make it unattractive for employers to hire asylum seekers in the Netherlands. Other examples of impeding factors include requirements to speak the official language, administrative burdens, and the failure to recognize qualifications and diplomas (AIDA, 2016; EEPO, 2016; OECD, 2016).

National labour market policies for refugees Equal rights to be employed or self-­employed for refugees in the EU have been laid down in the Qualification Directive (2011/95/EU). This includes having equal access to procedures for the recognition of qualifications as nationals have. Additionally, when provision of documentation proves difficult, refugees have access to measures that allow for an assessment of prior learning (2011/95/EU, Article 28). Members States should also ensure equal access to vocational training. The realities of labour market access for refugees are however markedly different across Europe and beyond. In Figure 27.1, we depict the overall score on the Migrant Integration Policy Index (MIPEX) for all EU Member States, as well as Switzerland, Norway, Iceland and Turkey. MIPEX provides information on integration policies for all migrants, including refugees. Here, we focus on labour market mobility, which captures four policy dimensions related to labour market integration: labour market access, access to general support, targeted support, and workers’ rights. Countries are ranked from critically unfavourable (score 0) to favourable (score 80–100) regarding these policies. Sweden ranks first on the labour market mobility index (MIPEX, 2014). Immigrants have equal access to the labour market and education and training programs are highly attainable. Scandinavian countries are unique in the European context in terms of their extensive integration policies and particularly those related to labour market mobility for migrants. Norway and Finland have a long history of generous refugee admission policies, particularly for resettled refugees, extensive refugee integration policies, and a political system that promotes societal diversity and multiculturalism (Castles and Miller, 2009). The comprehensiveness of Scandinavian integration policies has often been ascribed to the strength of their welfare states (Eastmond, 2011; Sainsbury, 2006; Valenta and Bunar, 2010). Valenta and Bunar (2010), for example, describe the emergence of welfare states in Sweden and Norway after the Second World War, and how politics of inclusion incorporated refugees and other immigrants. Sweden and Norway 351

Sonja Fransen and Kim Caarls

80–100 – Favourable

60–79 – Slightly favourable

41–59 – Halfway favourable

21–40 – Slightly unfavourable

1–20 – Unfavourable

0 – Critically unfavourable

Figure 27.1  Labour market mobility conditions across countries Source: MIPEX (2016).

focus particularly on providing accommodation to facilitate residential integration and employment support (Valenta and Bunar, 2010). Notwithstanding these exemplary practices, refugees still hold disadvantaged positions in these countries and are not fully integrated into the labour market (Bevelander and Irastorza, 2014; Edin et al., 2004; Valenta and Bunar, 2010). In Sweden, for example, the labour market participation of refugees increases over time, but refugees also have the worst starting point with the lowest employment rates shortly after arrival (Bevelander and Irastorza, 2014). More unfavourable labour market policies are common in Eastern European countries, such as Lithuania, Poland, Slovakia and Hungary. These countries generally have smaller migrant populations, which were mostly created by border changes rather than actual population movements, lowering the necessity to develop comprehensive migrant integration policies (OECD­EC, 2015). Turkey scores lowest on the MIPEX index. As Turkey has historically not been an immigrant country, labour market policies are not well developed and immigrant workers have limited labour market access (İçduygu, 2016). In response to the recent Syrian refugee inflow, Turkey provided temporary identification cards and the right to employment from six months after registration since January 2016 (ibid.). However, numerous bureaucratic hurdles warrant actual labour market access. These hurdles, aimed at protecting Turkish citizens, include, for 352

Allowing refugees to work or not?

example, a provision that employers must demonstrate to have at least five Turkish citizens at work for every foreign citizen. Moreover, the Ministry of Labour evaluates the applications and educational backgrounds of applicants to see if a compelling case can be made to hire a foreigner instead of a Turkish citizen. State support is practically non-­existent and equal rights for migrants are not ensured (AIDA, 2016; Ercan, 2016). As a result, many asylum seekers end up working illegally and are vulnerable to abuse and exploitation (AIDA, 2016; Ercan, 2016). Refugee flows in Europe have diversified over the last decades, not only in terms of origin countries, but also with respect to educational backgrounds, family situations, skills and resources (OECD, 2016). Dealing adequately with this diversity requires tailored integration support. While most Organisation for Economic and Co-­operation and Development (OECD) countries have developed instruments for refugees’ labour market integration, these vary across OECD countries, as shown in Table 27.2. Next to the elaborate integration schemes in Scandinavian countries, we can highlight Canada’s Refugee and Humanitarian Resettlement Program that also offers diverse, flexible courses geared towards specific needs of different groups of refugees, for example distinguishing between classroom and online training, full- and part-­ time schemes, including child care services enabling participation of those with family obligations (OECD, 2016). Although costly, on-­the-job language trainings offer opportunities for refugees to quickly get their qualifications matched with domestic ones, and these trainings have proven to be extremely effective (ibid.). These types of programs are also available in countries such as Australia and Switzerland.

Labour market outcomes of refugees Few studies have specifically focused on the economic integration of refugees in Europe (Bevelander, 2016; Cangiano, 2014; Pastore, 2010; 2014). Many authors ascribe this lack of evidence to the dearth of quantitative data on refugees, and particularly asylum seekers, in Europe. However, due to the growing focus on refugee integration in European countries, the importance of adequate data collection has been increasingly acknowledged. For example, the 2014 European Labour Force Survey (EU-­LFS), unlike earlier LFSs, collected information on migrants’ reasons for migration. These data allow for a comparison of labour market participation of refugees, other migrants and native populations in 25 countries in the EU (EC-­OECD, 2016). The EU-­LFS 2014 shows that the average employment rate of refugees in Europe was 56 per cent in 2014, which is 9 percentage points lower than the average employment rate of native populations (Figure 27.2). Education seems to play an important role for the employment of refugees in Europe, but representative data on the educational background of refugees is lacking, and strong differences considering educational backgrounds exist between refugees’ origin and destination countries (Konle-­Seidl and Bolits, 2016). Immigrants, including refugees, tend to have lower education levels than native populations in their host country, which may explain (part of ) their relatively low employment rates. Refugees, if employed, are more likely to be overqualified for their job: approximately 60 per cent of refugees with a tertiary education are overqualified, which is twice as high as for the native-­born population, and mostly related to the fact that foreign qualifications are not recognized (EC-­OECD, 2016). With an average employment rate of 45 per cent, refugee women have worse labour market outcomes than refugee men, which can be partly ascribed to their lower levels of education. Substantial differences exist in the employment rates of refugees across refugee-­hosting countries in the EU. Figure 27.3 shows that refugees have the highest employment rates in Slovenia, Switzerland, and Italy. These high figures are also related to the inclusion of refugees who were 353

Sonja Fransen and Kim Caarls Table 27.2  Employment-related integration support for humanitarian migrants in OECD countries, 2015 Job-related training

Vocational language training

On-the-job language training

Yes (if clients meet eligibility requirements) Yes

Yes (as part of SLPET* program) No

Yes

No

Yes No Yes (through job-related language training) No Yes

Yes No No

Yes No Yes No No (but may be provided by NGOs) Yes No

Yes No Yes No No

Netherlands

Yes (if clients meet eligibility requirements) Yes (mainstream measures available, targeted measures planned) Yes (but not specifically for humanitarian migrants) Yes No Yes (mainstream ALMP for clients of the labour office) Yes Yes (as part of regular labour market services) Yes No Yes Yes (but not systematic) No (but may be provided by NGOs) No Yes (but not for all humanitarian migrants) Yes (access to mainstream services) Yes

New Zealand Norway

Yes Yes

No (not systematic) Yes (but limited, not systematic)

Poland Portugal Slovenia Spain Sweden Switzerland

No Yes No Yes Yes Yes

No Yes No Yes Yes Yes

Turkey

Yes (provided in temporary No reception centers; outside these centers services may be provided by NGOs and local administrations) Yes (through DWP provisions for No (ESOL for work No job seekers) courses exist but are not state funded) Yes (but not for all humanitarian Yes (but not systematically migrants) available) Yes (but not for all humanitarian migrants)

Australia Austria Belgium Canada Chile Czech Republic Denmark Estonia Finland France Germany Greece Hungary Italy Japan Luxembourg

United Kingdom United States

No Depends on the situation

Yes No

No Yes (but not for all humanitarian migrants) No Provided by some employers Yes Yes (mainstream workplace training for basic skills) No n.a. No Yes Yes Yes (e.g. in construction, restaurant, cleaning and agriculture) Yes (for the employed with work permits only)

Notes n.a. = information not available. * SLPET = Settlement Language Pathways to Employment and Training. Adapted from: OECD, 2016.

354

80 71%

70 60

65% 56%

53%

Percentage

50 40 30 19%

20

17% 15% 10%

10 0 Refugees

Family reunification

Employment or study

Employment rate

Native born

Unemployment rate

Figure 27.2  L  abour market outcomes of refugees and other non-EU born migrants, 15–64 years old, in the EU Source: EC-OECD (2016). Based on EU LFS 2014 AHM data. Data cover 25 EU countries.

80 70 Percentage

60 50 40 30 20 10 0 SI*

CH

IT

SE

FR

AT

DE

Refugees

NO

EU

PT

HR*

UK

BE

FI

ES

Other non-EU-born

Figure 27.3  E  mployment rates of refugees and other non-EU born migrants, 15–64 years old, in the EU Source: EC-OECD (2016). Based on EU LFS 2014 AHM data. Data cover 25 EU countries. *Low reliability for data on refugees in Slovenia and Croatia. Country abbreviations: SI = Slovenia, CH = Switzerland, IT = Italy, SE = Sweden, FR = France, AT = Austria, DE = Germany, No = Norway, EU = European Union, PT = Portugal, HR = Croatia, UK = United Kingdom, BE = Belgium, FI = Finland, ES = Spain.

Sonja Fransen and Kim Caarls 2014 Employment

Percentage

100

Study

Family

Refugees

80 60 40 20 0

0 to 4

5 to 9

10 to 14

15 to 19

20+

Figure 27.4  Employment rate by reason for migration and years of residence in the EU, 15–64 years old Source: EC-OECD (2016). Based on LFS 2014 data. Data cover 25 EU countries.

born within the borders of the EU (EC-­OECD, 2016). Italy and Switzerland both score slightly favourable on the MIPEX index (see section ‘National labour market policies for refugees’). It is unclear if the differences in employment rates between these countries can be directly linked to their integration policies. Although refugees are more likely to be employed than other immigrants in some countries (e.g. Belgium, France, Italy, Slovenia and Croatia), refugees in most countries have lower employment rates than other non-­EU-born immigrant groups. The employment rates of refugees do increase significantly with the time spent in the host country (Figure 27.4), but employment rates remain on average lower than those of native populations. Only after 20 years of residence, refugees have on average similar employment rates as other immigrant groups and native-­born populations (EC-­OECD, 2016). The average duration of unemployment for refugees is also higher than those of other groups, suggesting that refugees have difficulties finding employment after becoming unemployed.

Factors determining refugees’ labour market integration Empirical evidence on the role of asylum and integration policies for economic integration of refugees is limited in the European context (Bilgili, 2015; Cangiano, 2014; UNHCR, 2013). Yet, there is a��������������������������������������������������������������������������������������� n increasing body of literature that investigates the factors that contribute to a successful labour market integration of refugees. Most studies have been conducted in Sweden, the Netherlands, Canada, the US, and Australia (Bevelander, 2016). These countries are among the classic immigration countries in which more data is available on this particular category of migrants. Overall, the findings show that a complex mix of factors determines the economic integration of refugees.

The role of asylum policies in labour market integration The asylum procedures of refugee-­receiving countries play an important role in future economic integration or labour market outcomes of refugees. Several studies, for example, have shown a negative association between the length of the asylum process and the labour market outcomes of refugees. In the Netherlands, prolonged asylum procedures negatively impacted refugees’ human and social capital (De Vroome and Van Tubergen, 2010). Longer stays in a reception centre corresponded to a greater chance of unemployment and lower job status. During their time in asylum centres, refugees were restricted in their ability to acquire host 356

Allowing refugees to work or not?

country language skills, work experience, education, and social networks. Similar findings from Switzerland showed that employment rates of refugees dropped by 16 to 23 per cent for each additional year of an asylum process (Hainmueller et al., 2016). This was attributed to psychological stress suffered during the asylum process, depression or disempowerment of refugees, the continuity of uncertainty, and the difficulty of finding a job after having been unemployed for a long time. Mental health effects have been studied in the field of psychology. Scholars have demonstrated that, across a wide variety of contexts, longer stays in asylum centres and prolonged procedures negatively affect mental health of asylum seekers (see e.g. Laban et al., 2004, for a study in the Netherlands; Silove et al., 2007, in Australia; Silove et al., 2005, for a literature review). These mental health problems of refugees, in turn, are related to worse labour market outcomes in the host country (see, e.g. Beiser and Hou, 2001, for a study on Canada). Other factors related to the asylum procedure are the housing policies or the type of accommodation provided during the asylum process. A comparative study of asylum housing in the Netherlands and the UK – the two countries with an exclusive, discouraging asylum procedure that seemingly aim for an inclusive integration for those permitted to stay – revealed important differences (Bakker et al., 2016). Asylum seekers in the Netherlands are placed in large-­scale accommodation centres, while asylum seekers in the UK are dispersed across the country. The Dutch system effectively segregates asylum seekers from the general population, and the lack of privacy and autonomy in these centres results in negative mental health effects (ibid.). In the UK, asylum seekers are often housed in deprived areas, and they often encounter a hostile environment, resulting in poorer physical health outcomes (Bakker et al., 2016; Philips, 2006; Stewart, 2012). These examples show how asylum policies and procedures that are implemented early on in the migratory process may have long-­term consequences for the economic integration of asylum seekers and refugees. Specifically, the acquisition of mental health problems, or the exacerbation of existing trauma due to factors associated with the asylum procedure, affect the economic integration of refugees in the long run. Several international organizations such as United Nations High Commissioner for Refugees (UNHCR), International Monetary Fund (IMF ) and World Bank are therefore calling for increasing rights for asylum seekers to work and for labour market restrictions to be reduced for asylum seekers residing in refugee-­hosting countries (see, e.g. IMF, 2016). Changes in the asylum policies and practices, including providing language training to asylum seekers, the shortening of asylum procedures and removing legal obstacles to work are likely to have long-­term benefits for refugees and the economies of refugee-­hosting countries (see, e.g. IMF, 2016; OECD, 2015).

Integration policies and refugees’ labour market outcomes There is widespread consensus that the integration policies that countries have implemented are of crucial importance for the long-­term economic integration of refugees. Literature on the impact of integration policies on the economic integration of refugees is scarce, but findings indeed suggest that integration policies have long-­term effects on labour market integration. Kancs and Lecca (2016), for example, used simulations to predict the long-­term economic impact of different refugee integration policy scenarios in Europe and found that, in the medium to long run, a comprehensive refugee integration policy that includes welfare benefits, language trainings, job trainings, etc., would balance the short-­term costs of the implementation of such policies. Other authors focused more on specific aspects of integration policies. Various studies mention the importance of language proficiency and the role of education and work-­related 357

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experiences in the host country (see, e.g. Beiser and Hou, 2001; Cheung and Phillimore, 2014; De Vroome and Van Tubergen, 2010). Host country language proficiency and experiences in the host country are often acquired through integration courses. De Vroome and Van Tubergen (2010) discuss the role of integration courses in the Netherlands, consisting mostly of language courses, labour market orientation courses, and information provision about Dutch society more generally, which had a positive effect on employment chances and job status. Beiser and Hou (2001) studied the labour market participation of Southeast Asian resettled refugees in Canada and found that resettled refugees, and particularly women, who spoke English as a result of the government’s English as a Second Language (ESL) course, had better labour market outcomes and higher incomes than those who had not participated in the language training. Likewise, Hämäläinen and Sarvimäki (2008) showed positive results from individualized integration programs in Finland on immigrants’ (including refugees) employment as well as less dependency on social welfare. These programs included sanctions for non-­compliance for immigrants, creating additional incentives for participation. However, Clausen et al. (2009) studied mandatory labour market programmes and language courses for refugees in Denmark, and they only found a significant effect of language training on the employment rate. Bloch (2007) showed low levels of labour market activity and high levels of overqualification among refugees in the UK. Policies in the UK typically focus on employability in terms of capacity-­building, yet the author suggests more attention should go to preventing discrimination, negative stereotyping in the media, and restrictive policies, which together present major barriers to labour market participation. Another important predictor of labour market integration of refugees is the settlement or housing policy of the host country (see, e.g. Hagstrom, 2009, for an overview). Local labour market conditions in the area of settlement, including the economic conditions of the area and the availability of low versus high skilled labour, for example, play a large role in whether or not refugees are able to integrate into the labour market. Hagstrom (2009), for example, conducted a study on the housing arrangements for resettled refugees in Sweden and concluded that the poor labour market outcomes of resettled refugees were most likely due to their settlement locations, which were relatively lower populated and offered fewer job or education opportunities. Another important facet related to settlement is the availability of networks for refugees. The dispersal of refugees, which is a policy tool to reduce clustering of refugees, might have negative effects for the refugees in terms of access to networks, which makes it more difficult to integrate economically (Bakker et al., 2016; Edin et al., 2004; Hagstrom, 2009). Comparing refugee housing and support in the Netherlands and the UK, Bakker et al. (2016) showed negative effects in terms of refugees’ health regarding the lack of state support in the UK. While asylum seekers receive state support in the Netherlands after they are granted a right to stay, including subsidized housing and integration courses, refugees in the UK have to leave their temporary residence within 28 days after their refugee status has been recognized, and they receive no state support at all. The Dutch integration system positively affected refugees’ health outcomes, while the UK system had a negative impact (although the situation in the Netherlands has become much more restrictive recently, likely negatively influencing integration outcomes) (Bakker et al., 2016). Another issue is related to the labour market conditions in the host country and the recognition of qualifications and diplomas that were obtained in the country of origin. Mestheneos and Ioannidi (2002), for example, conducted 143 interviews with refugees in 15 EU Member States and found that among the major obstacles for refugees to find jobs were the lack of recognition of diplomas, qualifications and previous job experiences obtained in other countries, discrimination of employers and lack of social networks. Likewise, Cheung and Phillimore (2014) found that, among other things, language competency and pre-­migration qualifications 358

Allowing refugees to work or not?

and occupations were among the most important factors explaining labour market outcomes for refugees in the UK. Overqualification is also a major issue among refugees (Bloch, 2007; Cangiano, 2014; Cheung and Phillimore, 2014; EC-­OECD, 2016; Mestheneos and Ioannidi, 2002). Most refugees have obtained their qualifications in different educational systems, or have difficulties providing the necessary evidence or documentation, which makes it harder to get their qualifications acknowledged. In addition to policies, individual characteristics of the refugees, including their age, gender, education, previous employment experiences, and marital status have an effect on their labour market integration (Bevelander, 2016). For example, higher educated refugees were found to have better labour market outcomes in Sweden (see, e.g. Bevelander and Pendakur, 2009). Mastery of the host country language is also an important predictor for employment of immigrant groups in general and refugees in particular (EC-­OECD, 2016). According to the OECD estimates, if refugees possessed the same level of language skills as the native population, their employment rates would increase by ten points, which is not the case for other migrant groups (ibid.).

Conclusion and discussion Increasing number of asylum applications in Europe have placed the issue of refugee integration high on the policy agenda. Yet, asylum and integration policies and their relation to the economic integration of asylum seekers and refugees remains a small research area in the vast literature on the study of integration and migration more generally. Most studies focused on labour migrants and have overlooked the particular challenges of economic integration faced by asylum seekers and refugees. This is for a large part due to the scarcity of data on refugees or asylum seekers. Furthermore, the focus in the academic literature has been on traditional immigrant-­ receiving countries such as the USA, Australia and Canada, with little attention for asylum seekers and refugees in the European context. More and better data therefore needs to be collected on asylum seekers and refugees in Europe and specifically in relation to the policies that are in place to support the labour market integration of refugees. While discussing the economic integration of asylum seekers and refugees, we mainly focused on (western) European countries, even though interesting comparisons were made with other regions. Generally, refugees generally hold disadvantaged economic positions in the labour market. While their labour market outcomes improve over time, their employment rates often remain below those of native-­born populations or other migrant groups. We demonstrated that significant differences exist in asylum and integration policies across European countries and elsewhere. Whereas some countries (e.g. Scandinavian countries) hold liberal attitudes towards asylum seekers and have extensive integration programmes in place, other countries (particularly in Eastern Europe) have only recently turned their attention towards labour market integration of refugees. Convergence of national integration policies is on the European agenda and several steps have been taken towards a common European asylum and integration system. However, national practices remain a competence of individual EU governments, which consequently leads to significant differences across the countries. The asylum and integration policies that national authorities have adopted play an important role, directly or indirectly, in the economic integration for refugees. Factors such as the length of the asylum procedure and the housing arrangements for asylum seekers are all important determinants of long-­term labour market outcomes. Likewise, practices derived from integration policies such as the availability of language courses, job search assistance, and settlement 359

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policies all have an effect on the labour market integration of refugees. However, even in countries with extensive and comprehensive integration policies, such as Sweden and Norway, refugees face challenges integrating into the labour market. Additionally, asylum procedures and integration policies also affect refugees’ mental and physical well-­being, which in turn affect their employability (Bakker et al., 2016; Dahlgren and Whitehead, 2015). These direct and indirect effects of asylum and integration policies highlight the importance of factors beyond these policies, such as individual characteristics and the structure of the labour market, for determining refugees’ labour market integration.

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28 The politics of care work and migration Franca van Hooren, Birgit Apitzsch and Clémence Ledoux

Introduction Across Europe, migrants are often employed as providers of care or domestic services. Especially for migrant women, domestic work is frequently the entry point into the labour market (ILO, 2013). While global data are difficult to aggregate, we know that in 2004, 36 per cent of all female migrant workers in Spain had found work as domestic/care workers and respectively 28 per cent and 21 per cent of all female migrant workers were hired by private households in Italy and France, respectively (ILO, 2013, p. 35). Meanwhile, of all care workers who started to work in residential and home-­based elderly care in the UK in 2007, an estimated 28 per cent was foreign born (Cangiano et al., 2009, p. 58). In a similar way, the provision of care services either in private homes or in care institutions relies heavily on migrant workers in many countries and regions. While migrant care work can be seen as a form of labour migration, it has several distinguishing characteristics that make it important to study the politics of migrant care work in its own right. First, as care providers, migrants directly enter the sphere of the welfare state. In some instances migrants form an alternative for public care provision, in other instances migrants supply publicly financed care. As such, migration directly filters into the politics of the welfare state. Second, the sector is a distinctly gendered segment of labour migration, not only because many of the migrants involved are women, but also because the politics of care is often strongly gendered. The latter appears for example in the lack of recognition of the skills needed to perform care work, or in an exemption of migrant care work from securitisation debates around immigration. Third, much of the work that is done by migrants takes place within the intimate sphere of the home, which makes it difficult to regulate and control the sector. This has not only led to a significant amount of undeclared work, but also to a niche of undocumented migrant labour even in countries where undocumented migration is generally limited. In this chapter, after presenting a short overview of migrant care work in Europe, we address recent research on the politics of migrant care work in relation to social care policy and to migration policy. Finally, we zoom in on contemporary research on political actors in the politics of migrant care work.

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Studying migrant care work in Europe We define care work broadly as including ‘the provision of daily social, psychological, emotional, and physical attention for people’ (Knijn and Kremer, 1997, p. 330). This excludes cure­oriented medical care, but included in our analysis is domestic work that, next to caring, consists of household services such as cooking or cleaning (Anderson, 2000). Following the predominant focus of existing research, this chapter deals mostly with elderly care and household services, and much less with childcare. A migrant worker is broadly understood as a worker who is foreign born. For centuries, people have resettled to engage in care and domestic work. People moved from rural to urban and from poorer to richer areas. For example, in France many women came from French Brittany to work as domestic servants in Paris and by 1900, only 8 per cent of the domestic workers working in Paris were born in the same city (Fugier, 1979, p.  25). With the more explicit construction of international borders at the end of the nineteenth century, the transformations of European national borders at the beginning of the twentieth century and the development of transportation techniques, many care workers became de facto international migrants. For example, Irish female migrants worked as domestic servants in Britain and in the United States in the nineteenth century and German migrants worked as domestic servants in the Netherlands in the 1920s and 1930s (Henkes and Oosterhof, 1985; Lutz, 2011). In Europe, the incidence of migrant care and domestic work reached a long-­term low in the decades after World War II. These ‘trente glorieuses’ of European welfare states were characterised by relatively low inequality and a dominant male breadwinner model. As a consequence, while relatively few households could afford to outsource domestic services due to low wage inequality, female housewives were expected to provide unpaid household and care services for children and dependent family members. With the gradual decline of the male breadwinner model from the 1970s onwards, the demand for domestic and care services increased again. Scholarly attention for the phenomenon of migrant care work was sparked at the end of the twentieth century, when scholars, primarily in the US and the UK, pointed at the emergence of a new international division of labour (Sassen, 2000) and of ‘global care chains’ in which women from the Global South left behind their own family members in order to care for a rich family in the Global North. At first, these scholars paid attention primarily to migrant domestic workers and the exploitation of these migrant women working for rich households (Anderson, 2000; Hondagneu-­Sotelo, 2001; Parreñas, 2001; Ehrenreich and Hochschild, 2002). Studying the micro-­politics of care work from a feminist and Marxist perspective, these scholars perceived care work as a means to permit the reproduction of the female employer’s status. It allowed upper- and middle-­class women in the Global North to adopt masculinised employment patterns without sharing domestic and care work responsibilities with their male partner (Anderson, 2000). Furthermore, care work was not only seen as a task but also as a role, affirming the social status of the household, able to employ a subordinate domestic worker (ibid., pp. 18–20). These scholars drew a parallel with the division of labour in Victorian times, underlining that domestic work is seen as dirty work and positioned at the lowest level of society (ibid.). Anderson argued that the idealisation of pure, pious, moral and virtuous white upper and middle-­class women needed contrasting stereotypes that racialised workers could be associated with. These studies also interconnected the micro-­level of women’s experiences with the macro-­level of international inequalities (Williams, 2012). However, European research (Lutz, 2011; Avril and Cartier, 2014) has also highlighted how the new ‘international division of reproductive labour’ (Parreñas, 2001) was different from that of one or two centuries ago. For example, contemporary migrant domestic workers are on 364

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average older, they come more often from the middle class in their country of origin, and they do not always live-­in with their employers (Lutz, 2011). Notwithstanding such changes, researchers point to continuity in the intersection of gender, ethnicity and class in ������������ what����� Marchetti (2014, p. 106) calls ‘postcolonial narratives of servitude’. Moreover, from the mid 2000s, European scholars also started to show that the care chain is not always global but can also be regional (e.g. within Europe, Williams, 2012) and that the dichotomy sending/receiving countries is not always relevant, as some countries like Poland have been both (ibid.). These scholars pay more attention to the way in which welfare states shape the demand for migrant domestic and care work (e.g. Bettio, Simonazzi and Villa, 2006). They show that many welfare states have not adequately responded to growing care needs in the context of women’s increasing labour market participation. Moreover, many countries have stimulated the privatisation of (formerly) publicly financed care services and the introduction of competition processes between care providers (Gingrich, 2011). In this context, migrant workers have begun to ‘fill the gaps’ between existing public services and families’ needs (van Hooren, 2012). Migrant care workers are overrepresented in ‘bad jobs’, characterised by insecurity and poor working conditions, such as low wages, heavy physical labour including lifting people and doing many night shifts, working part-­time or long hours, or sometimes living-­in with the employing household (van Hooren, 2012). Moreover, studies show an internal ‘hierarchy’ within the care sector, with migrants being overrepresented in the less desired care jobs and employment forms (e.g. Lutz and Palenga-­Möllenbeck, 2012; Avril and Cartier, 2014; Shire, Schnell and Noack, 2017). Nevertheless, the employment situation of domestic workers varies depending on the organisation of the sector in different welfare and migration regimes, as is explored in the following sections.

Transformations of care in Europe Statistics and definitions of care and domestic work differ between and within countries and definitions of care rights are sometimes vague, which makes it a daunting task to compare care regimes across Europe (Pavolini and Ranci, 2012). Nevertheless, different logics of care policy development can be identified. In reaction to the well-­known typology of ‘welfare regimes’ developed by Esping Andersen (1990), which was primarily based on the relationship between the state, the family and the market, numerous scholars have pointed out that this typology failed to take into account the exact role of the family, the position of women and the organisation of the care sector. Some authors proposed alternative typologies aiming at better understanding care regimes (Anttonen and Sipilä, 1996; Leitner, 2003), for example by opposing the Scandinavian countries, that aim to collectivise caring, to continental and Southern European countries that encourage different degrees of familialisation of care, where care provision is implicitly or explicitly left to the family. Meanwhile, major changes have taken place in the way in which public policies have organised and financed the care and domestic work sector across Europe since the 1990s. These changes include the privatisation of public care services, the introduction of cash for care schemes – where the care recipient receives public subsidies with which (s)he can purchase care services on the market –, and the development of a variety of tax breaks. Tax breaks can consist of tax incentives, deductions, exemptions, credits, or special rates dedicated to households or organisations buying or providing care or domestic services. These policy instruments have been created in order to fight undeclared work and to stimulate the development of a formal market for care and domestic services. However, new policy instruments can have a number of adverse 365

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c­ onsequences. For example, high-­income households profit from tax breaks much more than low income households, thereby reinforcing social inequalities (Carbonnier and Morel, 2015). Moreover, for privatised care services, cash for care schemes and tax breaks alike, public authorities have very limited control over how services are provided, over the quality of services and, importantly, over the quality of employment. What many of these reforms have in common is limited attention for job quality, whereas clients’ needs in combination with budgetary restraints have usually been at the centre of political attention. The fact that these different policy changes also have had detrimental consequences for the workers involved, negatively affecting mostly women and increasingly also migrants, has been either ignored or seen as ‘natural’. Exemplary for the latter are recent developments in the politics of domestic work in Germany (Shire, 2015) and the Netherlands (van Hooren, 2018), where domestic workers directly employed by households have been partly (Germany) or fully (Netherlands) excluded from the social and employment protection that covers other workers. In the Netherlands, directly employed part-­time working domestic and care workers are covered by a special employment regulation that exempts employers from having to pay taxes and social security contributions, thereby also exempting workers from the coverage of social security benefits, such as unemployment, disability or pensions benefits. The special employment regulation has existed for decades, but its coverage was extended to cover a larger group of workers in 2007. At the time, policy makers implicitly and sometimes even explicitly justified this exclusionary policy by pointing out that the women engaged in domestic work did not need social protection, because they could rely on the income of a (male) breadwinning partner (van Hooren, 2018). Similarly, Germany has encouraged low-­paid and poorly protected marginal part-­time work, i.e. part-­time work with very limited working hours (Shire, 2015). This ‘mini jobs’ scheme for work in private households was introduced in 1977 and was extended in the early 2000s to encourage its use in private households (e.g. lifting the maximum income and reducing social insurance contributions; ibid.). Meanwhile, since the policy allows only a maximum number of working hours, in practice many domestic workers may work additional hours informally, receiving only ‘envelope wages’ (Williams, 2009). In addition to special employment regulations for employment in private households, cash for care subsidies and tax breaks often also encourage irregular employment, such as ‘bogus self­employment’ constructions. This involves formally self-­employed who are in fact and illegally employed by one client but are not covered by social and employment protection. Across Europe, such constructions are often used to avoid labour regulations and social insurance contributions as well as migration restrictions (Apitzsch, 2018 forthcoming). One consequence of the series of privatising and marketising reforms with their deteriorating effects for employment conditions has been an increasing demand for migrant workers willing to accept poor working conditions, as we will discuss in the subsequent section.

The politics of migration and configurations of migrant care work Before illustrating the different European configurations of migrant care work in relation to different care regimes¸ it needs to be emphasised that national and European migration policies and legacies have also contributed to differences in the employment incidence and circumstances of migrant workers in domestic and care work. In many countries, the origin of migrant care workers depends on colonial legacies (Avril, 2014; Marchetti, 2014): while Eritreans are overrepresented in Italy, domestic workers from former French colonies and overseas territories are overrepresented in French big cities (Scrinzi, 2013; Avril, 2014) and migrants from Latin 366

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America are overrepresented in Spain. Meanwhile, within Europe, East–West migration has become increasingly relevant. Lutz showed that besides ‘pull factors’ in Western Europe, these feminised migrations from eastern Europe are also related with the transformation of welfare and educational systems in previously communist countries, with rising university costs or health debts encouraging mothers to leave their country of origin and find work in the care sectors of Western Europe (Lutz, 2011). Most studies, however, focus on the situation in countries of destination. Central to understanding migrant care work in Europe is the history and stratified system of entry routes and citizenship. Migrants who have obtained citizenship in their country of destination tend to be in the best position to secure decent working conditions and adequate social protection. Meanwhile, migrant workers from new European Union (EU) member states frequently find themselves in bad jobs and/or irregular employment, but their situation is still often better than that of non-­EU citizens who are restricted by a temporary work permit or who do not have a legal residence permit and therefore find themselves in an extremely vulnerable situation (Gottschall and Schwarzkopf, 2011). Hereafter we illustrate some of the consequences of the intersection of different care and migration regimes across Europe. First, in the more ‘familialistic’ care regimes in Southern Europe and, to some extent, Germany and Austria, a ‘migrant in the family’ model of elderly care has emerged. In the absence of appropriate public care provisions, in Italy and Spain, families increasingly engaged cheap migrant workers from for example Ukraine, Romania, the Philippines or South America to look after their older family members (Bettio, Simonazzi and Villa, 2006; Savioli, 2007; Léon, 2010; van Hooren, 2011, p. 51). These migrant care workers, called ‘badante’ in Italy, often live-­in with the elderly person for whom they provide continuous care. The ‘migrant in the family’ model of care has been facilitated by work permits and immigrant regularisations which have provided some opportunities for non-­EU nationals to obtain a legal status as privately employed care worker. Moreover, care work is an easy way for migrants to enter the labour market, while migrants have also been pushed into care by for example employment intermediaries which consider care work as a ‘natural’ job for migrant women (Scrinzi, 2013). Italy has been one of the few states that has also explicitly recognised its dependence on migrant care workers (van Hooren, 2011). Strikingly, regularisations and work permit quotas specifically targeting migrant domestic and care workers were enacted in a period in which public sentiments towards immigration became increasingly negative. Starting in the 1990s, in media coverage and public debates migration became associated with criminality (Sciortino and Colombo, 2004, p. 109). Political parties such as the Lega Nord and the formerly fascist Alleanza Nazionale campaigned forcefully against further immigration. Yet politicians from these same political parties enacted very generous special provisions for domestic and care workers. These measures were deemed acceptable, because they concerned migrants, ‘the majority of whom are women, who carry out activities of high social importance for families’ (Lega Nord politician cited in Einaudi, 2007, p. 317). The mostly female, often Catholic migrant care workers were exempted from security concerns. Moreover, due to the strong focus on families in the ‘familialistic’ Italian welfare regime, the needs of families were prioritised by political parties from across the political spectrum. These trumped anti-­immigrant sentiments and legitimised expansive migration policies (van Hooren, 2011). Meanwhile, even in Italy regularisations and work permits never catered for the full demand for migrant care workers. Moreover, many migrants’ applications were turned down due to formalities. Consequentially, probably hundreds of thousands Italian families have continued to employ undocumented migrants to provide for their care needs. The state has largely tolerated these informal practices. 367

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���������������������������������������������������������������������������������������������� In Germany and Austria, a fairly familialistic care regime has been supported by direct financial provisions for families. In Austria, a relatively generous ‘cash for care’ scheme has stimulated the employment of migrants from nearby Eastern European countries, such as Slovakia and Romania, in so-­called 24-hour care (Österle and Hammer, 2007). Similarly, in Germany, supported by a cash allowance included in the German long-­term care insurance, migrants from the Eastern European countries that joined the EU in 2004, primarily from Poland, have been engaged as live-­in elderly carers (Lutz and Palenga-­Möllenbeck, 2012). Specific work permits already aimed to attract Polish workers to fill the gaps in private care before the 2004 EU enlargement, albeit with limited success (Karakayali, 2010; Gottschall and Schwarzkopf, 2011; Lutz and Palenga-­Möllenbeck, 2012). After EU enlargement in 2004 and 2007, both Austria and Germany developed transitory measures. While labour migration from the new EU member states was generally restricted, these measures specifically allowed some citizens from the new EU member states to work in private care. These transitory measures had a lasting impact on the labour market integration of migrant workers into non-­standard and informal care work (Karakayali, 2010; Gottschall and Schwarzkopf, 2011; Lutz and Palenga-­Möllenbeck, 2012). Due to the relative spatial proximity between countries of origin (e.g. Poland, Slovakia, Romania) and countries of destination (Germany and Austria) a specific circular form of migrant care work emerged. Migrants work abroad for a few weeks at a time, after which they spend a few weeks at home before working abroad again for another short period (Lutz and Palenga-­ Möllenbeck, 2012). Meanwhile, in Poland, female migrants from Ukraine and Belarus have been recruited into informal care work because they are less expensive than nationals, who in turn go to work in the care sector of Western European countries like Germany and the UK (ibid.). Compared to the former countries, France has enacted stronger incentives to formally employ and declare care workers (through tax breaks, a direct elderly care allowance, and a voucher system), which have sustained the development of a more formally regulated sector. Direct employment by the households still dominates the formal sector (57 per cent of the declared work hours realised in 2015, Thiérus, 2017) but is diminishing. Parallel to this, non-­profit organisations providing home-­based care increasingly compete with for-­profit firms (ibid.). Meanwhile, various immigration statuses give the possibility to non-­EU citizens to work legally in the French care sector and the ‘sans papiers’ (undocumented) workers benefited from several episodes of regularisations that were not targeted only to domestic workers but attained some of them (Chauvin, Garces-­Mascareñas and Kraler, 2013). In Northern Europe, including Scandinavian countries, the Netherlands and to some extent the UK, the ‘migrant in the family’ type of care has been less common (Da Roit and Weicht, 2013). Fairly generous public care provision largely crowds out the demand for private (migrant) care workers, while fairly decent working conditions in the public sector pre-­empt a strong demand for migrant workers. Meanwhile, migrants are more often employed by privatised care providing agencies in the elderly and disability care sectors, especially in bigger cities (Jönson and Giertz, 2013). Especially in the UK, many migrants from Eastern European EU member states as well as non-­EU migrants such as Filipinos work in privatised long-­term care services. In addition, in Northern European countries undocumented migrants from outside the EU are frequently employed as domestic workers, where they clean houses for a few hours per week for a large number of different households. Due to strong controls on the employment of undocumented immigrants in other sectors of the labour market, domestic work for a private household is often the only type of work these migrants can engage in relatively safely (van der Leun and Kloosterman, 2006). The dependence on private undeclared employment within a household puts these undocumented migrants in an extremely precarious position (e.g. Anderson, 2000; Botman, 2010; Gottschall and Schwarzkopf, 2011; Lutz, 2011; Shinozaki, 2015). 368

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Meanwhile, in these Northern European countries, work permits that allow non-­EU nationals to legally engage in care or domestic work are hardly ever granted and regularisations are near absent. Migrants can only obtain a legal permit through family migration (Cangiano, 2014, p. 141) and sometimes through Au-­Pair-Schemes, or as employees of diplomats (Gottschall and Schwarzkopf, 2011; Kartusch, 2011), but many non-­EU migrants remain undocumented for years or decades. van Hooren found that in both the Netherlands and the UK, the political rationale for not granting work permits to care and domestic workers was that such work is not sufficiently ‘skilled’ to qualify for skill-­based work permits. For example, in 2007 the UK put ‘senior care worker’ permit applications, the only work permit available for care workers, on hold, because it was believed that this work was not ‘genuinely skilled’ (van Hooren, 2011). Care skills – as other skills that are seen as ‘feminine’ – are attributed low value or not even recognised as skills. As a trade union representative in the UK explained ironically: ‘after all it’s women’s work, so you know, anybody can do it, can’t they?’ (Interview cited in van Hooren, 2011). As long as there are unemployed women within the receiving country or in other EU countries, the rationale goes, these can fill vacancies in the domestic and care sector.

Political actors in the politics of care work and migration Recently, European scholars have started to pay attention to the role of various political actors in the politics of (migrant) care work. They have begun to assess which actors are mobilising on behalf of (migrant) care workers and how these interact with other actors in the field. At the supra- and transnational level, there is for instance the European Commission’s effort to encourage the development of domestic work as a way to diminish unemployment through EU recommendations (Morel, 2015), and the ILO with Convention 189 advocating decent work for domestic workers. At the national level researchers have started to analyse the political debates and coalitions behind reforms in country specific case studies (e.g. Shire, 2015 on Austria and Germany; Guiraudon and Ledoux, 2015 on France; van Hooren, 2018 on the Netherlands). Particularly interesting, but with research only starting to address it, is the role of various interest groups in the politics of (migrant) care work. These include not only trade unions but also firms and employers’ associations, as well as a variety of actors which are usually not considered in research on the negotiation of working conditions, such as non-­governmental organisations (NGOs), that is, non-­membership-based organisations, religious organisations, social movements as representatives of caregivers and their families, professional associations, networks, brokers, associations specialised in the defence of migrants and undocumented migrants and public welfare organisations. With their privileged access to the political decision making process, trade unions can potentially be an important political ally for migrant care workers. However, European trade unions have generally neglected care workers for most of the twentieth century. This applies especially to those working in the private home, as they belonged to the private sphere, were female and often migrants worked in non-­standard forms of employment such as self-­employment or (marginal) part-­time work (on these representation gaps, e.g. Ebbinghaus, 2006). In the US, this trend was reversed much earlier than in Europe. At the end of the twentieth century, US unions ‘discovered’ migrant and female workers as a promising new membership base (Milkman, 2006) and among the US unions’ biggest recent successes have been the ‘justice for janitors’ campaign, and massive alliances with unions or unionisation of home-­based care workers in some states (England, 2017). While European unions have been slower to follow, a new trend seems to emerge. For example, in France – where, exceptionally, trade unions have been active in the negotiations of 369

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collective agreements for care workers already for 60 years –, unions recently also became involved in court litigations, collective mobilisations and campaigns for regularisation of undocumented workers. At the Confédération Française Démocratique du Travail (CFDT, one of the major trade union confederations), a formerly undocumented Filipino domestic worker was elected as sector representative for the Paris Region, which attracted more undocumented domestic workers (Barron et al., 2011, pp. 124–127). Street-­level trade unionists began to launch campaigns to organise care workers, even in rural areas (Beroud, 2013) and in some rare instances care and domestic workers’ strikes and manifestations were supported by trade unions (e.g. in the département du Lot in 2012 and in Paris in June 2017). In the Netherlands, home-­based care workers as well as undocumented migrant domestic workers engaged in (separate) manifestations organised by major trade unions (van Hooren, 2018). In Spain and Italy trade unions have been at the forefront in advocating regularisations and improved workers’ rights for migrant care workers (van Hooren, 2011; Hellgren, 2015, p. 230). In Germany, trade unions have set up a collective agreement defining working conditions for employees in domestic work, and have cooperated with NGOs, religious organisations and social movements in enforcing workers’ rights in individual cases, in implementing the International Labour Organisation (ILO) convention 189 (Senghaas-­Knobloch, 2012) and in offering advice on workers’ and migrants’ rights in care and domestic services (Pries and Shinozaki, 2015; Shinozaki, 2015). These attempts were partly spurred by the growing attention to human rights violations such as forced work and trafficking and contributed to the implementation of rights by litigation or raising legal awareness (Kartusch, 2011; Schwenken, 2013; Cyrus and Kip, 2015; Shinozaki, 2015). On the employers’ side, the marketisation of care services has contributed to a diversification of employers in the sector. These range from private households, intermediary agencies and non-­profit care providers to for-­profit firms and public sector employment, while insurance companies and consumers’ organisations can also be involved (Blank, 2008). These diverse employment constellations are important because they affect the organising capacities of workers, and intervene in the negotiation of working conditions (Apitzsch, Ruiner and Wilkesmann, 2016). Moreover, employers and their organisations have become important political actors in the politics of care. It is only recently that the role of employers in the politics of domestic and care services is being investigated ����������������������������������������������������� (Guiraudon and Ledoux, 2015; Triandafyllidou and Marchetti, 2015)����������������������������������������������������������������������������������� . Meanwhile, national specialists of employers’ organisations have not yet investigated the domain of domestic and care work. There surely is large cross-­national and cross-­sectoral variation in the extent to and the way in which employers of domestic and care workers are organised, including for example a federation representing household employers in France, new employer’s organisations for for-­profit organisation in Germany and France, and strong care providers’ organisations in the Netherlands. How these various organisations have participated in the construction or contestation of workers’ rights, and how they define and act upon their own interests remains an open question, which should be addressed by studying employers’ and workers’ mobilisations jointly and in interaction.

Conclusion Within the last two decades, migrant care work has received increasing attention in scholarly as well as in political debates. Starting from considerations of global economic and gender inequalities, the focus was on migration between the Global North and South, and on risks of exploitation in countries of destination. With the increasing debates about global care chains in Europe, more attention has been paid to the intersections of welfare and care, gender and migration 370

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regimes, and to temporary migration that is related to spatial proximity and specific migration regulations of Eastern and Western European countries. Recent transformations of care across Europe, which aimed to make care and household services more easily available for private households, left considerable gaps in regulating and protecting employment. This, in turn, led to a surge in demand for migrant workers in the care sector. Further research is needed to explore how cross-­country differences in the intersection of care regimes, gender regimes and migration regimes differently affect the working conditions of migrant domestic and care workers. Considering the current predominance of qualitative national or local case studies, more systematic comparative research would be particularly valuable, as well as research that deals with the impact of transnational politics on workers’ rights. Meanwhile, little attention has been paid to politics and political actors targeting care work and migration. The few existing studies, however, hint at particularly interesting dynamics. The attempts of trade unions, while just starting to develop in most European countries, bear the potential to overcome traditional representation gaps regarding non-­standard employment, the female workforce, the service sectors and migrant workers. In addition, actors usually neglected in labour market research, such as NGOs supporting migrants, social movements and religious organisations, engage in political action targeting working conditions of migrant domestic and care workers. Particularly lacking for our understanding of migrant care workers’ political agency is, first, comparative research on the mobilisation of trade unions across Europe on behalf of migrant care and domestic workers whether or not in cooperation with other organisations and movements. Second, very little is known about the employers’ side, and on how the complex and varying arrangements of employment, including service firms, third sector organisations, private households and staffing agencies, relate to employers’ mobilisation. Third, the interaction of employers’ and workers association deserves more attention. This chapter also yielded insights into the geographical blind spots of existing studies. This relates in particularly to Central and Eastern European countries, which are mostly studied as countries of origin, but which have also developed into countries of destination or transit of migrant domestic and care workers. Finally, migration dynamics from, within and across different countries of origin and destination need further investigation.

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29 Migration and the Welfare state Igor Jakubiak and Paweł Kaczmarczyk

Introduction The share of international migrants worldwide has remained relatively stable over the last decades. However, their absolute number has soared, and the global picture of immigration has changed since the 1960s (UNDP, 2009). The majority of international migrants today target well-­developed economies with long immigration traditions, such as Australia, Canada or the United States, as well as selected European countries. With the increasing number of migrants present in these societies, immigration has become one of the pivotal subjects discussed in both academic and public debate. One topic, which has often surfaced in recent years, is the relationship between welfare and migration. Immigrants in developed economies are regularly presented and perceived as a threat not only to the stability of the labour market or cultural unity, but also to the sustainability of the welfare state. Immigration is said to burden the state and local budgets of host countries and to negatively affect the public services enjoyed by natives. The fiscal effects of migration were one of the main reasons that some of the governments (e.g. United Kingdom, Australia) decided to curb the inflow of immigrants into their countries or limit newcomers’ access to social benefits. There are three main reasons for the increased interest in this subject: large and growing immigrant populations in modern immigrant states; the increased strain on government spending induced by population aging; and the strain on public finances, caused by the global financial crisis of 2008 (OECD, 2013). The stereotype of the adverse impacts of immigration on the welfare state can be broken down into two components (Kaczmarczyk and Rapaport, 2014). The first one is purely economic and relates to the alleged negative fiscal position of immigrants. The second has a socio-­ political character, and relates to social trust and solidarity, which is allegedly undermined by the presence of ‘aliens’ in a redistributive or insurance system. This in turn translates into negative attitudes among citizens and weakens the political foundations of the welfare state. However, recent research shows that both concepts should be dismissed in the European context. In nearly all European states, immigrants make a positive net contribution to welfare systems, and the ‘group loyalty’ effect, described on the basis of racial diversity in the United States, does not occur in the case of Europe (Alesina, Harnoss and Rapoport, 2016). This chapter begins by providing a theoretical background of welfare migration research. Next, empirical research in the European context is presented, followed by final conclusions and challenges for future studies. 374

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Theoretical considerations Nannestad (2007) proposed a typology of approaches to migration and welfare systems, in which he distinguished four main areas of interest: (1) the welfare system as a pull factor (i.e. welfare magnet hypothesis); (2) the impact of the welfare system on immigrant behaviour at the destination (i.e. the set of incentives and disincentives for integration); (3) the impact of the immigration on the current welfare system at destination (i.e. fiscal effects); and (4) the impact of the immigration on future welfare arrangements (i.e. political economics of migration). In the case of the first issue, there is a general consensus that the presence of redistributive policies will explicitly or implicitly induce adverse selection mechanisms in migration patterns. It is expected that potential net beneficiaries will be attracted to the more generous systems and that potential net contributors will be discouraged by the high taxes necessary to support them (Musgrave, 1969; Chiswick, 1988; Wildasin, 1994; Borjas, 1999; Brücker et al., 2002; Hassler et al., 2002; Cohen, Razin and Sadka, 2009; Razin, Sadka and Suwankiri, 2011). The second issue deals with moral hazard – which is present in any redistributive system – but from the immigrant perspective. For a variety of reasons, it is preferable for migrants to integrate into the host country society. The main incentive for such integration, which is not without cost on the immigrant side, is labour market absorption. However, the presence of welfare benefits can undermine this incentive and lead to segregation (Okun, 1975; Putnam, 2000). A large portion of literature, devoted to welfare and migration, concentrates on the welfare and fiscal effects of migration. Unfortunately, it offers no unequivocal answer to the question of the impact of migration on welfare, which is understood as either the well-­being of non-­migrants in the host society or the public expenses of the destination country. In the first case, the set of assumptions, which can often be described as conservative, strongly affects the results, suggesting that they should be treated with caution (Djajic, 1998, 2009; Fuest and Thum, 1999; Michael and Hatzipanayotou, 2001; Michael, 2003, 2011; Djajic and Michael, 2009). In the second case, the main differences appear between static analyses, which concentrate on calculating current budgetary contributions and expenses related to immigration, and dynamic approaches, which aim to assess the long-­term impact of inflows on the host economy (Wildasin, 1994; Wellisch ��������������������������������������������� and Wildasin, 1996, 1998; Storesletten, 2000; Chand and Paldam, 2004; Coleman and Rowthorn, 2004; Boeri, 2010; OECD, 2013). The last area of research concentrates on the effect of immigration on the formation of migration and redistributive policies. Theoretical frameworks suggest a strong impact of migration on the support of the welfare state. However, the empirical research in the European context does not confirm those conclusions (Benhabib, 1996; Dolmas and Huffman, 2004; Ortega, 2004; Sand and Razin, 2007; Razin, Sadka and Suwankiri, 2011).

Empirical evidence Before moving to the empirical evidence behind each of the hypotheses described in the previous section, it must be noted that research of the relationship between welfare and migration is characterised by a number of challenges. First, there is no simple definition of welfare or the welfare state, which historically has been operationalised as anything from the entire public expenditure to the unemployment benefits level. Second, welfare arrangements differ between countries, which makes any comparisons and quantifications difficult. This has caused many authors to propose a typology of welfare states, rather than a measure of their generosity, starting with the seminal work by Esping-­Andersen (1990). Third, the size of the welfare state is strongly connected with the level of wealth or development of the country. This means that any 375

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measures of welfare generosity are usually correlated with the average wage, per capita Gross Domestic Product (GDP) or any other index used to describe the relative attractiveness of the destination labour market for potential migrants. This makes it difficult to disentangle the individual effect of welfare generosity on location decision. Moreover, the assessment of the effect that immigration has on the destination country’s economy requires a number of very strong assumptions regarding the immigrant labour market performance and demographics such as the level of welfare dependency, unemployment, fertility and average age. Last, it is difficult to obtain a representative sample of immigrants, and their presence in large surveys, such as Statistics on Income and Living Conditions (SILC) or Labour Force Surveys (LFS), has for many years been insufficient for general conclusions (leaving aside the issue of unsatisfactory sets of variables that are available from those sources). In the empirical research on the impact of welfare arrangements on immigrant behaviour, two distinct approaches can be distinguished. The first is based on measuring the impact of welfare arrangements on location decisions. Methodologies range from ordinary least squares (OLS) through experimental approaches to conditional logistic regression, and use either aggregated or disaggregated data on migration flows. This approach is more prevalent in the US. The second approach concentrates on differences between welfare dependencies of natives and immigrants in the host countries and is more often used in the European context. ��������� A comprehensive work by Brücker et al. (2002) provides estimations of the ‘immigrant effect’ on welfare use (unemployment benefits) in various European countries. Authors obtain significant results in the case of Denmark, the Netherlands, France, Austria and Finland and no such effects for Germany, the United Kingdom, Greece or Spain. Hansen and Lofstrom (2003) present a comparison of welfare use among immigrants and natives in Sweden and conclude that participation among the former is relatively higher, even after controlling for observable characteristics. They also find that this difference decreases with time spent in-­country, which suggests an assimilation out of and not into welfare, although at a rate insufficient for long-­term convergence. For Germany, a number of studies (Castronova et al., 2001; Riphahn, 2004; Riphahn, Sander and Wunder, 2010) show that the higher welfare take-­up rate among immigrants (Frick, Smeeding and Wagner, 1999; Riphahn, 1999) is mostly due to their higher eligibility rate, or in other words – observable characteristics, mainly: lower education, lower household head age, and higher number of children. Moreover, immigrants in Germany were found not to be more likely to claim benefits they are eligible for (Bird et al., 1999) and to assimilate out of welfare over time (Fertig and Schmidt, 2001). In the case of Denmark, Nannestad (2004) shows that immigrants from non-­Western countries remain net beneficiaries of the welfare state even after ten years of residence. Blume and Verner (2007) analyse the process of immigrant assimilation and observe a decline in usage of welfare over time, although the convergence is not complete in the case of women and men from less-­developed countries. An empirical assessment of migrant fiscal position and welfare dependency, presented in Boeri (2010), suggests that migrants are overrepresented among recipients of non-­contributory transfers. A Europe-­wide assessment by Barrett and Maître (2013) suggests that there is little evidence that immigrants are more likely to receive welfare payments. Similar conclusions were presented by the OECD (2013) study of the fiscal effects of immigration. It also suggests that three basic characteristics: age, education and labour market status, can explain a large proportion of net fiscal position differences between immigrants and natives. Moreover, it should be noted that immigrants’ excess use of welfare arrangements does not constitute a proof of welfare magnetism, i.e. that immigrants’ choice to migrate and their residential decisions are affected by welfare generosity (Giulietti and Wahba, 2012). Barrett and Maître (2013) provide several alternative explanations of residual dependency, based on Brücker et al. (2002), such as self-­selection, discrimination and network effects. 376

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An example of research on the impact of welfare arrangements on the geographical distribution of immigrants is Péridy (2006), who estimates a linear regression model of immigration into the Euoropean Union (EU) from 67 source countries and concludes that higher public spending in destination countries correlates with higher migration flows. De Giorgi and Pellizzari (2009) use conditional logistic regression to estimate the effect of welfare generosity on immigration decisions. Estimations based on the data from the European Community Household Panel (ECHP) show that welfare arrangements can act as a magnet across the countries of the EU. It is important to note that in both Brücker et al. (2002) and De Giorgi and Pellizzari (2009) immigrants are defined as non-­EU citizens. A more recent work by Giulietti et al. (2013), in which authors control for potential endogeneity between welfare generosity and migration flows, finds no evidence of the welfare magnet in the case of migration within the EU and little evidence in the case of non-­EU immigrants. The research of the fiscal effects of migration concentrates on the computation of the net fiscal position of migrants, as suggested by Wellisch and Wildasin (1996). There are two distinct strands of literature. In the static, or cash flow, approach, analysis refers to a given year (tax year) and compares the contribution of immigrants to the public treasure – in the form of direct and indirect taxes, although in practice, most studies are limited to the first case – with the value of benefits and services received. Its main advantages are simplicity and a lack of strong assumptions. Calculations are generally based on historical data. However, it lacks the forward-­looking perspective and is not useful for predicting long-­term consequences of migration, especially in terms of population aging. Such studies are usually limited to one country. In the case of the UK (Gott and Johnston, 2002; Sriskandarajah, Cooley and Reed, 2005; Rowthorn, 2008), the results suggest that the effect of immigration is small, around 0.2 per cent of GDP, and positive. They also show a strong impact of the business cycle on the immigrant net fiscal position, which can be tied to the large volatility of immigrant employment in changing economic conditions. Studies conducted in Denmark (Wadensjö, 2000, 2007; Nannestad, 2004) show that the fiscal impact of migration differs with the origin of the immigrants. Generally, the effects are positive for the Western migrants, while non-­ Western ones are found to be net beneficiaries of the state. A study conducted in Sweden (Ekberg, 1999) showed a large, negative fiscal impact of immigration. However, the reference period coincided with economic recession, which could explain part of this outcome. In summary, results of the static approaches suggest that the fiscal effect of migration, even in the net immigration countries, is small compared to the state’s GDP and in many cases positive, although the effect is subject to fluctuations resulting from the business cycle. The dynamic approach addresses one of the shortcomings of the static approach by providing a long-­term perspective. One of the methods, used to this effect, is based on the idea of expanding the static accounting exercise over time by calculating the net present value of both contributions paid and benefits received by the immigrants (and sometimes their offspring) over their lifetimes. In the case of Germany (Bonin, Raffelhüschen and Walliser, 2000), results suggest that there is a positive long-­term effect of immigration on the welfare state, mostly due to the favourable age structure of the immigrants, and that those benefits could be increased by introducing a targeted immigration policy. However, in case of Sweden (Ekberg, 2011) and the Netherlands (Rodenburg, Euwals and ter Rele, 2003), the fiscal impact of immigration is negative, mostly due to unfavourable characteristics of newcomers. The above results do not account for return migration, which – due to the lack of transferability of some social benefits – can decrease the costs of immigration. Kirdar (2010) shows that correcting for this can further increase the positive fiscal impact of immigration in Germany. Another method focuses on intertemporal distribution of public debt, by means of Generational Accounting. It is assumed that every deficit ultimately needs to be paid by the residents of the country, and that the future 377

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burden is calculated as the difference between the Net Present Value (NPV) of projected government expenditure and the NPV of the tax payments of all living generations. This type of analysis usually requires very strong assumptions regarding the characteristics and behaviour of migrant households, both present and future, for example with regard to fertility rates, life expectancies, return migration rates, productivity rates, labour market participation rates, or regularity rates. Similar assumptions regarding natives and the government are necessary. In the European context, studies usually report the required tax increases for future or present generations. In the case of Germany, Bonin, Raffelhüschen and Walliser (2000) find that an additional 200,000 migrants reduce the NPV of taxes imposed on the native-­born by US$68,000 per capita. Similar results are obtained for Spain (Collado, Iturbe-­Ormaetxe and Valera, 2004) and Austria (Mayr, 2005). In France (Chojnicki et al., 2010), the calculated life-­cycle contribution of an immigrant is positive, mostly due to the age distribution. Most Generational Accounting studies find a positive impact of immigration, due to the distribution of debt on a larger resident population. However, the overall impact of immigration on public finances is small. Computable General Equilibrium (CGE) models constitute the last group of methods typical for the dynamic approach. Fiscal effects are often a by-­product of calculations of how an entire economy will react to the changing conditions such as immigration influx. In the case of Sweden, Storesletten (2003) finds a negative NPV of US$20,500 resulting from the admission of an additional typical immigrant household. He suggests that low labour market integration of immigrants’ offspring is the main cause of this effect. Monso (2008) replicates this study for the case of France and arrives at the value of US$9,500. To summarise, the results of dynamic calculations vary, depending on the methods and assumptions. Generally, the impact of immigration remains small compared to the GDP. Moreover, the final effect is strongly dependent on the composition of the migration flow in terms of skill and age structure. The political economics of migration policies remains a domain of mainly theoretical considerations. Empirical evidence can be found in Gaston and Rajaguru (2013), who test the impact of immigration on redistributive policies in 25 OECD countries between 1980 and 2008. Contrary to the findings from theoretical models, they conclude that an increase in immigration leads to higher social spending. More examples, which refer to the case of the US, can be found in Simon (1998) and DeVoretz (2006). In summary, an empirical assessment of the relationship between migration and welfare concentrates on four main areas of interest. The question of how social benefits affect migration decisions is analysed mainly in the context of welfare magnets, and empirical evidence provides mixed results. The analysis of immigrant welfare dependency gives a more unequivocal answer – that immigrants generally do not depend on the welfare provisions to a greater extent than natives, after controlling for their characteristics. Although the methods of measuring the impact of immigration on welfare and the welfare state in the host society vary considerably, there is a common conclusion that this effect is small relative to the GDP, and can be positive. In the field of political economics of migration studies related to the US context, racial heterogeneity is documented as being responsible for lower support of redistributive policies. Against this background, empirical evidence related to European countries is still very limited and often in opposition to theoretical considerations. More specifically, recent studies show that the negative impact of immigration on redistributive policies in Europe is much lower in magnitude than in the US, or even negligible. This is due to both the ‘skill composition’ effect related to the inflow of well-­skilled immigrants (very present in the media coverage of immigration to the EU) as well as to the ‘labour market’ effect resulting from the fact that a large portion of immigrants are perceived as being complementary to the natives in labour market terms (Alesina, Harnoss and Rapoport, 2016; Kaczmarczyk and Rapoport, 2014). 378

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Lessons and challenges The review of theoretical and empirical studies presented in this chapter perfectly points to two opposite strands in the general approach to migration and welfare. On the one hand, proponents of a relatively liberal approach to mobility would argue that migration can be a critical factor of the survival of welfare systems in the long run and can be at least a partial remedy for recent fiscal issues. On the other hand, immigrants are treated as outsiders breaking the very logic of exclusionary welfare systems and are commonly blamed for burdening the budgets of receiving countries and negatively affecting the socio-­economic situation of natives. In fact, as shown above, most empirical studies indicate that immigrants use social benefits more than natives. This difference, however, is not necessarily attributable to the fact of being a migrant but rather to the generally less favourable structural characteristics of migrants, particularly their labour market status. Additionally, the fiscal position of immigrants is strongly system dependent, i.e. the problem often lies not in immigration itself but rather in the construction of the welfare system. The general conclusion is that the net fiscal impacts of immigration are small (usually below 1 per cent of GDP) and can hardly impact the well-­being of natives. The above-­presented review reveals a few key challenges. First, from the methodological point of view it is critically important to consider both the short-­term (static) effect of immigration and immigrants’ participation in contemporary welfare regimes as well as its long-­term impacts on the sustainability of welfare states. Available empirical studies, particularly within the dynamic approach, clearly suggest that an inflow of immigrants can present a serious remedy for well-­known deficiencies of aging economies. Second, political responses to the presence of immigrants in receiving societies and immigrants’ inclusion into welfare systems remains an open question. Even if empirical studies for Europe show that we should not expect such negative impacts of immigration on the support of redistributive policies as identified in the US context, the intensity and scope of public debates on migration and welfare would suggest the opposite. Third, the relationship between immigration and welfare seems to influence public attitudes towards immigrants. And those attitudes are primarily driven by myth and stereotypes created and supported by the media and not by scientific evidence. Against this background this chapter reveals a number of politically relevant issues. We would argue that many – if not all – European countries will need more immigrants to sustain their welfare systems. In order to secure positive impacts on the welfare they will need to implement more selective immigration policies but also critically assess other public policies. As labour market absorption remains one of the key factors shaping immigrants’ net fiscal contributions, it is critically important to improve the labour market integration of migrants and to work on the efficiency of welfare policies, which often tend to put immigrants in the ‘poverty trap’ rather than assimilating them out of welfare.

Acknowledgments This work was supported by the National Science Centre grant no 2014/14/Z/HS4/00006).

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Migration and the welfare state Giulietti, C., Guzi, M., Kahanec, M. and Zimmermann, K. F. (2013), ‘Unemployment benefits and immigration: Evidence from the EU’, International Journal of Manpower Vol. 34, No. 1, pp. 24–38. Giulietti, C. and Wahba, J. (2012), ‘Welfare migration’, IZA Discussion Paper No. 6450, Institute for the Study of Labor. Gott, C. and Johnston, K. (2002), The Migrant Population in the UK: Fiscal Effects, Home Office, London. Hansen, J. and Lofstrom, M. (2009), ‘The dynamics of immigrant welfare and labor market behavior’, Journal of Population Economics Vol. 22, No. 4, pp. 941–970. Hassler, J., Rodriguez-­Mora, J. V., Storeslettne, K. and Zilibotti, F. (2002), ‘A positive theory of geographic mobility and social insurance’, CESifo Working Paper No 791. Kaczmarczyk, P. and Rapoport, H. (2014), ‘Stereotype 4 “migrants undermine our welfare systems” ’ in: Fargues, P. (ed.), Is What We Hear About Migration Really True? Questioning Eight Stereotypes, Florence, European University Institute, pp. 33–42. Kirdar, M. (2010), ‘Estimating the impact of immigrants on the host country social security system when return migration is an endogenous choice’, IZA Discussion Paper No. 4894. Mayr, K. (2005), ‘The fiscal impact of immigrants in Austria – a generational accounting analysis’, Empirica Vol. 32, No. 2, pp. 181–216. Michael, M. S. (2003), ‘International migration, income taxes and transfers: A welfare analysis’, Journal of Development Economics Vol. 72, No. 1, pp. 401–411. Michael, M. S. (2011), ‘Welfare effects of immigration policies in the presence of skilled, unskilled labor and capital mobility’, Review of Development Economics Vol. 15, No. 4, pp. 651–663. Michael, M. S. and Hatzipanayotou, P. (2001), ‘Welfare effects of migration in societies with indirect taxes, income transfers and public goods provision’, Journal of Development Economics Vol. 64, No. 1, pp. 1–24. Monso, O. (2008), ‘L’immigration: quels effets sur les finances publiques?’, Revue française d’économie. Vol. 23, No. 2, pp. 3–56. Musgrave, R. (1969), Fiscal Systems, Yale University Press, New Haven. Nannestad, P. (2004), ‘Immigration as a challenge to the Danish welfare state?’, European Journal of Political Economy Vol. 20, No. 3, pp. 755–767. Nannestad, P. (2007), ‘Immigration and welfare states: A survey of 15 years of research’, European Journal of Political Economy Vol. 23, No. 2, pp. 512–532. OECD (2013), ‘The fiscal impact of immigration in OECD countries’. In: OECD, International Migration Outlook, OECD, Paris. Okun, A. M. (1975), Equality and Efficiency. The Big Tradeoff, The Brookings Institution, Washington. Ortega, F. (2004), Immigration and the Survival of the Welfare State (December 2004). UPF Economics and Business Working Paper No. 815. Available at SSRN: https://ssrn.com/abstract=849506 or http://dx.doi.org/10.2139/ssrn.849506. Péridy, N. (2006), ‘The European Union and its new neighbors: An estimation of migration potentials’, Economics Bulletin Vol. 6, No. 2, pp. 1–11. Putnam, R. (2000), Bowling Alone: The Collapse and Revival of Amer­ican Community, Simon and Schuster, New York. Razin, A., Sadka, E. and Suwankiri, B. (2011), Migration and the Welfare State. Political-­economy Policy Formation, MIT Press, Cambridge, Massachusetts. Riphahn, R. T. (1999), ‘Immigrant participation in social assistance programs: Evidence from German guestworkers’, CEPR Discussion Papers 2318. Riphahn, R. T. (2004), ‘Immigrant participation in social assistance programs: Evidence from German guestworkers. Applied Economics Quaterly Vol. 50, No. 4, pp. 329–362. Riphahn, R., Sander, M. and Wunder, C. (2010), ‘The welfare use of immigrants and natives in Germany: The case of Turkish immigrants’, LASER Discussion Papers – Paper No. 44. Roodenburg, H., Euwals, R. and ter Rele, H. (2003), Immigration and the Dutch Economy, CPB Netherlands Bureau for Economic Policy Analysis, The Hague. Rowthorn, R. (2008), ‘The fiscal impact of immigration on the advanced economies’, Oxford Review of Economic Policy Vol. 24, No. 3, pp. 560–580. Sand, E. and Razin, A. (2007), ‘The role of immigration in sustaining the social security system: A political economy approach’, CESifo Working Paper No. 1979. Simon, J. (1998), ‘Are there grounds for limiting immigration?’, Journal of Libertarian Studies Vol. 13, No. 2, pp. 137–152. Sriskandarajah, D., Cooley, L. and Reed, H. (2005), Paying Their Way. The Fiscal Contribution of Immigrants in the UK, IPPR, London.

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Section commentary Labour market Agnieszka Fihel

The studies presented in this section on the effects of international migration in Europe contribute to what we could call mainstream economic studies on labour market effects, developed mostly in Anglo-­Saxon countries and consisting both of advanced formal deliberations and econometric analyses. In this section commentary, I would like to present the specificity of research concerned with Central and Eastern Europe (CEE) and conducted in recent decades in this domain. I define the CEE as the group of post-­communist countries in Eastern part of Europe which have been undergoing the institutional transition to democracy and a market economy; some of these countries are members of the European Union1 and others are not.2 From the variety of ‘push’ and ‘pull’ factors contributing to intensified international mobility in the CEE, I need to mention three. First, the collapse of communism and of the Soviet Union, hitherto constituting a political and economic entity, had far-­reaching consequences. For at least four decades of the communist regime, the migration potential of the CEE societies had been suppressed in many ways, and the sudden liberalisation of border traffic rules that occurred between the late 1980s and early 1990s obviously entailed a boom in international mobility. Second, in the CEE countries, less developed in economic terms as compared to Western Europe, fundamental institutional reforms implied a considerable increase in unemployment and a perceptible deterioration of living conditions, which constituted important ‘push’ factors for international migration not only by and large, but also at this particular time and in this region. And third, important discrepancies in wage levels between the CEE and major destinations enhanced intensive labour migration, which took a predominantly circular form due to restrictive institutional settings that were in force in the Western Europe in the 1990s. Despite the common post-­communist heritage and relevant economic hardships related to the institutional transition, trends and patterns in international migration remained very differentiated within the CEE region. As several authors provide extensive descriptions of trends in international migration in the CEE (i.e. Frejka and Bisi, 1996; Okólski, 2000; Wallace and Stola, 2001), let me mention only that as some countries were becoming a source of intensive emigration,3 others began to absorb considerable numbers of immigrants from the CEE region4 or from remote countries, such as China, India and Vietnam.5 Also, some countries simultaneously became a source of massive outflow and a destination for return migrants and foreigners.6 Given that no generalisations can be drawn here with regard to the (net) sending/receiving status of the CEE countries,7 I would like to underline two important features specific to those 383

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CEE countries that do register intensive international in- or outflow: the predominance of labour migration and the spread of short-­term forms of migration, including temporary, circulatory or even trans-­border movements. Having said that, I would like to point out the main difference between studies concerned with the CEE region versus those dealing with the Western part of the continent: while the latter refer to economic consequences of international migration in the receiving countries (for wages, income, unemployment, welfare systems and labour market needs), the former obviously adopt the perspective of sending countries. As such, the debates on international migration in the CEE region refer to three main domains: (1) the selectivity of emigration and return migration; (2) the impact of those two types of flows on the source countries; and (3) emerging problems linked to intensive outflow and unfavourable demographic changes. As for the selectivity of migration, the most frequently addressed socio-­demographic characteristics of migrants include: gender, age, human capital, family situation, earnings, labour market status (in both the sending and receiving country) and various attachments of migrants to the home and destination countries, such as home ownership, citizenship and declared identity. Particular attention is paid to the structure of return migration as compared to the group of emigrants or nationals who stayed in the home country, and only selected examples can be mentioned here.8 Some authors provide evidence for the overrepresentation of young and well­educated persons among the returnees. For instance, based on European LFS data, Martin and Radu (2012) examine the return migration to five home countries of CEE in the years 2002–2007. Return migrants appeared to be on average younger than the general group of emigrants. In comparison to natives, returnees were also more likely to be single, living in one­person households and possessing medium and higher education levels. In the study by Fihel and Górny (2013), specific institutional circumstances accompanying developments in Poland, characterised by the fall of communism and introduction of a market economy and liberal political system, appeared to attract expatriates in the 1990s with higher levels of human capital and strong family attachments to Poland.9 A selective pattern of emigration may imply important consequences for the labour market of a sending country. Thus, numerous studies concerned with the CEE address the impact that emigration and return migration exert on the unemployment rate registered in the country of origin. The conclusions are rather ambiguous; studies for Georgia (Tukhashvili and Shelia, 2012), Moldova (Ganta, 2012) and Ukraine (Pozniak, 2012) show that if not for emigration, the unemployment rate would be significantly higher than the registered one. In turn, it appears that most emigrants from Belarus (Bobrova and Shakhotska, 2012), Poland (Bieńkowska et al., 2010, 2012; Szymańska et al., 2012) and Ukraine (Kupets, 2012) were not unemployed before undertaking labour migration, and that the lack of employment opportunities in the home country did not constitute the main motive for leaving. In the CEE countries that were members of the European Union, the outflow of persons of working age exerted a negligible impact on the rate of unemployment; in fact, the decrease in the unemployment rate that was registered in these countries was attributed in the first place to an intensified creation of new jobs and in general, to growth in employment (Rutkowski, 2007, p. 10). A large body of global research on international migration is concerned with the role of foreign workers in filling up the labour market gaps in specific economic sectors and professions. Some CEE countries are also affected by labour market mismatches,10 especially – and as elsewhere in developed countries – in hard, low-­paid and hazardous types of work. Interestingly, the CEE region appears to be both the source and destination for foreign workers ready to work in ‘3D’ occupations,11 often on a temporary and/or undocumented basis. As only a selected example of the growing reliance on labour migrants, the study for Russia evidences the large 384

Section commentary

scale employment of foreigners, mostly from the Commonwealth of Independent States, who created ‘migrant niches’ in the construction sector, wholesale and retail and household services (Zayonchkovskaya and Tyuryukanova, 2010; Iontsev and Ivakhnyuk, 2012).12 In Poland the scale of seasonal labour migration to the German agricultural sector reached 300,000 persons annually at the turn of the twenty-­first century (Kaczmarczyk and Tyrowicz, 2008). But in approximately ten years the Polish agricultural sector also became dependent on foreign seasonal labour, originating mostly from Ukraine (Górny and Kaczmarczyk, 2017). This thread of research is more frequently used in reference to CEE migrants working in the Western European countries, mostly due to larger wage disparities and the higher scale of East– West mobility. In this context, migrants from the CEE not only respond to labour market needs in the receiving countries, but also act as ‘buffers’ helping to regulate the labour supply according to the macroeconomic situation (Kahanec and Guzi, 2017): they fill labour vacancies during the period of prosperity and, by coming back to the countries of origin, they can alleviate the problem of unemployment during the economic recession. Zaiceva and Zimmermann (2016) provide evidence on increased return flows from the ‘old’ EU member states to the ‘new’ ones, due to unfavourable macroeconomic conditions. In another study, these authors show that such a return flow can be postponed if the economic situation in the sending country is also deteriorating (Zaiceva and Zimmermann, 2012). Focusing on the cross-­border mobility from the Czech Republic, Hungary and Slovakia to Austria, Wiesböck et al. (2016) show how this most temporary form of international mobility responded to changing conditions during the financial crisis. The studies on the CEE region focus on two other types of consequences of international migration for the countries of origin: financial remittances and so-­called social remittances, that is the related norms, practices, and social capital acquired in the countries of destination (Levitt, 1998, 2001). Estimates of the scale of financial remittances vary from one country to another; nonetheless, most authors stress that financial remittances sent to CEE are spent mostly on every-­day subsistence needs of migrants’ families and the purchase of durable goods (Kaczmarczyk and Okólski, 2008; Kupets, 2012). The same applies to the savings of migrants who, upon their return to the country of origin, rarely establish their own enterprises (see for Poland: Bieńkowska et al., 2010, 2012; Szymańska et al., 2012). Returnees are thought to bring ‘Western’ norms and practices to the labour markets in the countries of origin (Grabowska and Garapich, 2016), but studies are far from being conclusive. Migrants coming back to CEE countries experience reintegration difficulties, often remain jobless and do not necessarily get high wage returns from their migration experience abroad.13 The problem of so-­called brain waste may serve as an explanation here. Many authors show that the CEE labour migrants work abroad in positions below their skill levels (Dustmann et al., 2010; Fihel et al., 2015), with low returns to education (Jakubiak, 2016) in spite of their relatively good educational levels. This has been observed in the United Kingdom, Germany, Italy and Norway (Bruecker et al., 2009; Tijdens and van Klaveren, 2011; Galgóczi et al., 2011, 2012; Hazans, 2016). Also, as Shima (2010) demonstrates for Bulgaria and Romania, the structure of labour demand in the countries of origin to a great extent determines the occupational status and possible wage premiums of the returnees. The growing number of research studies addresses the economic consequences of international migration in the context of unfavourable population changes. Since the beginning of the 1990s, the CEE region has suffered from three demographic phenomena that contribute to and accelerate population ageing: (1) decline in fertility levels and the emergence of lowest-­low fertility14 (Kohler et al., 2002); (2) increases or stagnation in life expectancy (Meslé, 2004); and (3) large outmigration of young persons, whose departures additionally intensify the depression of births.15 Two of the above-­listed processes result in depopulation, that is to say a decline in 385

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the population size, which is expected to occur in the near future in countries such as Poland, Ukraine and Russia (Eurostat, 2013; United Nations, 2015). Due to demographics, the CEE region is expected to struggle with important labour market mismatches and the growing fiscal burden of ageing. I believe that these threads of research will increase in CEE countries as a result.

Notes   1 In alphabetical order: Bulgaria, Croatia, the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Poland, Romania, the Slovak Republic and Slovenia.   2 Belarus, Georgia, Moldova, Ukraine and Russia.   3 Lithuania, Romania, the Slovak Republic or Ukraine.   4 Russia.   5 The Czech Republic.   6 In Poland, the number of persons staying abroad for at least 2 months increased from a million in 2004 to 2.4 million in 2015 (GUS, 2016). At the same time, the scale of labour inflow from Ukraine reached hundreds of thousands of persons (Kaczmarczyk, 2015).   7 The studies published in the collective book edited by Okólski (2012) provide far-­reaching theoretical reflections on the migration trends in CEE region. The so-­called migration transition from a net-­ sending to a net-­receiving country, which occurred previously in the Western and Southern Europe, is expected to soon occur in CEE countries as well.   8 See also collective books edited by Kahanec and Zimmermann (2016), Galgóczi et al. (2012), a paper by Klüsener et al. (2015) and country-­specific reports written in the framework of the project ‘Labour mobility within the EU in the context of enlargement and the functioning of the transitional arrangements’ (available at www.iab.de).   9 The terms ‘brain gain’ or ‘brain circulation’, coined to express the increase in overall human capital due to non-­permanent migration, describe very well the impact of return flow to CEE shortly after the fall of communism (see also Klagge and Klein-­Hitpaβ, 2010). 10 In the aftermath, inter alia, of labour outflow, as in the case of Belarus, Moldova, Poland, or Ukraine (Kupets, 2012). 11 Dirty, demanding and dangerous. 12 These ‘migrant niches’ have no impact on the level of unemployment or wages of the natives. 13 Although these conclusions are different for returnees in Latvia (Hazans, 2008) and Romania (Epstein and Radu, 2007). 14 The Total Fertility Rate oscillating at very low levels below 1.5 (less than approximately 1.5 child per a woman in the childbearing years). 15 The process of ageing in CEE differs from that registered in other well-­developed countries due to the role of international migration. In CEE, as long as fertility decline intensifies the process of ageing from the ‘bottom’ of the population pyramid and rising life expectancy – from its ‘top’, emigration implies loss of middle-­aged persons and their descendants and indirectly contributes to the increase in the old people proportion. This impact is already observed in Georgia (Tukhashvili and Shelia, 2012), Poland (Fihel and Anacka, 2014) or Ukraine (Pozniak, 2012).

References Bieńkowska, D., Ulasiński, C., Szymańska, J., 2010. Warto wracać? Strategie zachowań reemigrantów i rozwiązania służące wykorzystaniu ich potencjału. Centrum Doradztwa Strategicznego, Kraków. Bieńkowska, D., Ulasiński, C., Szymańska, J., 2012. Kierunek Małopolska. Charakterystyka powracających i rekomendacje jak nie zmarnować ich kapitału. Centrum Doradztwa Strategicznego, Kraków. Bobrova, A., Shakhotska, L., 2012. Impact of labour migration from Belarus: demographic and economic perspective. CARIM-­East Research Report 2012/20. Bruecker, H., Baas, T., Beleva, I., Bertoli, S., Boeri, T., Damelang, A., Duval, L., Hauptmann, A., Fihel, A., Huber, P., Iara, A., 2009. Labour mobility within the EU in the context of enlargement and the functioning of the transitional arrangements. Final report for the European Commission, IAB, CMR, fRDB, GEP, WIFO, wiiw, Nürnberg.

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Section commentary Dustmann, C., Frattini, T., Halls, C., 2010. Assessing the fiscal costs and benefits of A8 migration to the UK. Fiscal Studies 31, 1–41. https://doi.org/10.1111/j.1475-5890.2010.00106.x. Epstein, G., Radu, D., 2007. Returns to return migration and determinants of subsequent moves. Paper presented at Second IZA Migration Workshop: EU Enlargement and the Labour Markets, Bonn 2007. Eurostat, 2013. EUROPOP 2013. Online database, http://ec.europa.eu/eurostat/web/population-­ demography-migration-­projections/overview. Fihel, A., Anacka, M., 2014. Demographic impact of recent outmigration from Poland. Presented at the European Population Conference, European Association for Population Studies, Budapeszt. Fihel, A., Górny, A., 2013. To settle or to leave again? Patterns of return migration to Poland during the transition period. Central and Eastern European Migration Review 2, 55–76. Fihel, A., Janicka, A., Kaczmarczyk, P., Nestorowicz, J., 2015. Free movement of workers and transitional arrangements: lessons from the 2004 and 2007 enlargements, CMR Report. Frejka, T., Bisi, R., 1996. International migration in Central and Eastern Europe and the Commonwealth of Independent States. United Nations, New York. Galgóczi, B., Leschke, J., Watt, A., 2011. Intra-­EU labour migration: flows, effects and policy responses. ETUI Working Paper 2009/03. Galgóczi, B., Leschke, J., Watt, A. (Eds), 2012. EU labour migration in troubled times: Skills mismatch, return and policy responses. Routledge, Oxford. Ganta, V., 2012. The impact of international labour migration on the Republic of Moldova. CARIM-­East Research Report 2012/32. Górny, A., Kaczmarczyk, P., 2017. A known but uncertain path. The role of foreign labour in Polish agriculture. Journal of Rural Studies. https://doi.org/10.1016/j.jrurstud.2017.12.015. Grabowska, I., Garapich, M.P., 2016. Social remittances and intra-­EU mobility: non-­financial transfers between U.K. and Poland. Journal of Ethnic and Migration Studies 42, 2146–2162. https://doi.org/10.10 80/1369183X.2016.1170592. GUS, 2016. Informacja o rozmiarach i kierunkach czasowej emigracji z Polski w latach 2004–2015. GUS, Warszawa. Hazans, M., 2008. Post-­enlargement return migrants’ earnings premium: Evidence from Latvia (SSRN Scholarly Paper No. ID 1269728). Social Science Research Network, Rochester, NY. Hazans, M., 2016. Migration experience of the Baltic countries in the context of economic crisis, in: Kahanec, M., Zimmermann, K. (Eds), Labour migration, EU enlargement, and the Great Recession. Springer­Verlag, Berlin Heidelberg, pp. 297–344. Iontsev, V., Ivakhnyuk, I., 2012. Role of international labour migration in Russian economic development. CARIM-­East Research Report 2012/04. Jakubiak, I., 2016. Immigrants in the United Kingdom: Wage gap and origin. Ekonomia 43, 67–89. Kaczmarczyk, P. (Ed.), 2015. Recent trends in international migration in Poland. The 2013 SOPEMI report. CMR Working Papers 84/144. Kaczmarczyk, P., Okólski, M., 2008. Economic impacts of migration on Poland and the Baltic states. FAFO paper 2008–01, FAFO, Oslo. Kaczmarczyk, P., Tyrowicz, J., 2008. Migracje sezonowe Polaków do Niemiec. Biuletyn FISE 2008. Kahanec, M., Guzi, M., 2017. How immigrants helped EU labor markets to adjust during the Great Recession. International Journal of Manpower 38, 996–1015. https://doi.org/10.1108/IJM-­08-20170205. Kahanec, M., Zimermann, K. (Eds), 2016. Labor migration, EU enlargement, and the Great Recession. Springer­Verlag, Berlin Heidelberg. Klagge, B., Klein-­Hitpaβ, K., 2010. High-­skilled return migration and knowledge-­based development in Poland. European Planning Studies 18, 1631–1651. Klüsener, S., Stankūnienė, V., Grigoriev, P., Jasilionis, D., 2015. The mass emigration context of Lithuania: Patterns and policy options. International Migration 53, 179–193. https://doi.org/10.1111/ imig.12196. Kohler, H.-P., Billari, F., Ortega, H.A., 2002. The emergence of lowest-­low fertility in Europe during the 1990s. Population and Development Review 28, 641–680. Kupets, O., 2012. The economic and demographic effects of labour migration in the EU Eastern partners and Russia: A synthesis report. CARIM-­East Research Report 2012/26. Levitt, P., 1998. Social remittances: Migration driven local-­level forms of cultural diffusion. The International Migration Review 32, 926–948. https://doi.org/10.2307/2547666.

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Agnieszka Fihel Levitt, P., 2001. The transnational villagers. University of California Press, Berkeley. Martin, R., Radu, D., 2012. Return migration: The experience of Eastern Europe. International Migration 50, 109–128. https://doi.org/10.1111/j.1468-2435.2012.00762.x. Meslé, F., 2004. Mortality in Central and Eastern Europe: Long-­term trends and recent upturns. Demographic Research special collection 2, 45–70. Okólski, M. (Ed.), 2012. European immigrations. Trends, structures and policy implications. Amsterdam University Press, Amsterdam. Okólski, M., 2000. Recent trends and major issues in international migration: Central and East European perspectives. International Social Science Journal 52, 329–341. https://doi.org/10.1111/14682451.00263. Pozniak, O., 2012. External labour migration in Ukraine as a factor in socio-­demographic and economic development. CARIM-­East Research Report 2012/14. Rutkowski, J., 2007. From the shortage of jobs to the shortage of skilled workers: Labor markets in the EU new Member States. IZA Discussion Paper. Shima, I., 2010. Return migration and labour market outcomes of the returnees. Does the return really pay off? The case-­study of Romania and Bulgaria. FIW Research Reports 2009/10, 1–50. Szymańska, J., Ulasiński, C., Bieńkowska, D., 2012. Zaraz wracam … albo i nie. Skala powrotów, motywacje i strategie życiowe reemigrantów z województwa śląskiego. Centrum Doradztwa Strategicznego, Kraków. Tijdens, K., van Klaveren, M., 2011. Over and underqualification of migrant workers. Evidence from Wage-Indicator survey. AIAS Working Paper 11 -110, University of Amsterdam. Tukhashvili, M., Shelia, M., 2012. The impact of labor emigration on the demographic and economic development of Georgia in the post-­Soviet period. CARIM-­East Research Report 2012/29. United Nations, 2015. World Population Prospects, the 2015 revision. Wallace, C.D., Stola, D. (Eds), 2001. Patterns of migration in Central Europe. Palgrave Macmillan, Basingstoke. Wiesböck, L., Verwiebe, R., Reinprecht, C., Haindorfer, R., 2016. The economic crisis as a driver of cross-­border labour mobility? A multi-­method perspective on the case of the Central European Region. Journal of Ethnic and Migration Studies 42, 1711–1727. https://doi.org/10.1080/1369183X.2016.1162354. Zaiceva, A., Zimmermann, K.F., 2016. Returning home at times of trouble? Return migration of EU enlargement migrants during the crisis, in: Kahanec, M., Zimermann, K. (Eds), 2016. Labor migration, EU enlargement, and the Great Recession. Springer, Berlin, Heidelberg, pp. 397–418. Zaiceva, A., Zimmermann, K.F., 2012. Returning home at times of trouble? Return migration of EU enlargement migrants during the crisis. IZA Discussion Paper 7111. Zayonchkovskaya, Z., Tyuryukanova (Eds), 2010. Migration and demographic crisis in Russia. MAX Press, Moscow.

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Part VII

Pan-­European cooperation on migration management

30 The politics of EU external migration policy Natasja Reslow

Introduction The arrival of over one million migrants at Europe’s southern borders in 2015 has been called a migration ‘crisis’. European countries scrambled to put together a response to the inflow of migrants, amid desperate and chaotic scenes. The public response oscillated between concern and rejection of asylum-­seekers, to outpourings of support and donations of goods to charities. At the European Union (EU) level, one policy response to the ‘crisis’ was externalisation, meaning that the solution was seen to lie in cooperation with neighbouring countries. The European Agenda on Migration promised to act ‘together with partner countries to put in place concrete measures to prevent [migrants undertaking] hazardous journeys’ (European Commission, 2015, p. 5). One of the most well-­known examples of this approach was the agreement reached with the Turkish government, allowing irregular migrants to be returned from Greece to Turkey. In return for Turkish cooperation on this matter, European politicians promised eventual visa-­free travel for Turkish citizens to the EU, a reinvigoration of the Turkish accession process, the resettlement of Syrian refugees from Turkey to the EU, and €3 billion in funding to the Refugee Facility for Turkey (European Commission, 2016a; European Council, 2016). This agreement is to be the model for new ‘migration compacts’, which will be the main framework for cooperation with non-­EU countries (European Commission, 2016b). Despite the supposedly unprecedented migration situation in Europe, externalisation is not a new phenomenon. Since the 1990s, EU policy documents have emphasised the need for cooperation with non-­EU countries on migration – in other words, migration should be incorporated into external relations, as one of the tools available in negotiations with non-­EU countries: with neighbours, but also countries of origin and transit of migrants (e.g. European Commission, 2002). This was emphasised as a necessary step towards ‘effective and efficient’ migration policies, in the context of increasing irregular migration to Europe (e.g. European Commission, 2006, p.  4). However, EU policy documents have also acknowledged that cooperation with the EU on irregular migration is not a priority for partner countries; such cooperation must therefore be ‘incentivised’, through the use of both positive and negative incentives (e.g. European Commission, 2016b). Over the years, the EU has built up a substantial tool-­kit of policy instruments (see Andrade et al., 2015; Carrera et al., 2015). This includes legally binding instruments such as readmission agreements and visa facilitation agreements; 391

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these two agreements are often presented as a package: the non-­EU countries which sign a readmission agreement may in return be offered a visa facilitation agreement. The EU also makes use of ‘softer’ policy tools, notably the Mobility Partnerships that take the form of political declarations, implemented on a project basis. Migration is discussed in various regional and bilateral dialogues, such as the Rabat Process, which brings together EU member states and countries in North and West Africa. Finally, the EU funds migration-­related projects in the countries of origin and transit through the Asylum, Migration and Integration Fund. EU external migration policy raises interesting questions for scholars of governance. First, it combines two policy fields (migration policy and foreign policy) which are politically sensitive, divisive, and often seen as being central to national sovereignty. Why, then, do the EU member states permit a role for the EU in this area? Logically, one would expect them to try to restrict the role of the supranational EU institutions. And yet initiatives have been agreed and implemented, the necessary support rallied. There is thus a need to understand the nuances of member states’ preferences, in order to explain the circumstances under which they submit to policy cooperation in this field. Second, the non-­EU countries with which the EU seeks cooperation are likely to have very different preferences on migration than do the EU and its member states. Particularly cooperation on readmission is unpopular both with non-­EU countries’ authorities and populations (e.g. Cassarino, 2007; Ellermann, 2008; Weinar, 2011). However, the EU conditions other types of cooperation on non-­EU countries’ willingness to readmit both their own and other nationals (e.g. Council of the European Union, 2005). Why do non-­EU countries agree to cooperate with the EU on migration issues? In this chapter I discuss how the literature has approached these puzzling questions. As many authors examine these two sets of issues separately, I will first examine the strand of literature related to the intra-­EU dimension (interactions between the member states and the EU institutions) and then to the international dimension (interactions between the EU and non-­EU countries). I will conclude by highlighting those analytical contributions that attempt to bring these separate strands together, for a complete conceptualisation of the policy-­making system.

EU external migration policy: intra-­EU dynamics The literature on EU external migration policy can be divided into two strands: the literature dealing with internal EU processes; and the literature examining how ‘the EU’ interacts with non-­EU countries. The literature on the internal dynamics that lead to EU external migration policy being agreed and adopted focuses on the nature of the interactions between the EU institutions and the member states. It has often been critical of the content of EU external migration policy, arguing that the policy-­making style results in policies that focus (too much) on migration control and prevention. This section summarises the main features and arguments of this research.1 In both migration policy and foreign policy, the EU has gradually expanded its competences over the past decade. Migration has been ‘supranationalised’, meaning that on most migration-­ related matters the European Commission has the right to propose legislation, and the European Parliament acts as an equal co-­legislator with the member states (in the Council). The resulting legislation is subject to the jurisdiction of the European Court of Justice. The EU still conducts its external relations on an intergovernmental basis, with strong roles for the member states and the use of flexible, non-­legally binding policy tools. However, the EU’s diplomatic role has strengthened with the establishment of the European External Action Service in 2011 and the creation of EU delegations in non-­EU countries. External migration policy raises particular questions surrounding EU decision-­making dynamics because it brings together these two policy areas, which are both central to what 392

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nation states do: control the national territory and decide who shall be admitted to it (migration policy), and conduct diplomatic relations and represent the national interest at the international level (foreign policy). This gives potential for tensions between the EU institutions and the member states for control over EU external migration policy. One group of contributions to the literature therefore focuses on intra-­EU dynamics in the decision-­making process: which actor(s) play(s) a leading role and why? Several authors argue that the member states have a dominant role (e.g. Sterkx, 2008), and in particular the role of justice/home affairs officials is inflated through bodies such as the High Level Working Group on Asylum and Migration (Boswell, 2003; Lavenex and Kunz, 2008; Chou, 2009). The High Level Working Group consists of senior representatives of the member states, and its purpose is to develop a common EU policy towards countries or origin and transit of migrants and asylum-­seekers (Council of the European Union, 2014). The central role of the High Level Working Group in developing external migration policy gives a large role in this policy to its members, namely national justice/home affairs officials. Other authors focus on the EU institutions, and even disagree that member states play a leading role: Chou and Riddervold (2015), for example, argue that the European Commission strongly influences policy developments in EU external migration policy, despite having limited formal competences. They explain it by its ‘expert authority’ (knowledge and organisational resources available to it). But how exactly does this expert authority translate into more power? The European Commission is sub-­divided into Directorates-­General (DGs). Migration is mainly the purview of DG Migration and Home Affairs, but DG International Cooperation and Development (Devco) also plays a role, particularly through its control of EU external funding instruments, while in the past DG RELEX included migration-­related policies in its instruments. Boswell (2008) conducted an intra-­Commission analysis to show that different DGs adapted differently to external dimension of migration policy; for instance, DG Devco was unable to play a leading role due to being understaffed. Coordination problems arise between DGs, each of which seeks to protect its own portfolio and preferences (Wunderlich, 2010), leading to destabilising turf-­wars. Also outside of the Commission, other institutions enter the rivalry and try to carve a place for themselves in the field dominated by inter-­governmentalism. Lavenex and Kunz (2008) find that the European Parliament has been sidelined due to the extensive use of non-­legally binding instruments by the Council and the Commission. Currently the European Parliament’s role in external migration policy is limited to approving readmission and visa facilitation agreements. Besides these more functional explanations for decision-­making dynamics, various theoretical approaches are applied to explain the interaction between the EU institutions and the member states. Lavenex (2006) adopts a venue-­shopping type argument, namely that the externalisation of EU migration policy occurred because immigration ministers sought to escape constraints at the EU level. Placing the activities in the realm of foreign policy was an exit strategy that allowed for intergovernmental approaches to flourish. When trying to explain the role of the European Commission in such a setting, Menz (2015) proposed a principal-­agent approach, arguing that there are advantages to the member states of appointing the European Commission to conduct external negotiations on migration, but also that there is evidence of ‘principal slippage’ when member states engage in bilateral relations with non-­EU countries. Some authors take a policy analysis approach instead: Trauner and Wolff (2014) focus on the policy instruments themselves, explaining how they are designed and evolve. They argue that the meaning, rationale and functioning of EU external migration policy instruments may change as these instruments move from one governance setting to another (for example from the EU to the non-­EU country), and that policy goals can be diluted at the implementation stage. Thus 393

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the relationship between actors along this route can explain the evolution. Turning attention from the EU towards the member states, Triandafyllidou (2014) analyses approaches to externalisation adopted by the southern member states (Italy, Greece, Spain, Malta). These national approaches can be described as either gate-­keeping or fencing: ‘Gate-­keeping policies aim at restricting practical legal access to a nation and its institutions, while fencing measures actively target illegal migrants in order to arrest and then expel them’ (p. 10). Their emergence is linked to the national policy agenda, not driven by an explicit EU policy. Some elements go against EU guidelines and even directives, putting in the spotlight the tensions between EU and national sovereignty. In terms of policy content, several contributions examine the type of instruments that emerge from the decision-­making process sketched above. The terms used may differ but the argument these authors make is the same: EU external migration policy is overly concerned with migration management at the expense of development concerns and migrants’ rights. Chou (2009) calls this the dominance of a ‘security discourse’. Lavenex and Kunz (2008) argue that EU policy is ‘repressive’. Sterkx (2008) finds that EU external migration policy focuses on ‘control’ rather than a comprehensive approach including for example also development policy. Carrera and Hernández i Sagrera (2011) call the Mobility Partnerships ‘insecurity partnerships’ because they increase vulnerability of non-­EU citizens by not ensuring a clear framework of rights. Papagianni (2013) questions whether EU external migration policy really takes a ‘balanced, comprehensive’ approach, due to the lack of action on the migration-­development nexus and circular migration, and lack of human rights guarantees. Finally, Boswell (2003) argues that a ‘control’ approach has prevailed over a ‘preventive’ approach addressing the root causes of migration. These academic assessments line up with the decades-long criticism directed by non-­ governenmental organisations (NGOs) at EU external migration policy: namely that through its focus on migration control it fails to consider human rights implications and puts migrants’ lives in the hands of regimes which are unable or unwilling to guarantee their rights. More recently, Amnesty International has been particularly critical of the ‘fatal flaws’ in the EU–Turkey agreement, as Turkey has been accused of forcibly returning migrants to Syria (Amnesty, 2016). Cassarino (2007) is critical of the use of informal mechanisms (such as administrative arrangements and memoranda of understanding) in EU external migration policy because they are not subject to political or judicial accountability, and therefore potentially endanger migrants’ rights. The criticism expressed by the scholars and activists is a sign of disappointment with the European institutions, which are seen as unwilling, or incapable of, standing up to the member states’ political agenda and delivering on the core European values of human rights.

EU external migration policy: negotiating with non-­EU countries A second strand of literature examines how ‘the EU’ interacts with non-­EU countries. Here, ‘the EU’ is taken as the unit of analysis, meaning that member states’ preferences are not unpacked. Instead, the focus is on how the policy instruments that have been agreed on within the EU are then negotiated with non-­EU countries in the international system. There are three main approaches adopted by authors writing within this strand: a domestic politics approach to the preferences and interests of the non-­EU countries concerned; an EU governance approach to the strategies adopted by the EU; and an international relations approach examining the position of EU external migration policy within the international system and relations between the EU and non-­EU countries of origin and transit. Geographically, authors who examine how non-­EU countries’ national preferences and domestic political contexts shape the outcomes of EU external migration policy focus on one of 394

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three regions: Africa, Central Asia, or Eastern Europe. The question about preferences is asked quite often. Why would a country engage or not engage in cooperation with the EU on a given instrument? Chou and Gibert (2012) and Reslow (2012) explain the failure of the EU–Senegal Mobility Partnership by the preferences of the Senegalese government, which was not interested in cooperation with the EU, seeing potentially more promise in bilateral cooperation. Cassarino (2014) argues that the Tunisian government of Ben Ali used the rules promoted by the EU for other ends, namely to exercise power and control over Tunisian society and even Tunisians abroad. For example, it adopted a law criminalising illegal migration which officially aimed to respond to EU expectations about tackling unauthorised migration, but the implementation of this law also allowed the Tunisian government to reinforce monitoring and control of society as a whole because the law encouraged all Tunisians to act as informers and essentially punished those left behind. Wolff (2014) looks at a number of domestic veto players and the regional position of the non-­EU country concerned. She analyses the readmission negotiations with Morocco and Turkey and shows, for instance, that the Moroccan government faces opposition from high-­level domestic veto players, like the king (cf. Wunderlich, 2010). Most authors writing within this strand of literature, however, adopt an EU-­centric approach, questioning how much influence the EU has had on migration issues in non-­EU countries. Makaryan and Chobanyan (2014) argue that EU impact on migration policy in Georgia has been greater than in Armenia and Azerbaijan, because the latter two countries developed their national migration policies in a time before the EU was active in the region. In seeking to explain differences in EU influence over migration issues, the most common theoretical framework adopted is the conditionality approach. Trauner (2009) has argued that ‘conditionality’ should not only be taken to mean membership conditionality but also what he terms ‘policy conditionality’, particularly when the non-­EU country concerned has no membership prospects. The example he gives is the use of visa policy as a source of leverage in the Western Balkans (see also Trauner and Kruse, 2008). Bürgin (2012) argues that the European Commission’s initiative in offering Turkey a visa liberalisation dialogue (instead of only visa facilitation) changed the Turkish government’s cost-­benefit calculation in favour of signing a readmission agreement. At the other end of the spectrum, Franke et al. (2010) argue that the EU has failed to provide adequate rewards for Ukraine’s cooperation on justice and home affairs issues, which decreases its impact. Finally, a number of authors zoom out and take a broader IR approach, for instance by analysing the power relations between the EU and the non-­EU country concerned. Hernández i Sagrera (2010) argues that the power symmetry between the EU and Russia has led to convergence towards bilaterally agreed migration norms. Maisenbacher (2015) challenges the notion of the EU as soft/normative power by arguing that socio-­economic power dynamics between EU and non-­EU countries shape EU external migration policy. Kunz and Maisenbacher (2013) conduct a productive power analysis, and argue that EU Mobility Partnerships and Swiss migration partnerships are not consent-­oriented and technical but actually sites of discursive struggles. Some authors have also analysed the role of international organisations in delivering EU external migration policy – in other words, the means used to achieve EU migration policy ends at the international level. International organisations such as the International Organisation for Migration (IOM), UNHCR (the UN refugee agency), and the International Labour Organisation (ILO) play various roles in EU external migration policy: they act as counterweights, whereby they complement or correct EU policy; they act as subcontractors, implementing projects on behalf of the EU; or they act as transmitters, transferring EU rules to non-­EU countries (Lavenex, 2016). These organisations may also be competing against each other, thereby forming an obstacle to the realisation of EU external migration policy (Korneev, 2013). International organisations are 395

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not merely instruments of the EU: they possess agency and act in a self-­interested way. Korneev (2014) shows that IOM has sought to extend its mission and has shaped policy outcomes, for instance in EU–Russia migration relations.

EU external migration policy: bridging the gap These two main strands – the literature dealing with internal EU processes and the literature examining how ‘the EU’ interacts with non-­EU countries in the international system – rarely meet. Most authors writing about EU external migration policy are either examining the intra­EU dynamics between the EU institutions and the member states (internal dimension) or the negotiations between the EU and the non-­EU country (external dimension). And yet the decision-­making process consists of three sets of actors: the member states, the EU institutions, and the non-­EU countries. In order to conceptualise the policy system in its entirety, these three sets of actors should be considered as a whole. Some authors do try to bridge the gap, by considering the roles and preferences of all three sets of actors. Chou and Gibert (2012), in addition to analysing the Senegalse government’s preferences and the European Commission’s negotiation strategy, consider the position of the French government too. Bürgin (2012) acknowledges that some member states oppose visa liberalisation for Turkey. Lavenex and Stucky (2011) link intra-­EU competence to the difficulty of negotiating with non-­EU countries: non-­EU countries are most interested in concessions on mobility, but this remains a member state competence. Coleman (2009) traces the development of EU readmission policy and looks both at intra-­EU dynamics (for example how countries are selected for readmission agreements) as well as non-­EU countries’ strategies in the negotiations. Wunderlich (2010) argues that relations between EU member states and a non-­EU country can either facilitate or hinder the EU’s cooperation with that country. The three-­level game model has been developed as a comprehensive conceptualisation of the decision-­making process in the area of EU external relations (Reslow and Vink, 2015), building on the concept of two-­level games (Putnam, 1988). The model brings together the three actors involved in the making of EU external migration policy: at the international level (level I), the EU and non-­EU countries negotiate on migration issues. The EU level (level II) is the decision-­ making process within the EU, between the EU institutions and the member states, on external migration policy. Level III consists of the member states’ domestic preference formation on EU external migration policy. The three levels are linked through two interactions: the policy that is decided upon by the EU institutions and the member states (levels II and III) becomes the subject of negotiation between the EU and the non-­EU country (levels I and II). Member states and non-­EU countries may also be linked directly through bilateral relations, bypassing the EU. Such bilateral relations are relevant because they may affect member states’ and non-­EU countries’ preferences on whether or not to participate in EU external migration policy instruments. The domestic preferences of member states and non-­EU countries are crucial to the dynamics of the three-­level game. According to the Europeanisation literature, member states’ preferences will depend on the level of ‘fit’ between the proposed EU policy and their national policy positions, because a significant degree of ‘misfit’ implies high adaptation costs. Member states adopt one of three strategies towards EU policy: pace-­setting (actively shaping EU policy to match domestic preferences); foot-­dragging (slowing down or containing policies which would have negative domestic consequences); or fence-­sitting (displaying an ambiguous position, neither consistently pace-­setting nor foot-­dragging) (Börzel, 2002). The policy conditionality model presents the strongest account of non-­EU countries’ preferences (Schimmelfennig and Sedelmeier, 2004). The EU sets certain conditions for non-­EU 396

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countries to reach, and rewards compliance/sanctions non-­compliance. Non-­EU countries’ governments conduct a cost-­benefit calculation: if the benefits of compliance outweigh the costs, they will cooperate with the EU. The cost-­benefit calculation is positive in case there is resonance between EU and national policy; in case there is administrative capacity for complying with EU policy; or in case the costs of adopting EU policy are low. The willingness of each actor to agree to a policy outcome will depend on two factors: first, the cost of no agreement; and second, the domestic ratification procedure. If the cost of no agreement is high then agreement can be more easily reached: the actor concerned has a significant stake in an agreement being reached, and is thus prepared to be more flexible on the content of that agreement. If the domestic ratification procedure is easy, then agreement can be more easily reached: the central negotiator does not need to have an agreement approved by domestic institutions and therefore has more room for manoeuvre in the negotiations. In this way, the three-­level game allows us to see the interactions between the different actors involved in a negotiation and how the domestic constraints that they face limit what they can agree to. For example, a non-­EU country may be wary of an agreement, knowing that it will have to be ratified by domestic actors opposed to its content. The Senegalese government knew that the parliament, which had previously refused to ratify bilateral readmission agreements with European countries, would not agree to the EU-­wide readmission agreement that would be required as part of a Mobility Partnership (Reslow, 2012, p. 408). The three-­level game can also uncover the awkward negotiating position that an actor finds itself in, trapped between the preferences of the two other ‘levels’ of a negotiation. The European Commission finds itself in such a position on readmission agreements: it knows that the clause on third-­country nationals is unpopular with non-­EU countries and has argued that this should be removed (European Commission, 2011), but member states insist on maintaining it (Council of the European Union, 2011). This model can also give analytical insight into current events, such as the responses to the ‘migration crisis’: given the dramatic events in 2015, the EU institutions and member states were desperate to prevent further arrivals of migrants in Europe. Their cost of no agreement was thus very high going into discussions with the Turkish government, which may account for the significant concessions made: visa liberalisation for Turkish citizens; reinvigoration of the accession process; €3 billion Refugee Facility; and resettlement of Syrian refugees from Turkey (European Council, 2016).

Conclusion There is a wealth of literature examining how EU external migration policy comes about, both in terms of the intra-­EU dynamics between the EU institutions and the member states, and in terms of the negotiation of EU external migration policy within non-­EU countries and in the international system. Future research should therefore increase its focus on policy implementation and evaluation. The importance of policy implementation has been emphasised in existing research on EU external migration policy: Papagianni (2013, p.  292) finds that, ‘despite the good will and intentions, implementation [of the Global Approach to Migration and Mobility] often proves problematic’, thus implying that the policy on paper may not necessarily be the policy in action. Collyer (2012, p. 520) comments on the deaths of migrants at the borders of Ceuta and Melilla in 2005: ‘The introduction of new laws and policies would not have helped at all; the correct implementation of the existing ones would have prevented everything that happened.’ Unfortunately the literature on implementation of EU external migration policy is at its very beginning (Wunderlich, 2012; 2013a; 2013b; Reslow, 2015), and literature seeking to evaluate EU external migration policy outcomes in a systematic manner is non-­existent 397

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(Reslow, 2017). Future research must be guided by the following questions: how is EU external migration policy put into practice? How successful is it? And why is it successful/unsuccessful? EU external migration policy has very real implications for migrants’ rights and ultimately their lives. We therefore need to understand what this policy means in practice and which impacts it has.

Note 1 It will not trace the development of EU external migration policy over time (see instead Haddad, 2008; Sterkx, 2008; Papagianni, 2013).

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31 International organisations and the politics of migration in Europe Marta Jaroszewicz Introduction Compared to other areas of international relations, migration is characterised by a low level of institutionalised international cooperation. Migration at the European continent is no exception. Nevertheless, the end of the Cold War brought some attempts to at least partially codify and harmonise migration policies across Europe, such as the attempts of the Council of Europe (CoE) and the Organisation of Security and Cooperation in Europe (OSCE). Particularly, in the 1990s, these organisations attempted to involve countries of the former Eastern Bloc into groundbreaking dialogues on migration issues (Hix and Niessen 1996; Koslowski 1998; Weinar 2012). For instance, the CoE strongly influenced the legal framework of the first policies on the unrestricted movement of populations between post-­Soviet states, mostly via rulings of the European Court for Human Rights (ECHR). Those activities stopped in the second half of the 1990s, and did not lead to a wider cooperation or the adoption of common, pan-­European migration policies, or even a common approach to mobility of people. The European Union (EU) took on the leading role in the diffusion of migration policies on the continent. It did so through the gradual expansion of migration norms and standards via enlargement, the Europeanisation of certain regulations, and the externalisation of EU migration control. At the same time, Russia was also trying to export its own migration policy standards to the Commonwealth of Independent States (CIS) (Molodikova 2009), and later on, to the Eurasian Economic Union (EEU). The two emerging paradigms of migration management were not necessarily contradictory, but their very existence pointed to the impossibility of a pan-­European approach. The continental schism can be explained by the reality on the ground. Several scholars have stated that by the beginning of this century, or at least by mid-­2000s, a bipolar migration system had emerged on the European continent. It consists of the EU, with a centre in the ‘old’ member states, and the CIS and its centre in Russia (Ivakhnyuk 2008; Molodikova 2009). Following the classic definition of migration systems (Kritz and Zlotnik 1992), these scholars have suggested that several binding factors influence the creation of migration systems between countries, including: the convergence of migration policies; close economic and political ties; geographic proximity; common migration patterns. According to Ivakhnyuk and Tishkov (2006) the dissolution of the Soviet Union did not destroy the Soviet migration system, however the newly transformed system interacts much 401

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more closely with the EU migration system. Moreover, Ryazancev and Korneev (2013) identify several subsystems in the Eurasian migration system: a migration subsystem uniting Russia and Central Asia, Russia and Belarus (with its freedom of movement principle) and finally, Ukraine and Moldova linked equally to the EU and Russia. Against this context, the European scholarship has not been particularly concerned with the role of institutions or organisations in shaping migration policies on the whole continent preferring to more strictly examine their influence on the Southern borders of the EU. Analyses of the role of these institutions and organisations in policy diffusion in Eastern Europe are few and far between. In this chapter I will present existing scarce scholarship on the topic, as well as the institutional structure of migration cooperation in Europe. The chapter consists of four parts. I will begin by describing the current role of Pan-­European organisations as vehicles of change on the European continent in strategic, political, and security framework. Then I move to describing the activities of pan-­European organisations, other international organisations, as well as looser forms of migration cooperation. I will then pass to the description of the institutional setting shaping migration polices in the post-­Soviet area. I conclude with several recommendations for the future research.

Pan-­European organisations as vehicles of a West-­driven change In recent years, few scholars have studied the role of Pan-­European organisations like the Organisation of Security and Cooperation in Europe or CoE as vehicles of change and engines of European integration. Understandably, greater attention has been paid to the EU’s role as a promoter of democracy and a norm-­setter for the continent (Schumacher and Bouris 2017), a soft power able to implement parts of its migration control policies far from its borders (Kunz et al. 2011). However, at the start of the 1990s, amid the immense expectations for a genuine unification of the European continent, studies of pan-­European organisations were quite common. Scholars who studied the OSCE and CoE at that time focused on two overarching issues. First, the possible political and security role pan-­European organisations in the re-­united Europe might take on. And second, the opportunities and limitations faced by these organisations when assisting post-­communist states during democratic transformation. The majority of researchers looking at these issues underlined that a new pan-­European order had been established with the signature of the Charter of Paris of 1990, which was developed and adopted by the European states in the framework of the Conference on Security and Cooperation in Europe (CSCE), later on renamed the OSCE (Organisation of Security and Cooperation in Europe) (Bothe et al. 1997). Literature from that period was filled with assumptions that the OSCE would create, under its auspices, a new Pan-­European ‘cooperative security order’ based on common values and standards ‘from Vancouver to Vladivostok’ (Cottey 1999; Emmerson 2008). The scholars assumed, in a typical Western liberal fashion, that security at the European continent would be maintained through the promotion of Western rules and norms to the East (Warkotch 2007). The OSCE had been also described as a normative organisation with efficient instruments to promote democracy in post-­communist states, particularly after the establishment of the Office for Democratic Institutions and Human Rights (ODIHR) in 1992; the OSCE was praised for sending monitoring missions to observe political elections in new post-­communist democracies (Smith and Timmins 2002). At the same time, scholars underscored that Central European states and former Soviet Union countries lacked the financial resources to transform and reform their political systems, and that pan-­European organisations were offering weak incentives in this regard. It was one of the reasons why political, economic, and societal transformation paths diverged in the region 402

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(Sperling and Krichner 1997). Over time, support for the OSCE faltered; after the dissolution of the Soviet Union, Russia was hoping that OSCE could be transformed into a singular security organisation for the continent. When it became obvious that the North Atlantic Treaty Organization (NATO) was planning to expand eastward, Russia gradually lost its interest in the OSCE (Pacer 2015). According to Sperling and Krichner (1997), contrary to the OSCE, the CoE was able to adapt more swiftly to events in the Eastern Bloc in 1989 promptly offering those countries membership. It also expanded its scope of activities from the traditional goal of preserving European cultural heritage, to promoting judicial and legal enforcement reforms, local and regional democracy, and education. The CoE legislative framework, including the European Charter for Regional or Minority Languages, as well the Framework Convention on the Protection of National Minorities, established a more universal pan-­European framework for nationally-­based protection of minorities. However, the organisation gradually lost its influence because of a lack of funding.

Migration and mobility activities of pan-­European organisations Council of Europe and OSCE Not much scholarly attention has been devoted to examining the role of pan-­European organisations in shaping pan-­European policy approaches to international migration. The few studies that have done so are very limited in scope and mainly focus on the early years immediately following the collapse of the Soviet Union. In 1991, pan-­European organisations were confronted with multidimensional challenges in the area of mobility and migration across the continent. Early predictions from German or Austrian scholars suggested that there would be a huge demand for East–West migration (Bauer and Zimmerman 1999; Honekopp 1991). In the early 1990s the annual average number of officially recorded net migrations from Central and Eastern European countries to Western countries was around 850,000; the number of migrations in the three preceding decades was less than half this amount (Frejka 1996; Okolski 1999). In the years immediately following the dissolution of Eastern–Western Bloc system, pan-­European organisations were preoccupied with the task of monitoring possible migration inflows, and allowing for controlled mobility from the Eastern part of the continent. During the CoE Conference of Ministers on the Movement of Persons from Central and Eastern European Countries, held in Vienna in January of 1991, the ministers responsible for migration recommended the harmonisation of national policies on migration flows. This was to be achieved by fostering the short-­term movement of persons through policies such as ‘youth exchanges’ and ‘providing opportunities for training and employment’, as well as finding common answers to the challenges of refugee protection and providing assistance to the forcibly displaced persons (CoE 1991). The most practical outcome of Vienna conference came from the decision to create the so-­ called Vienna Group, where senior officials from selected European Community (EC) countries and Central and Eastern European countries could exchange experience and information on increased migration flows (Weinar 2012). The other important decision to come out of the Vienna conference was the launch of traineeship programmes for young professionals, offered by France and Germany (later on: the Tempus programme). Also under the auspices of the CoE, the Budapest Process was initiated in 1993. As a precursor to the regional consultative process it offered a semi-­formal forum for migration-­related discussions and cooperation between Eastern and Western Europe. 403

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In the 1990s, the CoE was a leader of the human rights promotion on the continent. It provided a normative framework related to the protection of migrants’ rights, e.g. in the area of human trafficking or undocumented migration (CoE 1993, 1998). The CoE also created a specialised migration advisory body which is responsible for the promotion of human rights in three main areas of migration policies: integration of migrants; asylum and return; and the integration of Internally Displaced Persons (IDPs). Over the same period of time, the OSCE was primarily preoccupied with security issues. However its special body established in 1992, the ODIHR had a clear mandate to work on migration issues. ODIHR is still active today promoting gender sensitivity in migration policies, social empowerment, and the integration of migrants into host societies (Weinar 2012).

International organisations and regional consultative processes Starting in the 2000s, scholars of international relations started paying attention to the role of specialised international organisations and less formal migration cooperation on the European continent (Faist and Ette 2007, Hess 2010). In fact, literature on international organisations and their role in pushing EU migration agenda has been the most developed. Specialised international organisations dealing with migration are global in nature, yet in Europe they have established a special role for the EU’s policy partners. Scholars underline that three organisations, namely, the International Organisation for Migration (IOM), the International Centre for Migration Policy Development (ICMPD), and the United Nations High Commissioner for Refugees (UNHCR), play prominent roles in the implementation of the external dimensions of the EU’s migration policy, not only supporting its conceptualisation but also receiving a prominent share of EU funds dedicated to this area (Korneev 2014, Korneev 2017, Weinar 2011). UNHCR is a United Nations organisation with a clear legal mandate based on the 1951 Geneva Convention Relating to the Status of Refugees. The main areas of UNHCR engagement in Europe thus far have included: assisting in asylum systems reform (including the take-­over of case processing); the implementation of Regional Protection Programmes; and the implementation of resettlement policies. Of particular and unquestionable importance is the role UNHCR has played in promoting best standards in refugee protection, and in assisting the reform of asylum systems across Europe (Hathaway 2005, Koch 2014, Weinar 2011). UNHCR is seen by the EU to be a leading partner in promoting the development of an asylum system throughout Europe. The EU, via dialogue with UNHCR, also attempts to promote some of its migration policies solutions globally, like the concept of mixed migration flows (van Hear et al. 2009). Even so, there is growing tension between the two organisations as regards solutions to the 2015 migration crisis in Europe (Ignatieff et al. 2016). Nonetheless, it is more than likely that the UNHCR will remain the EU’s key partner in supporting migration cooperation with Middle Eastern and African states. The IOM is a specialised global intergovernmental organisation.1 It is also the international organisation that has been the most controversial and most debated in recent European academic literature on migration. The IOM played an important role in Europe’s history, helping the IDPs in the post-­war period (Georgi 2010). It also supported a major overhaul of migration management policies and practices in the early 1990s in Eastern Europe. Its role in promoting migration policies on the continent grew gradually with the expansion of the EU’s migration agenda. The IOM had been the EU’s key partner in implementation since late 1990s, mostly due to the expansion of the Assisted Voluntary Return (AVR) programmes. IOM has been also involved in assisting post-­communist countries in the reform of their migration management 404

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systems, the management of centres dedicated to irregular migration, the promotion of labour migration standards and the fight against human trafficking. As the result of cooperation with the EU, over the last 30 years, IOM has gone from an organisation specialising in transport logistics and migration programmes for highly qualified personnel, to focusing on counter-­ trafficking, voluntary return and capacity-­building activities in broadly understood migration management (Fine 2017). Overall, current scholarship dealing with IOM has been anchored in the critical studies and thus, the IOM has primarily been criticised for its ambivalence as regards migrant rights, and notably compliance with the donor countries’ policies even when they undermine the human rights of migrants (Geiger and Pécoud 2009; Georgi 2010). The IOM is also viewed as a key actor in the migration knowledge market, as both knowledge producer, and provider of services based on that knowledge (Korneev 2017). In contrast to the UNHCR and IOM, the ICMPD is a pan-­European intergovernmental organisation geographically focused on Europe, though it has recently expanded activities to North Africa and the Middle East. It was created with the clear aim of strengthening the regulatory capacities of European states, and to push for the Europeanisation of migration policies (Georgi 2007). Its origin can be traced to a dialogue on asylum and irregular migration conducted by Western and Central European states under the auspices of the OSCE. The organisation developed in a unique way, by providing training and expertise to transforming states using knowledge from EU experts. It is said to have built up an unprecedented level of trust within the EU because it has been always perceived as a low-­profile service-­provider without an autonomous agenda. Hess (2010) argues that the appearance and development of the ICMPD indicates the growing role of non-­typical actors in international politics. These actors introduced new more ‘private’ forms of political practices. These types of practices are often attributed to the ‘European governance’ and the soft power tools EU uses in its relations with the outside world, also in migration domain (Martin-­Mazé 2015; Schumacher and Bouris 2017). In this sense the ICMPD has been viewed by its critics as a more sinister organisation, lacking a clear mandate on human rights, and strictly serving the interests of border management and the securitisation of migration by the EU (Weinar 2011). IOM and ICMPD are at the helm of several regional consultative processes (RCC) in Europe. These processes are clearly understudied. Only a handful of papers describe them in more detail, not really making any attempt to analyse or critique them. What we can learn from them is that Europe is the cradle of regional consultative processes in the field of migration (Thouez and Channac 2006). They are also problematic. RCCs are informal, but focus on cooperative dialogue and technical cooperation. Thus, according to Klekowski von Koppenfels (2001), the appearance of consultative processes attests to the importance that governments attach to a regional approach to migration management without however undertaking clear responsibilities and obligations that policy processes and dialogues at the formal international fora usually require. Arguably the most well-­known consultative process on migration was the Budapest Process, officially established in the wake of the 1993 CSCE (later OSCE) conference on preventing uncontrolled migration. Since its inception until the mid-­2000s, it focused on experience sharing with the countries of Central Europe. In later years, it became more of an instrument for the externalisation of EU migration polices, helping accession states to reform their migration management systems through a dialogue, and assistance projects (Geiger and Pécoud 2013). In 2003, the Budapest Process was re-­directed to focus on the CIS, and subsequently Central and Southeast Asia. Since 2003, the process has been relatively unique in this sense that is one of the few migration-­related pan-­European initiatives that also includes Russia. Other European 405

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RCCs include: the Eastern Partnership Panel on Migration and Asylum, and the Prague Process, created under the Czech EU Presidency in 2009. Scholars examining the role of these processes in the Europe-­wide diffusion of policy solutions and ideas found that they had at least two impacts on pan-­European migration cooperation. First, they allowed for the flow of ideas and actual material support from Western European states to Eastern ones (Georgi 2007; Geiger and Pécoud 2013; Weinar 2012). Second, their expansion has had unintended consequences: a number of overlapping initiatives (Hansen 2010; Weinar 2012).

Institutional developments in Eastern Europe One aspect of academic research on migrations is Europe is a clear division between Anglophone and Russophone literature. The linguistic division has never been really bridged and the dialogue gap persists. Consequently, the comparative research and analysis is almost inexistent. The literature dealing with the non-­EU cooperation on migration and mobility is rather descriptive and offers only a few points of analysis. The Russian Federation has created a major area of mobility and migration in the post-­Soviet area. To achieve this, it used a mix of the EU-­inspired solutions and its own distinctive policies while building the required institutional framework: first, the CIS in 1991 (Frejka 1996; Jaroszewicz and Szerepka 2007); then other political structures (e.g. EEU, see below). The 1994 CIS Charter stipulated that member states should cooperate in social and economic spheres, with the ultimate goal of creating common economic space based on the free movement of goods, capital and people. In 1994 CIS countries also signed up to a cooperation agreement on labour migration and the protection of migrant workers. With time the cooperation covered also irregular migration (1997) (Zayonchovskya 2004). However, the CIS impact on the creation of a common space of migration and mobility has been limited. Unlike in the EU, its loose forms of cooperation and the non-­binding nature of multilateral agreements favoured bilateral cooperation over common multilateral solutions (Mukomel 2005). Interference of the EU has been also a factor: the migration interests of CIS countries were becoming too diverse, with Moldova, Georgia and the Ukraine getting more involved in cooperation with the EU (see Reslow and Delcour this volume). Cooperation on migration and mobility reached new momentum within the framework of Eurasian Economic Community. Between 2000 and 2015 the Eurasian Economic Community was gradually developed between Russia, Belarus, Kazakhstan, Uzbekistan (participated only 2005–2008), Kyrgyzstan and Tajikistan. What is interesting is that the participating states have emulated the EU solutions focusing on four freedoms: mobility of capital, goods, services and people (Jaroszewicz and Szerepka 2007). At the same time, Russia, Kazakhstan and Belarus entered in a Customs Union and in 2010 agreed to a freedom of movement (EU-­style) between the three counties (Rayazancev and Korneev 2013). The agreement was revolutionary, in the sense that for the first time, citizens of the partnering states received preferential treatment in their labour markets; e.g. they did not need to obtain so-­called ‘patents’ and were not limited by foreign labour force quotas (IOM 2016). That openness can be perceived as the vital sign of the Eurasian integration; arguably the most viable form of all regional integration initiatives in the post-­Soviet space (Dragneva and Wolczuk 2012). Indeed, in 2015 the Eurasian Economic Community and Eurasian Customs Union were transformed into one EEU, providing freedom of movement to all citizens of the member states. This political and economic creature has not been yet well analysed. However, Popescu (2014) brings attention to the inherent tension within the EEU: the states participating in this project are at the same time closely linked to Russia economically but also busy hedging against Russia. Such a tension, inexistent in the EU, 406

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should have an impact on migration cooperation within the EEU. Unfortunately, thorough comparative analysis of the EU and EEU regimes of internal mobility are so far lacking. The analysis of EU/EEU external migration policies are also inexistent.

Conclusions: modern West-­East migration policies Scholars underscore that, in practice, international migration management in the European context should chiefly be defined as a virtual normative phenomenon. Pan-­European institutions and their work on common European standards in migration policy did not lead to the ratification of important international conventions pertaining to migration. On the contrary, over time legal instruments have become less popular. Pan-­European concepts pursued by the CoE and the OSCE in Europe lost momentum in the mid-­1990s, as the growing strength of the EU as a normative power to externalise its migration policies has weakened pan-­European initiatives. The EU’s member states and associated international organisations have been involved in many regional and bilateral processes with non-­EU actors, making the EU the major norm-­ setter in this policy domain on the continent. International organisations such as the CoE, OSCE, IOM and ICMPD are sometimes accused of serving the interests of West European countries with hidden or opaque agendas that do not seek to balance the interest of migrants’ countries of origin. On the other hand, projects implemented by those organisations utilising the non-­binding, informal nature of regional consultative processes added value in the form of expanding migration dialogue and sharing best practices. At the other end of the continent, in recent years we have witnessed an attempt by Russia to revitalise integration projects in the post-­Soviet space through their flagship EEU. The project is grounded in the very EU-­like idea of a single space of mobility comprising the majority of post-­Soviet countries. The project is still quite new and the ongoing geopolitical tensions over Ukraine currently limit its full potential: still, we can expect that in the near future we will see an emerging EEU external migration policy as a direct consequence of the internal open borders. This prospect opens new avenues for comparative research on pan-­European cooperation on migration and mobility. Since such research is scarce already, there is a lot of ground to be covered: the role of the CoE and the OSCE, RCCs and international organisations all need further investigation. In addition, the development of the Russia-­centred EEU and its gradual metamorphosis into a supranational international organisation such as the EU can facilitate comparative work, closing the important literature gap.

Note 1 Since 2017, it is also a member of the United Nations system, and its status changed from an organisation outside of the UN system to an UN organisation. Information in the chapter reflects the research on IOM before it changed its status.

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Marta Jaroszewicz Council of Europe (1991) Conclusions of CoE Conference of Ministers on the Movement of Persons from Central and Eastern European Countries held in Vienna in January 1991. Council of Europe (1993) Conclusions of Forth Ministerial Conference ‘Young People in Greater Europe’, 13–15 April, Vienna. Council of Europe (1998) Conclusions of Forth Ministerial Conference ‘Active Citizens in a Future Europe. Human-­Rights Participation-­Solidarity’, Bucharest, 27–29 April 1998. Dragneva R., Wolczuk K. (2012) Russia, The Eurasian Customs Union and the EU: Cooperation, Stagnation or Rivalry, Chatham House Briefing Paper REP BP 2012/01. Emmerson M. (2008) The Struggle for a Civilised Wider European Order: Elements for European Security Strategy, CEPS Policy Briefs, October 2008. Faist T., Ette A. (eds) (2007) The Europeanisation of National Policies and Politics of Immigration. Between Autonomy and European Union, Basingstoke, Palgrave Macmillan. Favell A. (2008) The new face of East–West migration in Europe. Journal of Ethnic and Migration Studies, Vol. 34, Issue 5, pp. 701–716. Fine S. (2017) Liaisons, labelling and laws: International Organisation for Migration bordercratic interventions in Turkey. Journal of Ethnic and Migration Studies, ahead of print, 29 August 2017. Available at: https://doi.org/10.1080/1369183X.2017.1354073. pp. 1–13. Frejka T. (1996) International Migration in Central and Eastern Europe and the Commonwealth of Independent States, New York, United Nations. Geiger M. (2013) The transformation of migration politics. In Disciplining the Transnational Mobility of People (pp. 15–40), Basingstoke, Palgrave Macmillan. Geiger M., Pecoud A. (eds) (2009) The Politics of International Migration Management, Basingstoke, Palgrave Macmillan. Georgi F. (2007) Migrations management in Europa. Eine kritische Studie am Beispiel des Centers for Migration Policy Development, Saarbrücken, VDN-­Verlag. Georgi F. (2010) ‘For the benefit of some: The International Organisation for Migration and its global migration management. In Geiger M., Pecoud A. (eds) The Politics of International Migration Management, Basingstoke, Palgrave Macmillan. Hansen R. (2010) An Assessment of Principal Regional Consultative Processes on Migration, Geneva, International Organisation for Migration. Hathaway J. (2005) The Rights of Refugees in International Law, Cambridge, Cambridge University Press. Hear van N., Brubaker R., Bessa Th. (2009) Managing Mobility for Human Development. The Growing Salience of Mixed Migration, New York, United Nations Human Development Reports. Hess S. (2010) ‘We’re facilitating states! An ethnographic analysis of the ICMPD’. In Geiger M., Pecoud A. (eds) The Politics of International Migration Management, Basingstoke, Palgrave Macmillan. Hix S., Niessen J. (1996) Reconsidering European Migration Policies: the 1996 Intergovernmental Conference and Reform of the Maastricht Treaty, Brussels, Migration Policy Group/Churches Commission for Migrants in Europe/Starting Line Group. Honekopp E. (1991) Migratory Movements from Countries of Central and Eastern Europe: Causes, Characteristics, Present Situation and Possible Future Trends – the Cases of Germany and Austria, paper presented at CoE Ministerial Conference on the Movement of Persons coming from Central and Eastern European countries, Vienna, 24–25 January 1991. International Organisation for Migration (2016) Migrant Vulnerabilities and Integration Needs in Central Asia: Root Causes, Social and Economic Impact of Return Migration. Regional Field Assessment in Central Asia 2016. Ignatieff M., Keeley J., Ribble B., McCammon K. (2016) The United States and the European Refugee Crisis: Standing with Allies. HKS Working Paper, No. 16–020. Ivakhnyuk I. V. (2006) Migration in the CIS Region: Common Problems and Mutual Benefits, paper presented at the International Symposium on International Migration and Development, United National Population Division. Ivakhnyuk I. V. (2008) Emergence and Functioning of the Eurasian Migration System. Abstract of the Doctor of Economy dissertation (08.00.05 – Economics and National Economy Management), Moscow, Lomonosov Moscow State University [in Russian]. Jaroszewicz M., Szerepka L. (2007) Migration Challenges in the European Union Eastern Partnership, Warsaw, Centre for Eastern Studies. Kaim M., Maull H., Westphal K. (2015) The Pan-­European Order at the Crossroads: Three Principles for a New Beginning, Berlin, German Institute for International and Security Studies Comments, March 2015.

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32 The EU’s visa liberalisation policy What kind of transformative power in neighbouring regions? Laure Delcour Introduction Over the past two decades, the European Union (EU)’s common visa policy has emerged as a major instrument to regulate the entry of non-­EU visitors into the territory of the EU. The EU’s visa policy includes common lists of countries whose citizens are required to hold a visa when travelling to the Schengen area and countries whose citizens are exempted from this requirement (Council of the European Union, 2001). It also sets out a common format and common procedures for issuing short-­term visas, including a common sticker (Council of the European Union, 1995, 2002; European Parliament and Council of the European Union, 2009). In recent years, visa liberalisation (in other words, the EU’s decision to remove a country from the ‘black’ list, thereby lifting the obligation of Schengen visa for its nationals) has become a cornerstone of the EU’s policies in adjacent countries – whether the Western Balkans, Eastern Partnership (EaP)1 countries, the Russian Federation or Turkey. This increasing importance of visa policy in the EU’s external relations is due to two intertwined factors. First, a visa-­free regime with the EU is a strong expectation of the partner countries, be it at the political or societal level. For Western Balkans, Eastern European and South Caucasus countries in particular, a visa-­free regime with the EU is both a hallmark of their close relationship with the Union and a strong expectation of their citizens. Second, in the absence of a membership perspective (be it the result of the EU’s limited absorption capacities or of partner countries’ lack of interest), the elimination of the Schengen visa obligation appears as the most tangible incentive that the EU can offer to the partner countries. While in the 1990s-early 2000s the EU’s visa policy for Central and Eastern European candidate countries developed as an ad hoc process, over the past decade the EU has gradually designed a policy framework for visa liberalisation in neighbouring countries and regions. This framework codifies the processes through which, and the conditions under which, the EU decides to lift the obligation of Schengen visas. It highlights both an increased reliance upon conditionality and a significant expansion of the scope of EU requirements as compared to the toolbox used for visa liberalisation in the 1990s. This chapter analyses the evolution of the EU’s visa policy towards candidate and neighbouring countries through the prism of the academic literature. It examines how scholarly research 410

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has accounted for the instruments and outcomes of the EU’s visa policy. Given the diffusion of the EU’s visa liberalisation framework from candidate to neighbouring countries, much of the literature originates from the analysis of the EU’s external governance (Lavenex, 2004). This research has predominantly focused on the mechanisms used by the EU to promote domestic change beyond its borders and their effectiveness. Another strand of literature, inspired by the conceptualisation of the EU as a normative power (Manners, 2002), has examined the rationale behind the EU’s framework for visa liberalisation. In particular, it has looked at the balance between interests and values in the EU’s policy. This chapter gauges the key arguments and findings of the academic literature against the implementation of the EU’s visa liberalisation framework, focusing on Eastern Partnership countries. The chapter starts by examining the rationale behind the expansion of norms diffused by the EU as part of its visa liberalisation framework. It asks whether (as argued in the external governance literature) visa policy has served as a driver of democratic reforms in the partner countries or whether it has rather promoted the EU’s security interests. The chapter then scrutinises EU policy mechanisms for visa liberalisation and points to an increasing use of policy-­specific conditionality as a substitute to enlargement conditionality. Finally, based upon the case of Eastern Partnership countries, the chapter examines the extent to which the EU has been able to promote domestic change through its visa liberalisation offer.

Towards an all-­encompassing policy: visa liberalisation as a driver of reforms and democratisation? In the 1990s, the EU’s initial visa policy was both tightly interwoven with its enlargement process and limited in terms of the scope of norms diffused. While Central and Eastern European candidate countries had to accept the full Schengen acquis, this acquis was then nascent and hence restricted. Importantly, the visa liberalisation process that the EU has gradually set up since the early 2000s highlights significant shifts in, and in fact a major expansion of, the reforms required from the partner countries before the EU can agree to a visa-­free regime. What has prompted the expansion of EU requirements over the past 15 years and what kind of norms do the EU diffuse as part of its visa policy? The literature has shown that the EU’s external migration policy is driven by two different – and potentially conflicting (Leonard, 2009) – agendas: a security agenda, geared towards protecting the EU from potential threats, and a value-­based agenda, reflecting the EU’s distinctiveness in the international arena as a normative actor (Manners, 2002). Focusing on the values-­security nexus in the EU’s neighbourhood, scholars contend that the EU’s action is fraught with contradictions deriving from competing (normative and security) objectives, which undermine the EU’s credibility in the region (Bosse, 2009). What objective has prevailed in the EU’s visa policy vis-­à-vis candidate and neighbouring countries? Has the EU sought to promote democratic principles and human rights, thereby fostering democratisation in the partner countries? Or has it prioritised security-­related standards, in line with its own interests? For those scholars inspired by the external governance approach, EU demands in the area of external migration entail the transfer of democratic governance provisions into domestic legislation, thus indirectly encouraging democratic developments (Freyburg et al., 2011). While mostly originating in international conventions (Hernández i Sagrera and Korneev, 2012), the conditions spelt out by the EU as part of the visa liberalisation framework reflect ‘a human rights-­oriented approach (…), largely resting on democratic governance provisions’ (Freyburg et al., 2011: 1036). As part of the visa liberalisation process with candidate countries in the late 1990s, the EU only formulated broad conditions pertaining to the effective functioning of the 411

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rule of law and judicial institutions. However, these demands were both specified and expanded throughout the 2000s. The EU visa liberalisation framework with Eastern Partnership countries (structured around four blocks of conditions)2 includes a broad set of demands related to human rights and the rule of law, including procedures for asylum, the protection of personal data, the fight against corruption and anti-­discrimination. For instance, partner countries are required to adopt ethical codes and to conduct training programmes on anti-­corruption for officials dealing with passports, and on respect for human rights and asylum procedures for border guards and customs officers. The EU also demands that partner countries consolidate their legal and institutional framework for asylum policy, including subsidiary protection and effective access to fair procedures for status determination, as well as rights protection. Moreover, in recent years the EU has strengthened the monitoring of conditions related to human rights. For instance, the fourth block of the visa liberalisation framework (which includes the major EU demands related to fundamental rights) was not included in the assessment missions conducted in the Western Balkans (Trauner and Manigrassi, 2014). However, this changed starting with Kosovo. Block 4 is also included in the assessment missions conducted in Eastern Partnership countries. The greater emphasis placed on block 4 reflects the Commission’s enhanced efforts to reduce discrimination against marginalised groups (Trauner and Manigrassi, 2014). This increased attention to fundamental rights suggests that the EU has channelled the diffusion of democratic principles through its visa policy. Moreover, through developing functional cooperation visa policy indirectly contributes to promoting democratic governance (Lavenex and Schimmelfennig, 2011: 896) in Eastern Partnership and Western Balkan countries. Democratic sectoral governance refers to ‘the incorporation of democratic principles into administrative rules and practices even within a non-­democratic polity’ (Freyburg et al., 2011: 1028). Freyburg et al. (2011) identify three dimensions of democratic governance: transparency, accountability and participation. All three dimensions are indirectly emphasised in the Visa Liberalisation Action Plans (VLAPs) with Eastern Partnership countries. For instance, the benchmarks for reform implementation3 and the clarification of institutional competences (as well as the institutional reforms) requested by the EU as part of the VLAPs foster accountability. The EU also promotes transparency, for instance on party financing, as part of the fight against corruption. Likewise, it encourages the participation of non-­ governmental organisations (NGOs) in the policy process,4 e.g. by favouring the presentation of draft laws to, and discussion with NGOs.5 However, the literature has also demonstrated that the EU’s key concern in cooperation with neighbouring countries is to ‘protect [its] internal security from outside threats’ (Wolff, Mounier and Wichmann, 2009: 12). As a consequence, security-­related requirements have largely prevailed in the EU’s visa policy vis-­à-vis neighbouring regions. Closer scrutiny of the VLAPs with Eastern Partnership countries, for instance, highlights the predominance of measures meant to ensure that the mobility offered to neighbours takes place ‘in a secure environment’ (European Commission, 2008). These EU demands include an effective implementation of readmission agreements concluded with the EU, the issuance of biometric travel documents, the adoption and enactment of a legal framework complying with EU standards on migration policy and border management, as well as the establishment of high-­standards border management procedures at partner countries’ external borders. Overall, the EU’s external migration and visa policy ‘has emphasised migration control measures despite attempts to stress preventive elements in the EU’s global approach to migration’ (Wunderlich, 2012: 1421). In fact, the provisions related to migration under EU-­neighbours visa agreements and policy documents ‘externalise migration control functions’ and reflect ‘an extension of the EU migration regime outside of the Union’ (Lavenex and Uçarer, 2002: 216) As a result, the EU’s wider neighbourhood has clearly 412

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emerged as a buffer zone playing a crucial role in keeping irregular migrants outside the EU’s borders. Neighbouring countries act both as a filter and as a dumping ground to which EU member states extradite irregular migrants who have crossed the EU’s borders (Delcour, 2013). In addition to prioritising security-­related measures, when monitoring the application of the readmission agreements, VLAPs and roadmaps, scholars have demonstrated that the EU has given preference to security and sidelined values (Trauner, Kruse and Zielinger, 2013). Therefore, in the practice of EU visa policy conditions related to security outweigh by far the provisions introducing human rights norms which, as denounced by the European Parliament in the case of Russia (European Parliament, 2007), are neither comprehensive nor precise enough to induce substantial progress in partner countries. Admittedly, it is extremely complex to disentangle security and normative objectives, which are often interwoven in practice (Noutcheva, Pomorska and Bosse, 2013). In fact, in the visa liberalisation framework the EU has used provisions related to democratic governance and the rule of law instrumentally (Burlyuk, 2014: 41), as a means to achieve other ends – in this case, to ensure the protection and effective management of the EU’s external borders and, beyond them, of partner countries’ borders with their own neighbours, which (for some of them) are regarded in Brussels as sources of irregular migration.

Policy-­specific conditionality and gate-­keeping as substitutes to enlargement conditionality? Like accession policy, the EU’s visa policy (and more broadly justice and home affairs) operates through dynamics of inclusion and exclusion, whereby compliance with the standards diffused by the EU (whether its own or not) is seen as a prerequisite to inclusion while non-­compliance generates exclusion (Monar, 2000: 12). Visa liberalisation has thus emerged as a key leverage for the EU to influence domestic change in those countries seeking a closer relationship with the Union, whether candidate or neighbouring countries. Therefore, other strands of literature have paid specific attention to the policy mechanisms designed by the EU to eliminate the obligation of Schengen visas for the Western Balkans and Eastern Partnership countries. Such a focus is premised on the assumption that policy instruments ‘are not neutral devices: they produce specific effects, independently of the objective pursued’, and therefore ‘structure public policy according to their own logic’ (Lascoumes and Le Galès, 2007: 4). In the case of visa liberalisation, closer scrutiny of the evolution of the EU’s toolbox since the end of the 1990s highlights an increasing reliance upon conditionality, monitoring and gate-­keeping. As argued in the literature, these instruments are meant to ensure the adoption of EU-­demanded soft law and standards in policy areas with limited acquis, thereby strengthening the EU’s leverage over the partner countries. While conditionality and monitoring were present from the outset of the EU’s visa policy, EU requirements and benchmarks measuring progress towards visa liberalisation were not formalised in any policy document. At the end of the 1990s, prior to joining the EU, Central and Eastern European countries had to accept both the full Schengen acquis and subsequent measures taken by the institutions within its scope.6 This obligation implied major legal, policy and administrative reforms on the part of candidate countries at a time when the Schengen acquis was rapidly expanding. At a time when frontier controls came to be seen as Europe’s first line of defence against external threats (Grabbe, 2000: 3), the EU’s emphasis on compliance with the acquis was primarily meant to address the growing security concerns within the EU over the applicants’ ability to protect the Schengen area from external threats (such as organised crime or 413

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irregular migration flows through their territories). In practice, these concerns triggered the definition of specific EU conditions as well as a tighter monitoring of their application by candidate countries. Alongside with general conditions pertaining to the effective functioning of the rule of law and judicial institutions, the EU introduced requirements focusing on border controls and the fight against irregular migration (Grabbe, 2000: 13). In addition, EU security concerns also prompted an increased attention to enforcement of the acquis, as reflected in the creation of specific monitoring mechanisms such as the Collective Evaluation Group, responsible for assessing the implementation of the Schengen acquis in candidate countries (Monar, 2000: 18). The increased focus on implementation eventually resulted in a differentiation between candidate countries (with visa requirements being lifted in 1999 for all applicants except Bulgaria and Romania, whose citizens needed a visa until the early 2000s) and in a disjuncture between accession to the EU and to the Schengen area, as accession to the Schengen area was delayed for those countries failing to enact the Schengen acquis. Conditionality was then substantially reinforced in the visa liberalisation process set up for the Western Balkans in the 2000s. Given the reported number of overstays beyond the maximum duration of 90 days, the experience of EU visa liberalisation with Romania and Bulgaria reinforced EU member states’ security concerns (Trauner, 2007: 15), and therefore their reluctance to offer a visa-­free regime to other countries. This prompted the EU to design a ‘phased strategy’ (Trauner, 2008) with a view to strictly monitoring the access of Western Balkan countries to subsequent stages of the visa liberalisation process. This framework was then replicated with Eastern Partnership countries and Turkey. As part of the visa liberalisation framework, partner countries are first expected to sign visa facilitation and readmission agreements with the EU. As a result of a successful linkage first operated by Russia when negotiating with the EU and then replicated with Western Balkans and Eastern Partnership countries, in the EU’s policy toolbox readmission agreements are combined with visa facilitation schemes (Trauner and Kruse, 2008: 11). EU incentives offered under visa facilitation agreements include simplified procedures and shorter delays for obtaining EU visas, reduced visa fees for short-­stay visas (€35 instead of €60), as well as simplified criteria for multiple-­entry visas for certain categories of persons. Readmission agreements are the key policy tool to curb irregular migration originating from, or transiting through, partner countries (Trauner and Kruse, 2008). They set out clear obligations and procedures for the authorities of partner countries as to when and how to take back people who are illegally residing in EU territory, be they citizens of their country, third country nationals or stateless persons. An effective implementation of the readmission agreement is a prerequisite to further progress towards visa liberalisation. The next steps of the visa liberalisation process involve the launch of a visa dialogue with a view to determining the conditions to be fulfilled to have the Schengen visa requirement lifted. These conditions are spelt out in a Roadmap handed over by the European Commission. The EU monitors the fulfilment of benchmarks included in the roadmaps in all four blocks of conditions through evaluation missions. These missions involve experts from EU member states accompanied by officials of the Commission services and the External Action Service. The decision to introduce a visa-­free regime should then be made by the Council and the European Parliament, based upon a recommendation of the European Commission. The EU granted visa­free travel to the Schengen area to citizens of the Former Yugoslav Republic of Macedonia (FYROM), Montenegro and Serbia in December 2009, and Albania as well as Bosnia and Herzegovina in November 2010. In May 2016, the European Commission recommended that the Schengen visa obligation be lifted for citizens of Kosovo. While the visa liberalisation scheme designed for the Western Balkans then served as a template for other countries and regions (e.g. Turkey, Eastern Europe and the South Caucasus), 414

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conditionality was again strengthened for Eastern Partnership countries. Under the Eastern Partnership, the EU identifies the requirements that need to be achieved by the partner countries in a specific document, the VLAP. VLAPs are divided into two phases: an adoption phase, during which partner countries have to approximate their legal framework with the EU’s requirements and an implementation phase which requires approximated legislation to be properly enforced. Accession to the second phase of the VLAP is then conditional upon a positive assessment of the benchmarks identified for the first phase by the European Commission. Therefore, the distinction between an adoption and an implementation phase only reinforces the EU’s control over the visa liberalisation process, as it introduces additional steps requiring both EU monitoring and approval of reforms introduced by the partner countries. In line with this framework, despite the concerns voiced by some EU member states which were reluctant to offer a visa-­free regime to additional countries,7 the EU considered that Moldova had fulfilled all benchmarks for visa liberalisation and therefore lifted Schengen visa requirements for Moldovan citizens in April 2014. However, prior to granting a visa-­free regime to other Eastern Partnership countries, the EU introduced new policy mechanisms meant to enhance its control over the post-­compliance phase. The example of Georgia offers an illustration of how EU member states have tightened their grip over the visa liberalisation decision-­making process. On 9 March 2016, considering that the country had met all benchmarks in all four blocks of conditions, the European Commission recommended lifting the visa obligation for Georgian citizens holding a biometric passport. However, the process was marred because of the resistance of some EU member states (in this case, Germany,8 backed by France and Italy), fuelled by the refugee crisis and the general environment around migration in the EU. The Council of ministers therefore demanded the introduction of a suspension mechanism (allowing the temporary suspension of the visa-­free regime in the event of abuse or breaches to the conditions set by the EU) prior to granting visa liberalisation. However, this demand triggered disagreements with the European Parliament, which co-­decides with the Council yet holds more liberal views on visa-­free travel with neighbouring countries. The member states and the Parliament finally agreed on the simultaneous entry into force of both mechanisms on 13 December 2016, which paved the way for the decision to lift the obligation of Schengen requirements for Georgian citizens in March 2017. A similar process took place with Ukraine, whose citizens have been exempted from Schengen visas as of June 2017. Overall, the EU’s policy instruments for visa liberalisation draw heavily on the enlargement toolbox designed in the 1990s for Central and Eastern European countries. Gate-­keeping, in particular, was identified as the EU’s ‘most powerful conditionality tool’ during the enlargement process (Grabbe, 2003: 316). However, as pointed out in the literature, the context in which visa liberalisation unfolds is drastically different. Even though in the early 2000s the Western Balkans were granted the status of candidate or potential candidate countries, the credibility of the EU’s membership promise seemed much more uncertain, and the time horizon for accession much more remote, than during the previous rounds of enlargement (Trauner, 2007: 12). In the case of Eastern Partnership countries, no membership perspective is offered despite the strong expectations voiced by Georgia, Moldova and Ukraine. Therefore, in a context in which visa policy (instead of accession) appears as the main potential driver of inclusion and integration with the EU, visa-­specific conditionality and gate-­keeping serve as substitutes to the EU’s accession conditionality.

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The EU’s influence on domestic change: achievements and limitations of the EU’s visa policy in Eastern Partnership countries As the chapter has argued, in a context where EU accession is (at best) a remote prospect, the EU has increasingly used visa policy as a chief instrument to diffuse a broad set of norms and thereby exert influence on domestic change in the partner countries. However, closer scrutiny of reforms undertaken by Eastern Partnership countries reveals a selective implementation of EU demands. In both Armenia and Moldova (two countries facing major emigration flows since the collapse of the USSR), the authorities embraced the EU’s demands for a tighter regulation of migration and a more effective management of population data (Ademmer and Delcour, 2016; Delcour, 2017). This is also because the adoption of EU-­compliant standards (even if only symbolically) also confers legitimacy on EaP countries’ governments (Makaryan and Chobanyan, 2014). However, in both countries EU requirements related to the fight against corruption and anti-­discrimination emerged as examples of low resonance of EU norms and non-­compliance with EU demands. For instance, Moldova belatedly complied with EU requirements related to the fight against corruption, as these went against the vested interests of oligarchs linked to the ruling elite. Despite the adoption of a National Anti-­Corruption Strategy in 2011, the implementation of many measures of the related Action Plan was delayed. In addition, some areas emerged as persisting causes for concerns, such as public procurement or lenience in cases of high-­level corruption (Ademmer and Delcour, 2016; Delcour, 2017). Likewise, in Ukraine reforms have been conducted only selectively prior to 2014. While substantial reforms were launched to comply with EU requirements on migration and border management (the second block of the visa liberalisation process), the country has been slow in meeting EU demands on biometric passports, anti-­discrimination and anti-­corruption. This resulted from the contestation of domestic veto players, inter-­institutional struggles, vested interests and rent-­seeking practices. In addition, in all Eastern Partnership countries the adoption of a law on anti-­ discrimination in line with EU requirements stumbled against a strong societal reluctance to specifically combat discrimination on the basis of sexual orientation. In all countries, Churches strongly mobilised against the law and media campaigns (allegedly organised with Russian support) harshly criticised the EU’s attempts to promote values that go against Eastern Partnership countries’ traditions. While (as a result of the EU’s strict conditionality) anti-­discrimination laws were adopted in Georgia, Moldova and Ukraine,9 their effective implementation remains to be ascertained. Yet nowhere has the EU’s approach to visa liberalisation been so openly questioned as in Georgia. This is due to the sharp dissonance between EU requirements and the Georgian governmental preferences in the migration area during the Saakashvili presidency. While visa liberalisation has long been a declared priority for Georgia, the then Georgian authorities fiercely resisted the adoption of norms regulating the entry and residence of foreigners in the country. This is because the government’s approach to migration was underpinned by a very liberal approach to economic reforms and the absence of state intervention. Migration was considered a pillar of the authorities’ economic strategy, which primarily sought to attract foreign investment. In this context, an open-­ door policy was considered a prerequisite to creating a favourable business environment. If anything, the fact that the new authorities finally maintained this policy shows how deeply entrenched the liberal approach to migration is in Georgia (Ademmer and Delcour, 2016). Therefore, despite strong expectations regarding a visa-­free regime the implementation of EU requirements is highly sensitive to governmental and societal preferences and the interpenetration of economic and political interests in Eastern Partnership countries. 416

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Conclusions This chapter has shed light on the gradual construction of an EU policy framework for visa liberalisation. As highlighted in the literature this framework is fraught with a series of tensions. In the absence (or, at best, the remoteness) of a membership perspective for countries targeted by its visa liberalisation policy, the EU has used policy-­specific conditionality as a leverage to foster reforms in the partner countries. It has also tightened its monitoring of reforms conducted by the partner countries as a consequence of lesson-­drawing processes in other regions (for instance, as a result of lessons learnt in the Western Balkans for Eastern Partnership countries). This enhanced EU control over the visa liberalisation process is closely intertwined with the broader migration context in and around the EU. Increased migration pressure (in particular, the surge in asylum requests resulting from the war in Syria) has strengthened EU member states’ sensitivity to any measure facilitating the movement of people, thereby resulting in a prioritisation of migration control demands in the visa liberalisation process. Nevertheless, the EU’s visa policy remains a powerful transformative instrument. This is due to the fact that it represents the most tangible incentive that the EU can offer, in particular to its Eastern neighbours. However, both the nature and scope of the transformations brought about by EU visa policy deserve further investigation. First, the extent to which EU visa liberalisation process actually fosters democratic governance and the degree to which these principles are effectively embedded in the practice of decision-­making need to be further ascertained. Second, little is known about the societal impact of EU visa policy in terms of changing perceptions, beliefs and practices within the partner countries. In particular, the issue of social remittances deserves to be further explored. Third, the transnational and transregional implications of the EU’s visa policy (for instance, their effects on the links between the partner countries and their neighbours) call for further investigation. Additional research is especially needed as the EU’s visa policy is in a state of flux and evolves in response to its application by the partner countries and the changing context of migration.

Notes 1 The Eastern Partnership was launched in 2009. It includes Armenia, Azerbaijan, Belarus, Georgia, Moldova and Ukraine. 2 The four blocks are: (1) Document security, including biometrics; (2) Integrated border management, migration, asylum; (3) Public order and security; (4) External relations and fundamental rights. Each block spells out a series of benchmarks that should be met by the partner countries before the Schengen visa obligation can be lifted. These conditions apply both to the adoption of policy and legal templates and to their effective implementation. 3 These benchmarks are part of the various Action Plans in those areas covered by the VLAPs, e.g. for fighting corruption and organised crime, or for preventing traffics of human beings. 4 Cf. ‘Some of the provisions relating to the equality body to be established should be further consolidated in order to allow third-­party interventions, i.e. give civil rights groups and NGOs to the right to appear before the body on behalf or in support of individual victims of discrimination’ (European Commission/High Representative, 2012: 25). 5 Author’s interviews, Civil Registry Agency, Tbilisi, March 2013; Ministry of Foreign Affairs, Chisinau, May 2012 and May 2014. 6 Article 8, Protocol integrating the Schengen acquis into the framework of the European Union, Treaty on the European Union (1997) OJ C224. 7 This also came as a result of the rise in asylum applications lodged by citizens from the Western Balkans in some EU member states in the wake of the visa liberalisation process. 8 Germany’s move was reportedly triggered by an increase in the activities of Georgian criminal groups on its territory.

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Laure Delcour 9 Armenia, Azerbaijan and Belarus will only be required to adopt a comprehensive anti-­discrimination legislation (including discrimination against sexual minorities) as part of the visa liberalisation process that has not yet started.

References Ademmer, Esther, Delcour, Laure (2016). With a little help from Russia? The European Union and visa liberalization with post-­Soviet states. Eurasian Geography and Economics, (57)1, 89–112. Bosse, Giselle (2009). Challenges for EU governance through Neighbourhood Policy and Eastern Partnership: The values/security nexus in EU–Belarus relations. Contemporary Politics, 15(2), 215–227. Burlyuk, Olga (2014). An ambitious failure: Conceptualising the EU approach to Rule of Law Promotion (in Ukraine), Hague Journal on the Rule of Law, 6(1), 26–46. Council of the European Union (1995). Council Regulation (EC) No 1683/95 of 29 May 1995 laying down a uniform format for visas, OJ L 164, Brussels, 14 July 1995. Council of the European Union (2001). Regulation 539–2001 of 15 March 2001 listing the third countries whose nationals must be in possession of visas when crossing the external borders and whose national are exempt from that requirement, OJ L 81/1, Brussels, 21 March 2001. Council of the European Union (2002). Council Regulation (EC) No 333/2002 of 18 February 2002 on a uniform format for forms for affixing the visa issued by Member States to persons holding travel documents not recognised by the Member State drawing up the form. OJ L 53, Brussels, 23 February 2002. Delcour, Laure (2013). ‘The European Union: Shaping Migration Patterns in the Neighbourhood … and Beyond?’, in F. Amtenbrink, D. Kochenov, European Union’s Shaping of the Legal International Order. Cambridge: Cambridge University Press, 261–281. Delcour, Laure (2017). The EU and Russia in Their ‘Contested Neighbourhood’. Multiple External Influences, Policy Transfer and Domestic Change. London: Routledge. European Commission (2008). Eastern Partnership. COM(2008) 823 final, Brussels, 3 December. European Commission/High Representative of the Union for Foreign Affairs and Security Policy (2012). Second progress report on the implementation by the Republic of Moldova of the Action Plan on Visa Liberalisation, SWD (2012) 12 final. European Parliament, Committee on Civil Liberties, Justice and Home Affairs (2007). Report on the proposal for a Council decision concerning the conclusion of the Agreement between the European Community and the Russian Federation on readmission (COM(2006)0191 – C6–0168/2006–2006/0064(CNS)). European Parliament and Council of the European Union (2009). Regulation (EC) No 810/2009 of the European Parliament and of the Council of 13 July 2009 establishing a Community Code on Visas (Visa Code). OJ L 243, Brussels, 15 September 2009. Freyburg, Tina, Lavenex, Sandra, Schimmelfennig, Frank, Wetzel, Anne (2011). Democracy promotion through functional cooperation? The case of the European Neighbourhood Policy, Democratization, 18(4), 1026–1054. Grabbe, Heather (2000). The sharp edges of Europe: security implications of extending EU border policies eastwards, Institute for Security Studies Western European Union, Occasional Paper 13. Grabbe, Heather (2003). ‘Europeanization Goes East: Power and Uncertainty in the EU Accession Process’, in K. Featherstone, C. Radaelli (eds), The Politics of Europeanization, Oxford: Oxford University Press, 303–327. Hernández i Sagrera, Raül, Korneev, Oleg (2012). Bringing EU migration cooperation to the Eastern neighbourhood: Convergence beyond the acquis communautaire?, RSCAS Working Papers, 12/22. Lascoumes, Pierre, Le Galès, Patrick. (2007). Understanding public policy through Its instruments – from the nature of instruments to the sociology of public policy instrumentation’, Governance, 20(1), pp. 1–21. Lavenex, Sandra (2004). EU external governance in ‘wider Europe’, Journal of European Public Policy, 11(4), pp. 680–700. Lavenex, Sandra, Schimmelfennig, Frank (2011). EU democracy promotion in the neighbourhood: From leverage to governance?, Democratization, 18(4), 885–909. Lavenex, Sandra, Uçarer, Emek (eds) (2002). Migration and the Externalities of European Integration, Lanham: Lexington Books. Leonard, Sarah (2009). ‘ “Values vs. Security?” A Human Security Perspective on the ENP’, in T. Balzacq (ed.), The External Dimension of Justice and Home Affairs. Governance, Neighbours, Security, London, Palgrave Macmillan, 229–248.

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33 The evolution of governance and financing of migration and development policy and politics in Europe Marieke van Houte

Introduction Since the turn of the century, European states (both migrant-­sending and -receiving), as well as the diverse institutions of the European Union (EU), have come to see mobility and migration as interrelated with development. Key words are remittances, diaspora, transnational engagement and return- and circular migration. Yet, despite the wide use of these general concepts, the migration-­and-development (M&D) nexus remains under-­defined, is interpreted differently by different stakeholders from sending and receiving perspectives, and is constantly evolving (Keijzer, Heraud and Frankenhaeuser 2016). In this chapter, I will argue that M&D policies, defined as ‘the particular area of (…) policymaking which is concerned with inter-­linkages between migration and development’ (Keijzer, Heraud and Frankenhaeuser 2016) serve three different priorities, specifically: (1) to promote international development, (2) defend domestic security and welfare, and (3) manage, control and regulate migration (Carling 2002; Duffield 2006; Skeldon 2008; Raghuram 2009; De Haas 2010). Efforts by European states and EU institutions to manage M&D goals have from the turn of the century led to the formulation of M&D policies and the spending of Official Development Assistance (ODA) budgets on migration-­related issues. Yet, the contradictions that emerge between enabling policies to foster M&D and constraining policies of migration management in practice cause ambivalent attitudes of states towards their migrants (Bakewell 2008; ØstergaardNielsen 2010). Moreover, as this chapter will show, the EU has played a dominant role in this discourse, affecting both EU member states and European states outside of the EU. This notwithstanding, large divergences in perspectives on these policy priorities exist between Western and Eastern European countries, which largely coincides with differences among migrant-­ receiving and -sending perspectives. This chapter first elaborates on how the discourse on M&D emerged, and how it attracted political interest and found its way into different European policies. Then, it moves on to analyse the different priorities of policymaking around migration and how they lead to concrete policies, budgets, and implementation. Finally, it discusses the effectiveness and coherence of 420

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these policies. The chapter concludes that the policy approach to M&D cannot be understood without analysing the security dimension, and that the M&D nexus is really a migration-­ development-security nexus (Truong and Gasper 2011).

Evolution of migration-­and-development policy and thinking From the early 1990s, changing political and economic boundaries, growing inequality and globally increased civil conflicts in the post-­Cold War period caused increased and more diversified migration flows and a shifting political and academic discourse with regard to the relationship between M&D in Europe (Black and Koser 1999; Chimni 2000; Hyndman 2012). From the perspective of Western European countries, increased and more diverse immigration flows led to a realization that external efforts to enforce modernization and democratization of low-­income countries, either through military, diplomatic or development aid intervention, tended to fail (Freyburg 2011). The limited success of classic development institutions and reduced budgets for aid and defence led to the search for alternative actors for development. At the same time, a paradigm shift towards post-­structuralism and individualization led to more optimistic views on the power of grassroots actors, including individual migrants and migrant organizations, who would contribute to development from the bottom-­up, rather than top-­ down, state-­led approaches (Faist 2008). Western European national governments gradually became attracted to the idea of ascribing to migrants the moral responsibility to become grassroots actors for development in their places of origin (De Haas 2006; Faist 2008; Skeldon 2008; Raghuram 2009). From a Central- and Eastern European (CEE) perspective, the transition after the end of the Soviet-­backed communist regimes meant a transition from strongly restricted and relatively little mobility to increased out-­migration and circular mobility, mostly within the region (Kaczmarczyk 2005; Kancs 2011). The accession of many CEE countries to the EU in 2004, 2007 and 2013 significantly reinforced transnational mobility, leading to unprecedented inflows of remittances which meant an important source of foreign exchange in the region (León-Ledesma and Piracha, 2004), but also inflation and shortages on domestic labour markets and return migration flows (Martin and Radu 2012). Academic developments also inspired policy interests. The newly introduced concept of transnationalism captured the increased awareness of migrants’ sustained multi-­stranded ties and relationships across borders, linking their societies of origin and their societies of settlement (Basch, Schiller and Szanton Blanc 1994; Portes 1999). Among policy makers, the emerging evidence that financial remittances by migrants to their countries of origin outweighed the size of ODA in some aid-­receiving countries (Gammeltoft 2002) and sparked a serious interest in seeing migrants as tools for development (Bakker 2015). Policy views started taking into account migrants’ potential for poverty-­reduction and the development of their countries of origin (Skeldon 2008). The academic world, in turn, shifted from the early 2000s from merely investigating transnational ties as such to investigating how migrants’ transnational ties might lead to development in societies of origin. The term ‘migration-­development nexus’ was first coined by Sørensen et al. (2002) and subsequently made its way into policy debates (Keijzer, Heraud and Frankenhaeuser 2016). The transnational literature on how migration can promote development was initially mainly developed by Western European scholars and US-­based scholars, and was based on three assumptions (van Houte 2014). The first highlights the self-­selection in processes of migration, as people with more money, networks, knowledge and entrepreneurial skills are better equipped to face the costs and the risks of migration (Faist 2008; De Haas 2010; Van Hear 2014). The idea 421

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is that the transnational involvement of these ‘functional elites’ with their country of origin will be inherently good for the country of origin, as they can continue to play a role through remitting money and ideas (De Haas 2010). A second assumption has to do with any new capacities, such as education and work experience, and desires, such as democratic values, that migrants develop after arrival in the destination country. The implication for development is that these enhanced skills are a potential contribution to development and democratic change (Levitt 1995). A third assumption in the literature on migration and change is inspired by the notion of migrants’ transnational connections to multiple places and assumes the ability of individuals and households to take advantage of geographical differences and transnational mobility to diversify, secure and improve their livelihoods, support coping mechanisms and reduce vulnerabilities (Gardner and Grillo 2002; Faist 2008). The implication for development and change is that the ‘in-­between’ position of their multi-­local ties makes them able to respond to local needs, while being relatively independent from the constraints of structures, giving them the freedom to negotiate change and hybridity (Portes 1999; Sørensen, Van Hear and Engberg-­Pedersen 2002; Brinkerhoff 2011; Freyburg 2011). Yet, along with an increased awareness of the development potential of increased global interconnectedness, the notion from a migrant-­receiving countries’ perspective had also emerged that increasing immigration flows, especially those from places that are considered poorer and culturally, ethnically or religiously ‘distant’, threaten social cohesion, welfare and security in destination countries. In (Western) Europe and other parts of the so-­called Western world, this resulted in growing public and political resistance towards immigration in the 1990s. The events of 11 September 2001, which linked migration to issues of security, conflict and terrorism, led to a further decrease in tolerance towards non-­Western, Muslim and immigrant groups in general. In a process labelled as the securitization of migration, increasing public and political pressure emerged to keep unwanted or even dangerous migrants out of their countries (Huysmans 2000; Sørensen, Van Hear and Engberg-­Pedersen 2002; Bourbeau 2011; van Houtum and Pijpers 2007; Schmidtke 2015). The need to defend domestic security and welfare increased further in the context of the economic recession in Europe from 2008 onwards (ICMPD and ECDPM 2013). The perceived need of the host countries to contain migration and the tendency for more restrictive migration policies also affected the thinking on the migration-­ development nexus, as will be shown below.

Key actors of European migration-­and-development policies Some individual European destination countries, including Sweden, France and the UK, already started implementing ad hoc policies linking migration to development in the late 1990s, although most key destination countries were reluctant to embrace the idea (Keijzer, Heraud and Frankenhaeuser 2016). Moreover, political changes, such as the removal of the severe restrictions on mobility in Central and Eastern European former communist states after 1989 and accession of these states to the EU, unintendedly affected the link between M&D through increased out-­migration, remittances and return migration (León-Ledesma and Piracha 2004; Martin and Radu 2012). However, the greatest deliberate push to promote M&D came from institutions and initiatives of the EU. Although several meetings were held at the EU level to develop common strategies and policies from 1999 onwards, concerns about security and sovereignty made many member states hesitant to get on board in endorsing such policy approach (Hugo 2012; Keijzer, Heraud and Frankenhaeuser 2016). Yet, the increased awareness of the total amount of remittances in the early 2000s caused a rapid attitude change of European governments and international institutions 422

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towards the idea of migrants as tools for development (De Haas 2012). Effective EU policy engagement with M&D issues only really took off in 2005 with the adoption of the Global Approach to Migration (GAM), later rebranded as the Global Approach to Migration and Mobility (GAMM). This policy framework for the EU’s dialogue and cooperation with third countries on migration is ‘the overarching framework of EU external migration policy, complementary to other, broader, objectives that are served by EU foreign policy and development cooperation’ (EC 2011). With its key priority defined as ‘maximising the positive impact of migration on development of partner countries (both of origin and destination) while limiting its negative consequences’ (EC 2011), the GAMM seemed to sufficiently address both the hopes and fears of European immigrant-­receiving states to get on board with the M&D nexus. While combining a number of goals around migration, the GAMM is clear about its strategic priorities, which are to improve the ‘vitality and competitiveness of the EU’, within the changing demographic and economic circumstances (EC 2011). Since the implementation of the GAM(M), the interest in the link between M&D has grown rapidly among mainly Western and Southern EU member states, in comparison to global developments (Keijzer, Heraud and Frankenhaeuser 2016). Although the M&D nexus has become a common buzzword in policy terms, it is not always clear which policies and budgets fall under this header, which also relates to the fact that both terms are not explicitly defined (ibid.). Only a few countries (i.e. France, the Netherlands, Spain and Switzerland) have adopted policy papers specifically addressing M&D and their strategies in this area. Most other EU countries have instead developed communications or documents that select and prioritize particular aspects relating to the M&D nexus, with a focus on remittances, skilled migration and diaspora engagement (Keijzer, Heraud and Frankenhaeuser 2016). Moreover, almost all EU countries earmark ODA budgets for migration-­related issues, with or without explanation in policy papers. These migration-­related ODA budgets include the expenditures to handle incoming asylum seekers and refugees, which have become increasingly significant. According to the Organization for Economic Co-­operation and Development (OECD), half of donor countries redirect their existing ODA budgets to cover these refugee costs (OECD 2016a). These in-­donor refugee costs rose from US$3.4 billion to US$12 billion between 2010 and 2015, while its share of total net ODA rose from 2.7 per cent in 2010 to 9.1 per cent in 2015 (OECD 2016b). The (Western) European countries, as well as the European Commission, operate in an institutional setting where different ministries, governmental and non-­governmental agencies are responsible for different policy aspects of the M&D nexus. Keijzer, Heraud and Frankenhaeuser argue that the prevailing mandate of the Ministry in the lead – Development, Foreign Affairs, Internal Affairs or Justice – is telling for the priorities of the M&D policy. Moving the portfolio from one ministry to another has frequently resulted in M&D policy changes (Keijzer, Heraud and Frankenhaeuser 2016). Moreover, projects on M&D are implemented either by the government’s own implementing agency or through international or non-­governmental organizations. The International Organization for Migration (IOM) is an important implementing partner for many European countries. Specifically, the European Commission and such countries as Belgium, Italy, the Netherlands and Switzerland mainly ‘outsource’ the implementation of their M&D projects to international organizations or non-­governmental organizations (NGOs). Other key implementing partners include diaspora organizations (Keijzer, Heraud and Frankenhaeuser 2016). While the literature on M&D is dominated by a focus on Western European policy, not much literature is available that analyses the role of the CEE governments as active policy actors in this policy area. Instead, ‘[t]he focus on Europeanisation has been predominant in research on migration policy in the region’ (Kicinger 2009). The image comes up of these governments as 423

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subject to the policy adjustments in the context of EU accession requirements (Laczko, Stacher and von Koppenfels 2002; Black, Engbersen and Okólski 2010), or as one of the GAMMs main geographic region of interest as ‘the EU Neighbourhood’ that needs to be managed in terms of people flows.

Priorities and practices of migration-­and-development policy Despite a lack of a clearly defined understanding of migration and development, as well as patchy documentation of which policies and budgets can be considered as promoting the M&D nexus, three types of priorities and practices can be identified that link policies and budgets of migration and development in Europe, with diverging perspectives in migrant-­sending and -receiving states.

Priority 1: promote international development The most visible goal for European countries to link M&D is to promote international development through migrant actors, although the nature of the expected change often remains under­defined (Bakewell 2008; Faist 2008; Raghuram 2009; Brinkerhoff 2011). This particular conceptualization of M&D initially tended to focus on a number of migrants’ ‘resources’ or ‘assets’ to be ‘mobilized’, ‘harnessed’, ‘leveraged’ or ‘tapped into’ for the benefit of their country of origin (Keijzer, Heraud and Frankenhaeuser 2016). Both sending and receiving countries, as well as migrants themselves, are expected to benefit from this, hence the references to a win-­win-win scenario of M&D. Nevertheless, the policy perspectives and priorities can be quite different, depending on the point of departure. A Western European, or receiving country perspective has an implicit but specific view of the ‘right’ kind of change that entails a socio-­economic modernization and liberal democratic state building project covering the introduction of the rule of law, human rights and gender issues, secular and liberal democratic institutions, elections, civil society and market-­based open economy (Cramer and Goodhand 2002; Suhrke 2007; Raghuram 2009; Mac Ginty 2010). For Western European countries, the ‘right’ kind of development entails the facilitation of constructive economic and diplomatic ties with these countries, in other words, a development towards regimes and systems that they can do business with. In a similar vein, migrants’ involvement that may have destabilizing effects or cause political unrest, are considered as undesirable. By contrast, Central and Eastern European countries, which are predominantly migrant-­sending, seem to be more pragmatic and facilitate mobility to release pressure on the domestic labour market, and as a way of increasing national budget (Kicinger 2009).

Practice: migrants as a tool to enhance development In practice, this strand of M&D policy focuses on enhancing the potential of international migrants as ‘tools’ for development in poorer countries of origin (Skeldon 2008). Linked to this understanding, policy efforts to link migration to development initially focused in both sending and receiving countries on a limited set of specific issues, most notably remittances, particularly through transfer cost reduction, and measures to channel them through taxable routes. In addition, the prevention of brain drain became important. From a receiving country perspective, the activities of diaspora groups (a long-­existent term in migration studies indicating the continuous connection of migrant communities to a shared homeland) was now framed in a development perspective (GCIM 2005; Skeldon 2008; ICMPD and ECDPM 2013; Keijzer, Heraud and 424

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Frankenhaeuser 2016). The promotion of diasporic engagements appears prominently in Belgium, France, Germany, Italy, the Netherlands, Norway, Spain, Switzerland and the UK (Keijzer, Heraud and Frankenhaeuser 2016). Moreover, a large focus for receiving countries lies on return migration, based on the idea that migrants who return can add their acquired skills and capital directly to the country. Programmes that promote the link between return and development facilitate the temporary or circular return of highly skilled migrants (Faist 2008; Frouws and Grimmius 2012; ICMPD and ECDPM 2013). Despite numerous evaluations, however, no clear effects of these policies to promote migrants’ impact on development have been established. Rather, research has shown various limitations that prevent the success of this strand of policy. First, these policies pay too little attention to potential detrimental effects of remittances, such as increased inequality linked to the geographic and social selectivity of migration or the development of dependency on remittances in countries of origin. Second, these policies pay limited attention to the heterogeneity of migrants’ skills, capacities and legal and economic status that would enable them to send remittances and otherwise contribute to development (Keijzer, Heraud and Frankenhaeuser 2016), and similarly denied conflicting political agendas within the diaspora and between diaspora groups and their home country governments (Faist 2008). Although global discussions on the link between M&D have focused on the ‘relatively successful ‘voluntary’ or ‘economic’ migrant holding valuable resources, including skills, to be mobilized for the benefit of his/her country of origin’ (Keijzer, Heraud and Frankenhaeuser 2016), countries throughout the EU have expanded this link to encompass refugees, failed asylum seekers and undocumented migrants through their return (ICMPD and ECDPM 2013), which has become an intrinsic part of M&D policies.

Priority 2: defending domestic security and welfare The section above showed that the EU and its member states have to constantly negotiate the priority to promote international development with the priority to defend domestic security and welfare. For this reason, despite the overall positive macro-­economic effects of immigration for destination countries, policy makers in destination countries have come to see immigration as a challenge rather than an opportunity for domestic security and welfare. The link with M&D fits in a trend where ODA is increasingly used for enhancing domestic security and welfare (Brown and Grävingholt 2016). Other than the first priority – where a level of common ground can be found between receiving and sending countries – this second priority reflects mainly a receiving country perspective, though similar concerns for security and domestic welfare can come up in sending countries, when confronted with forced repatriations.

Practice: root causes approach: development policy to prevent migration flows M&D is connected to security through the argument that underdevelopment leads to migration, which in turn leads to insecurity (Marchand 2008). A second strand of M&D policy is therefore directed to eliminating the ‘root’, ‘structural’ or ‘underlying’ causes of migration flows (Lindstrom 2005; Keijzer, Heraud and Frankenhaeuser 2016), such as poverty, unemployment or lack of educational opportunities. Measures to prevent migration are therefore mostly found in Western European and EU policies, and in Central and Eastern Europe only insofar as they are dealing with immigration flows. Although many studies point out towards the fact that not the poorest people migrate and that the increased welfare leading to enhanced capacities and aspirations results in increased, rather than decreased, migration (De Haas 2007), the belief and rhetoric in the ‘root causes approach’ still prevails as a key motivation in the M&D policies of the 425

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European Commission and many European destination countries. For example, in response to the recent inflow of asylum seekers into Europe, the EU launched the Emergency Trust Fund for Africa with the aim to [H]elp foster stability in the regions to respond to the challenges of irregular migration and displacement and to contribute to better migration management. More specifically, it will help address the root causes of destabilisation, displacement and irregular migration, by promoting economic and equal opportunities, security and development. (EC 2015) The same root causes approach in the light of security also leads to policy that argues that migrants returning ‘home’ can contribute to the development of their country of origin, while European host states can be relieved from the burden of migrants who are economically and politically superfluous. In this light, Assisted Voluntary Return (and Reintegration) (AVRR) policies, which are designed to assist in the return of undocumented migrants and (rejected) asylum seekers who have no legal right to remain, is being presented as a solution. With 85 per cent of all AVRR coming from European host countries, this is a typical European policy instrument (Hart, Graviano and Klink 2015). A wide range of countries, including Austria, Belgium, the Czech Republic, The Netherlands, Norway, Slovenia, Sweden, Switzerland and the United Kingdom, finance Assisted Voluntary Return (AVR) programmes from their ODA budgets (OECD 2016b). Several European countries explicitly include AVRR as part of their M&D policy and budget (e.g. Belgium, France, the Netherlands and Spain), claiming that such returns can be considered as capacity building for the country of origin (ICMPD and ECDPM 2013). Nevertheless, research shows that a contribution to development cannot be expected from returnees returning through AVRR (van Houte and Davids 2014).

Priority 3: managing, controlling and regulating the movements of migrants What follows from the two previous priorities is the need to maximize the positive impact of migration on the desirable kind of development in countries of origin, while limiting its negative consequences for domestic security and welfare. A third goal is therefore to bring together destination countries’ concerns with the control of migration on one hand and sending countries’ needs in terms of development aid and access to regular migration opportunities on the other (Pina-­Delgado 2013), by managing, controlling and regulating the movements and behaviour of migrants. This is therefore a priority of both sending and receiving countries. This policy priority is, more than the other two, subject to complex power negotiations, of which it is not always clear who has the upper hand.

Practice: migration management as negotiation tool for aid Following this goal, a third strand of M&D policy is about explicitly linking development to migration management on the bilateral level, by making development aid and cooperation conditional to migration management. The key instruments for the EU to do this are mobility partnerships (EC 2011). These policy instruments are designed to regulate migration in such a way that the EU’s economic, social, development and neighbourhood policies all benefit (Parkes 2009). According to the GAMM, the mobility partnership entails a ‘more for more’ approach, implying an element of conditionality. The mobility partnership offers: 426

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[V]isa facilitation based on a simultaneously negotiated readmission agreement (…) an appropriately sized support package geared to capacity-­building, exchanges of information and cooperation on all areas of shared interest. (EC 2011) M&D are here linked as strategic negotiation tools: with the mobility partnership, the EU, involved member states and third countries negotiate development cooperation and visa facilitation in exchange for readmission and stricter border control (Brocza and Paulhart 2015). A key priority for European host states here is readmission of unwanted migrants who refuse to return via AVRR. As forced deportations require the cooperation of the government of the country of origin of the individual to be deported, the lack of cooperation with readmission has become an increasingly significant barrier to receiving countries. With these readmission agreements, accepting the return of their nationals is made into a duty for third countries. Failure to do so has repercussions on the wider partnership, which includes aid, trade and visa agreements (Collyer 2012). This arrangement is particularly effective when dealing with aid dependent countries. For example, in October 2016, world powers, including the EU, pledged $15 billion towards development aid and peace building in Afghanistan, a day after the EU signed an agreement with the Afghan government allowing EU member states to deport an unlimited number of Afghan asylum seekers. Although the EU reinforced that the readmission deal should not be seen as a condition of the financial support coming out of the donor conference, some scholars (Bjelica 2016; van Houte 2016) have observed that the donors would not have been as generous in their funding pledges if the deportation deal had not come through, and that the Afghan government would not have accepted the deal had it not been conditional on aid. By contrast, different power negotiations were at play in the EU–Turkey Migration deal, in which Turkey agreed to take back asylum seekers crossing over from Turkey to the EU, in exchange for additional financial aid and visa liberalization. Notably, where the Afghan administration may have felt forced into the deal, Turkey seems to use the agreement as a leverage of power over the EU (see for example Von Rohr 2016). The other side of mobility partnerships is to facilitate legal forms of migration, including circular migration, meaning that migrants to high income countries ‘circulate’ back to their countries of origin after a period of time, creating a potential ‘triple win’ scenario. For the origin country, skilled migrants will not be ‘lost’ because they will return after a certain time and these countries will benefit from the remittances that are sent back. The circular migrants themselves should benefit through learning skills while abroad and from their higher earnings. Yet the focus seems to lie on the destination country perspective, as countries bring in the migrant labour that they need while not having to offer citizenship rights (Skeldon 2012). However, it has been argued that while the win-­win-win scenario only works if circular migration implies both flexibility and regularity, allowing migrants to circulate freely, this circulation is in practice much more restricted (ibid.).

Effectiveness and coherence As a result of the multitude of priorities and practices, the key challenge for policies on the M&D nexus is policy coherence, not only within national policies, but also in interaction between sending- and receiving national policies. Scholars studying the link between M&D have raised five main points of tension caused by this lack of coherence, which together hamper the effectiveness of M&D policies. These are the following: 427

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1

2

3

4

5

The tension between controlling and enabling migration. Academic research highlights that the link between development and migration is the strongest when mobility flows are enabled, rather than restricted (Skeldon 2012). In practice, however, the development potential of migrants is undermined by increasingly restrictive immigration and asylum policies, which have increased the costs of migration and hampered transnational engagement (Sørensen 2012). As these policies damage rather than promote the conditions of mobility under which migrants might be actors of change, they arguably contribute to the ‘unmaking’ of the M&D nexus (Carling 2004). Denial of agency and heterogeneity of migrant populations. Some scholars have criticized M&D policies for seeing migrants and migrant communities as mere ‘channels’ for implementing development cooperation budgets that negates the agency of migrants and diaspora organizations to innovate development (Sinatti and Horst 2014). At the same time, seeing migrants as instruments for fulfilling the priorities of the host state fails to see them as purposive actors whose actions are part of dynamic life strategies, ambitions, values and visions (Omata 2013). Although there is a recognition that migrants can shape change ‘from below’ and be grassroots agents of change (EC 2013), policies and budget mainly try to govern migrants’ actions and movements ‘from above’. Not the poorest regions. While migrants are given the responsibility to contribute to development where official aid programmes have failed (Castles and Miller 2009, 58), the European receiving states increasingly channel their M&D funding towards the main countries of immigrants’ origin, which are usually not the poorest countries. This choice raises questions about whether projects seek optimal effectiveness of the ODA budget in terms of promoting sustainable development (Keijzer, Heraud and Frankenhaeuser 2016). Focus on migrants with the least development potential. In addition to the focus not being on the poorest regions, the policy focus is also not on the migrants with the most potential to contribute to development. First, by focusing on migrants in Europe, a minority of all migrants are targeted (Skeldon 2008). Second, while skilled and mobile migrants have the most potential to contribute to development and change, only small shares of M&D budgets promote the initiatives of such privileged migrants. Instead, M&D policy budgets tend to focus on more vulnerable migrants, including asylum seekers and refugees and undocumented migrants, who are less likely to have the legal and economic capacities to contribute to development. (van Houte 2014; Keijzer, Heraud and Frankenhaeuser 2016). Spending ODA on these groups is considered controversial as they are not in line with ODA’s main objective of promoting the economic development and welfare of developing countries (OECD 2016b). Aggravating unequal power relationships. Several authors argue that while M&D policies by European countries have to a certain extent been able to regulate migrant flows and behaviour in a way that serves their political and socio-­economic goals, migrant-­sending countries seldom have the power to regulate outflows and their impact in the same manner (Portes 2010). Despite the emphasis on ‘partnership’, mobility partnerships and readmission agreements are characterized by coercion more than equality, and expose strongly unequal power relationships (Collyer 2012). In this power position, it has been argued that, both in the trade-­off with internal economic opportunities (Ford, Jennings and Somerville 2015), and with regard to their foreign policy, the EU consistently chooses to prioritize European security interests over shared prosperity and democracy promotion (Hollis 2012).

Thus, some scholars increasingly argue that, despite the policy rhetoric, ‘there is no simple one­way relationship between M&D’. ‘Development is unlikely to decrease migration in the short 428

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run, and migration in itself cannot be the main recipe for development’ (Sørensen 2016, 62). This understanding of the complexity of these links has led several authors to point towards the overly optimistic and instrumental take, in which political and economic agendas prevail, making policy-­driven categories of M&D distorted by simplification and exaggeration and not evidence-­based (De Haas 2012, 2014; Gamlen 2014). Sørensen (2016), for example, has argued that ‘much migration-­development policy in reality has served migration management functions rather than development goals’ (Sørensen 2016).

Conclusion Based on the priorities and challenges of policies on the M&D nexus, this chapter shows that from a European perspective, every hope for the development potential of migrants is intertwined with fears for security and welfare of the immigrant-­receiving states. This means that the policy approach to M&D cannot be understood without analysing the security dimension. From a policy perspective, the M&D nexus is really a migration-­development-security nexus (Truong and Gasper 2011). Domestic agendas of sovereignty and domestic security continue to hamper the transnational agenda that would aim to maximize the development benefits while mitigating the costs of human mobility. The notion of the migration-­development nexus is present in many parts of the world. Yet the policy agenda and practice is strongly dominated by the EU and Western European states. The EU has played an instrumental and dominant role in that from a receiving perspective. This is not to say that the EU is successful in reaching their goals that should link migration, development and security. Sending countries, including countries in Central and Eastern Europe, which are not part of the EU or whose accession has been under debate in the past decade, have partly been subject to these policies while also assuming their own power positions. The latter are often called on to ‘harvest the benefits’ of their large migrant communities (associated with emigration, remittances and return) as the development potential in their ongoing political and economic transformations. Therefore, in wider Europe, both migrant-­receiving and -sending states have adopted the M&D paradigm, even if for different reasons.

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The evolution of governance and financing Hugo, Graeme. 2012. ‘Migration and Development in Low-­Income Countries: A Role for Destination Country Policy?’ Migration and Development 1 (1): 24–49. doi: 10.1080/21632324.2012.709806. Huysmans, Jef. 2000. ‘The European Union and the Securitization of Migration’. JCMS: Journal of Common Market Studies 38 (5): 751–777. doi: 10.1111/1468-5965.00263. Hyndman, Jennifer. 2012. ‘The Geopolitics of Migration and Mobility’. Geopolitics 17 (2): 243–255. doi: 10.1080/14650045.2011.569321. ICMPD and ECDPM. 2013. Migration and Development Policies and Practices. A Mapping Study of Eleven European Countries and the European Commission. Vienna/Maastricht: International Centre for Migration Policy Development/European Centre for Development Policy Management. Kaczmarczyk, Pawel and Okolski, Marek. 2005. International Migration in Central and Eastern Europe: Current and Future Trends. New York: United Nations Population Division UN/POP/MIG/2005/12. Kancs, d’Artis. 2011. ‘The Economic Geography of Labour Migration: Competition, Competitiveness and Development’. Applied Geography 31(1): 191–200. Keijzer, Neils, Julie Heraud, and Malin Frankenhaeuser. 2016. ‘Theory and Practice? A Comparative Analysis of Migration and Development Policies in Eleven European Countries and the European Commission’. International Migration 54 (2): 69–81. doi: 10.1111/imig.12191. Kicinger, Anna. 2009. ‘Beyond the Focus on Europeanisation: Polish Migration Policy 1989–2004’. Journal of Ethnic and Migration Studies 35 (1): 79–95. doi: 10.1080/13691830802489200. Laczko, Frank, Irene Stacher and Amanda Klekowski von Koppenfels. 2002. New Challenges for Migration Policy in Central and Eastern Europe. Vol. 1. The Hague: Asser Press. León-Ledesma, Miguel and Matloob Piracha. 2004. ‘International Migration and the Role of Remittances in Eastern Europe’. International Migration 42 (4): 65–83. Levitt, Peggy Jane. 1995. ‘The Transnationalization of Civil and Political Change: The Effect of Migration on Institutional Ties Between the US and the Dominican Republic’. PhD, Massachusetts Institute of Technology. Lindstrøm, Channe 2005. ‘European Union Policy on Asylum and Immigration. Addressing the Root Causes of Forced Migration: A Justice and Home Affairs Policy of Freedom, Security and Justice?’ Social Policy & Administration 39 (6): 587–605. doi: 10.1111/j.1467-9515.2005.00458.x. Mac Ginty, Roger. 2010. ‘Warlords and the Liberal Peace: State-­Building in Afghanistan’. Conflict, Security & Development 10 (4): 577–598. doi: 10.1080/14678802.2010.500548. Marchand, Marianne H. 2008. ‘The Violence of Development and the Migration/Insecurities Nexus: Labour Migration in a North Amer­ican Context’. Third World Quarterly 29 (7): 1375–1388. doi: 10.1080/01436590802386575. Martin, Reiner and Dragos Radu. 2012. ‘Return Migration: The Experience of Eastern Europe’. International Migration 50 (6): 109–128. doi: 10.1111/j.1468-2435.2012.00762.x. OECD. 2016a. Development Aid Rises Again in 2015, Spending on Refugees Doubles. Paris: OECD. OECD. 2016b. Reporting of In-­Donor Country Refugee Costs, accessed 4 April 2018, at www.oecd.org/dac/ stats/RefugeeCostsMethodologicalNote.pdf. Omata, Naohiko. 2013. ‘The Complexity of Refugees’ Return Decision-­Making in a Protracted Exile: Beyond the Home-­Coming Model and Durable Solutions’. Journal of Ethnic and Migration Studies 39 (8): 1281–1297. doi: 10.1080/1369183X.2013.778149. Østergaard-Nielsen, Eva. 2010. ‘Codevelopment and Citizenship: The Nexus between Policies on Local Migrant Incorporation and Migrant Transnational Practices in Spain’. Ethnic and Racial Studies 34 (1): 20–39. doi: 10.1080/01419871003777791. Parkes, Roderick. 2009. ‘EU Mobility Partnerships: A Model of Policy Coordination?’ European Journal of Migration and Law 11 (4): 327–345. doi: 10.1163/138836409x12501577630623. Pina-­Delgado, Jose. 2013. ‘The Current Scheme to Manage Migration between Europe and Cape Verde: Promoter of Development or Tool for Border Closure?’ Population Space and Place 19 (4): 404–414. doi: 10.1002/psp. 1781. Portes, Alejandro. 1999. ‘Conclusion: Towards a New World – the Origins and Effects of Transnational Activities’. Ethnic and Racial Studies 22 (2): 463–477. Portes, Alejandro. 2010. ‘Migration and Social Change: Some Conceptual Reflections’. Journal of Ethnic and Migration Studies 36 (10): 1537–1563. doi: 10.1080/1369183X.2010.489370. Raghuram, Parvati. 2009. ‘Which Migration, What Development? Unsettling the Edifice of Migration and Development’. Population, Space and Place 15 (2): 103–117. doi: 10.1002/psp. 536. Schmidtke, O. 2015. ‘Between Populist Rhetoric and Pragmatic Policymaking: The Normalization of Migration as an Electoral Issue in German Politics’. Acta Politica 50 (4): 379–398. doi: 10.1057/ap. 2014.32.

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Marieke van Houte Sinatti, Giulia and Cindy Horst. 2015. ‘Migrants as Agents of Development’. Ethnicities 15 (1): 134–152. Skeldon, Ronald. 2008. ‘International Migration as a Tool in Development Policy: A Passing Phase?’ Population and Development Review 34 (1): 1–18. doi: 10.1111/j.1728-4457.2008.00203.x. Skeldon, Ronald. 2012. ‘Going Round in Circles: Circular Migration, Poverty Alleviation and Marginality’. International Migration 50 (3): 43–60. doi: 10.1111/j.1468-2435.2012.00751.x. Sørensen, Ninna Nyberg. 2012. ‘Revisiting the Migration–Development Nexus: From Social Networks and Remittances to Markets for Migration Control’. International Migration 50 (3): 61–76. doi: 10.1111/j.1468-2435.2012.00753.x. Sørensen, Ninna Nyberg. 2016. ‘Coherence and Contradictions in Danish Migration-­Development Policy and Practice’. European Journal of Development Research 28 (1): 62–75. doi: 10.1057/ejdr.2015.73. Sørensen, Ninna Nyberg, Nicholas Van Hear and Poul Engberg-­Pedersen. 2002. ‘The Migration-­ Development Nexus: Evidence and Policy Options’. International Migration 40 (5): 49–73. Suhrke, Astri. 2007. ‘Reconstruction as Modernisation: the ‘Post-­conflict’ Project in Afghanistan’. Third World Quarterly 28 (7): 1291–1308. doi: 10.1080/01436590701547053. Truong, Thanh-­Dam and Des Gasper. 2011. Transnational Migration and Human Security: The Migration-­ Development-Security Nexus. Vol. 6. Berlin and Heidelberg: Springer Science & Business Media. Van Hear, Nicholas. 2014. ‘Reconsidering Migration and Class’. International Migration Review 48: S100– S121. doi: 10.1111/imre.12139. van Houte, Marieke. 2014. ‘Returnees for Change? Afghan Return Migrants’ Identification with Conflict and their Potential to be Agents of Change’. Conflict, Security & Development 14 (5): 1–27. doi: http:// dx.doi.org/10.1080/14678802.2014.963392. van Houte, Marieke. 2016. ‘EU–Afghanistan Deportation–Aid Deal: Classic Strategy or Classic Mistake?’ International Migration Institute Blog, 7 October 2016. www.imi.ox.ac.uk/blog/eu2013afghanistandeportation2013aid-deal-classic-strategy-or-classic-mistake. van Houte, Marieke and Tine Davids. 2014. ‘Moving Back or Moving Forward? Return Migration, Development and Peace-­Building’. New Diversities 16 (2): 71–87. van Houtum, H. and R. Pijpers. 2007. ‘The European Union as a Gated Community: The Two-­faced Border and Immigration Regime of the EU’. Antipode 39 (2): 291–309. doi: 10.1111/j.1467-8330.2007.00522.x. Von Rohr, Mathieu. 2016. ‘Europe Must Not Be Blackmailed by Turkey’. Der Spiegel, 8 August 2016.

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Section commentary Pan-­European cooperation on migration? Agnieszka Weinar

Europe is the continent with the longest history of cooperation on migration and mobility, which is part and parcel of political relations. The continent’s history of being divided and separated by the Iron Curtain made mobility a cherished prize of European integration, and it was only recently that the European Union (EU)–Russia stand-­off put the brakes on what would have inevitably been closer cooperation in this domain. In fact, as the authors of the three contributions suggest, the European continent is divided into two spheres of influence, respectively centred in the Western countries of the EU and the Russian Federation. Each sphere is defined by the mobility rights it accords to its inhabitants and the cooperation tools it uses. Cooperation in pan-­European institutions such as the Council of Europe or OSCE (Jaroszewicz, this volume) transcends both spheres and facilitates cooperation on migration between them. ‘Independent’ initiatives such as regional consultative processes by the two main international organisations in the field (IOM and ICMPD) have become vehicles of this cooperation. Even during the current stalemate over Ukraine, the EU and Russia continue their engagement on a lower technical level in these processes. The central debate that is picked up in this section is the role of the EU in shaping its policy environment, especially on the European periphery. The chapters enumerate a range of vehicles that the EU uses to exert its influence: a number of policy tools under a ‘partnership’ label; financing of international organisations and regional consultative processes; migration and development policies, as well as specific visa policy, which makes a direct link between mobility and cooperation on border management. The EU has been identified as a regional hegemon (Haukkala 2008) and thus its policy choices have been seen as crucial to the continent-­wise policy convergence. Indeed, the EU has become a primary actor promoting cooperation on migration, especially after 2005 and the launch of the Global Approach to Migration. Yet, the application of the Approach to the non-­EU regions of Europe was not seen as particularly fruitful; on the contrary, the additional layer of engagement on the EU-­level was seen as overlapping with many other pre-­existing bilateral and multilateral initiatives (European Commission 2007; Weinar 2011). The Annex II to the relevant EC Communication listed over 60 initiatives already funded on the continent by the EU in the years 2000–2006, and that list did not include the plethora of border management projects and anti-­trafficking projects. This number was in addition to CoE, OSCE and bilateral projects and initiatives (European Commission 2007). The EU 433

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thus entered an open door, bringing ideas and deep pockets to an area of already intense exchanges. As presented in the chapters, the EU partnered with its European neighbours on a number of initiatives that should facilitate mobility. However, the idea that cooperation on readmission in exchange for visa liberalisation would be welcome sounds outlandish in the Southern Neighbourhood across the Mediterranean. In part the different attitude in Eastern Europe can be explained by the EU’s own approach: the European partners were given the opportunity to combine two agreements, while non-­European partners never had a clear prospect of visa facilitation (until the Arab spring). This different treatment showed more trust in Europe and also spread the spirit of European integration beyond the EU (Delcour, this volume). Until 2014, Europe as a continent was on the track of visa-­less mobility for all Europeans. Labour mobility was to be facilitated through mobility partnerships. All that was underpinned by cooperation on readmission, counter-­trafficking and border management (Reslow, this volume). Russia is the main actor shaping the mobility and migration flows of nearly one-­third of Europeans, as aptly described by Jaroszewicz. The architecture of the post-­Soviet space consists of at least three different organisations with various levels of cooperation and openness. Russia is the centre of each of them. Russia’s importance as a magnetic pole for migration and mobility in Eastern Europe remains high (Ivaschenko-­Stadnik, this volume). What is interesting is that the policies do not differ much from the solutions adopted in Western Europe. It seems that pan-­European cooperation has indeed succeeded and that similar concepts and solutions coexist on the continent: readmission, circular migration, visa facilitation, freedom of movement, safe third country, safe country of origin: all these ideas can be found both in the EU’s policies and outside of the EU. If policies travelled across the continent, the academic interest in that development and pan­European cooperation on migration has been very uneven. Traditionally, most of the existing scholarship has been dedicated to the Western European countries and to the role of the EU, as illustrated by the contributions to this section. Scholars from Central and Eastern Europe were not interested in these topics, at least until 2015. Even today, in 2017, the debates and analysis of the role of the EU in pan-­European cooperation take place in Western European scholarship, while Central and Eastern European scholars produce rather descriptive pieces, filling an important knowledge-­gap that has developed over the last two decades and preparing the ground for the future debates. The reasons for the uneven interest in broader questions of migration policy in these regions of Europe are quite clear: in countries where emigration (and ensuing socio-­economic challenges) is more of a reality than immigration, mainstream literature on these issues had not developed. In fact, in the Central European countries for example, there was more interest in the EU impact on border management cooperation and asylum before the EU accession than after (Grabbe 2000; Iglicka 2000; Weinar 2006b). The process of the EU accession also meant that the tools and modes of cooperation on migration matters were adopted and internalised, and were thus never really contested or debated (Weinar 2006a; Kicinger, Weinar and Górny 2007; Gawrich, Melnykovska and Schweickert 2010; Makaryan and Chobanyan 2014). The same can be said of the non-­EU European countries, where the scholarship focuses on description rather than on offering a new analytical framework (Ivaschenko-­ Stadnik, this volume). It seems that pan-­European cooperation on migration is taken for granted and seen in a rather neutral or positive light, regardless of the asymmetric power worries of the Western European scholarship. This in itself is a curious phenomenon that could be further explored. Now, as regards the core of the matter: is there anything exceptional in these pan-­European approaches to cooperation on migration? 434

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I would argue that there are at least three defining European features that have been brought to the light by the chapters. First, the cooperation between the neighbours is highly institutionalised. It is a European tradition to have a bureaucratic architecture that can cover various areas of cooperation and underpin legal and semi-­legal frameworks with regard to both bilateral relations and multilateral initiatives. The capacities of the European administrations to deal with the variety of initiatives are also relatively high across the continent. This makes for a unique network of political processes that have their own institutions, action plans and dialogue frameworks at quite low levels of government. This institutional density, and its long history, is not usually seen in other parts of the world. It allows for a day-­to-day cooperation on technical level, independent from the high-­level dialogues and international summits. The importance of that institutional framework has been noted especially by Jaroszewicz and van Houte in this section, who show its importance for the promotion of new policy ideas across the continent. Second, there is always a discourse of partnership and equality, even where it is not the case. As Reslow convincingly argues, the EU is skilled at framing its dominant position as being a partnership of equals. Jaroszewicz suggests that similar techniques have been used by Russia (although only until 2014). The idea of partnership and the use of soft power permeates many policies and ideas of cooperation. The number of regional consultative processes in Europe, where participation is voluntary, speaks to this. In the Eastern regions of Europe that did not suffer from Western European colonialism, the talk of partnership that originates from the Western European core is not necessarily seen as ominous. In the context of the Commonwealth of Independent States (CIS), however, soft power emanating from Russia has arguably been less evident in the recent years. The third defining feature is policy convergence. Institutionalisation and equality are two features that allow policy learning. However, as aptly described by Delcour, sometimes the learning can be in fact conditional. The uses of visa policy by the EU, for example, speak to the idea of coercive learning for the willing neighbours. While the clear rules of visa liberalisation in the Visa Liberalisation Action Plans influenced the development of national visa policies outside of the EU (Mananashvili 2013), they also pushed a number of reforms in other areas (through the system of benchmarks). The benchmarking has not been defined as a constraint however. On the contrary, it has been seen as a palpable measurement of progress to democracy and the rule of law. Indeed, it seems that the EU is the only regional power using its visa policy to change the state of democracy and justice in its neighbourhood. All in all, a European approach to cooperation on migration is still relatively unexplored. As the presented chapters testify, the Western European focus on the EU role has been well-­ conceptualised and probably over-­researched, while the academic analysis that would stem from the perspectives of Central and Eastern European scholarship is scarce, if not non-­existent. Therefore, solid academic work is needed to nuance the meaning of ‘European’ in the European cooperation on migration.

References European Commission. 2007. Communication from the Commission of 16 May 2007 to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, applying the Global Approach to Migration to the Eastern and South-­Eastern Regions Neighbouring the European Union COM(2007) 247 final. Gawrich, Andrea, Inna Melnykovska and Rainer Schweickert. 2010. ‘Neighbourhood Europeanization through ENP: The Case of Ukraine’. JCMS: Journal of Common Market Studies 48 (5): 1209–35. Grabbe, Heather. 2000. ‘The Sharp Edges of Europe: Extending Schengen Eastwards’. International Affairs 76 (3): 519–36.

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Agnieszka Weinar Haukkala, Hiski. 2008. ‘The European Union as a Regional Normative Hegemon: The Case of European Neighbourhood Policy’. Europe-­Asia Studies 60 (9): 1601–22. Iglicka, Krystyna. 2000. ‘Mechanisms of Migration from Poland before and during the Transition Period’. Journal of Ethnic and Migration Studies 26 (1): 61–73. Kicinger, Anna, Agnieszka Weinar and Agata Górny. 2007. ‘Advanced Yet Uneven: The Europeanisation of Polish Immigration Policy’, in Thomas Faist and Andreas Ette (eds), The Europeanization of National Immigration Policies, 181–200. Basingstoke: Palgrave. Makaryan, Shushanik and Haykanush Chobanyan. 2014. ‘Institutionalization of Migration Policy Frameworks in Armenia, Azerbaijan and Georgia’. International Migration 52 (5): 52–67. https://doi. org/10.1111/imig.12163. Mananashvili, Sergo. 2013. ‘Access to Europe in a Globalised World: Assessing the EU’s Common Visa Policy in the Light of the Stockholm Guidelines’. http://cadmus.eui.eu/handle/1814/28257. Weinar, Agnieszka. 2006a. Europeizacja Polskiej Polityki Wobec Cudzoziemców: 1990–2003. Wydawn, Naukowe Scholar. Weinar, Agnieszka. 2006b. ‘The Polish Experiences of Visa Policy in the Context of Securitization’. CHALLENGE Working Paper WP7 12. Weinar, Agnieszka. 2011. ‘EU Cooperation Challenges in External Migration Policy’, Working Paper, European University Institute, Florence.

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Part VIII

Researching migration in Europe

34 Apples and oranges? Politics of data sources on international migration in Europe Anna Di Bartolomeo

Introduction Measuring international migration globally has proven to be a thorny issue. In many cases, data are not shared or simply not collected. And when data are both collected and available, their quantitative interpretation is undermined by reliability and comparability issues. Since emigration and immigration are widely connected with issues of identity and nationhood, even agreeing on ‘what a migrant is and is not’ is an intrinsically subjective issue. The European continent is not an exception but, on the contrary, is a major example of how international migration statistics are susceptible to differences between countries and over time. And this is regardless of presumed cultural affinities in the region. European states have measured, described and conceptualised migration in a large heterogeneous manner depending on their national and international histories, citizenship laws, societal evolution and historical migration experiences. In addition, because statistics are produced on the basis of data that are routinely collected by state administrations, and because migration implies not one but two geographical ends to be considered, data collection and dissemination is difficult and multifaceted by nature. Consequently, while international migration is today a key issue in all European societies, the availability, reliability and comparability of statistics (even very basic) on this phenomenon are extremely poor and hardly allow for making informed decisions. This heterogeneity partially reflects differences between the historical experience, cultural characteristics and national values of individual European countries. This chapter addresses the following questions. To what extent is international migration differently conceived and conceptualised in European states? How are these differences reflected by national data collection systems? What is the role played by identity and nationhood in this process? What are the main limitations when trying to harmonise or simply aggregate these statistics? In an attempt to answer these questions, the chapter analyses European approaches with respect to three key concepts in the measurement of international migration: who, what and how we measure. Migrant definitions, contents and data sources are thus reviewed while major cross­country European differences are highlighted. In sum, the chapter identifies four country groups sharing similar approaches, constraints and categories in the collection of international migration data in view of their identity and historical 439

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common backgrounds: (a) European countries with a long and significant colonial history which mainly attracted migrants from their former colonies; (b) southern European countries which have recently evolved from being emigration to immigration countries; (c) countries characterised by guest-­worker labour migration recruitment schemes which all received significant inward labour migration in the post-­war period until the oil crisis of 1974; and (d) European post-­Soviet countries which experience intense ethnic and labour migration exchanges. The final chapter presents conclusions as well as discusses recent efforts and future steps for fostering a better conceptualisation and harmonisation of European international migration statistics.

Measuring international migration: who, what and how? The frame of European international migration statistics is shaped by how three key concepts are conceptualised and employed: who, what and how are we measuring? Table 34.1 well summarises some issues that may emerge by indiscriminately mixing such concepts. In France, in 2005, according to official sources, the stock of Moroccan migrants living in France did vary from a minimum of 461,465 to a maximum of 1,036,909 persons. Such a huge data discrepancy depends on a variety of factors that have to do with who we mean by ‘migrant’ (definition) and how migrants are counted (source). The first three estimates reflect three different criteria that can be used to define migrants. The lowest number (461,465) identifies Moroccan migrants by the ‘country of citizenship’ criterion, i.e. people holding only Moroccan citizenship. The foreign population, however, cannot be considered a good proxy of international migration because as soon as migrants acquire the citizenship of the country of destination, they simply disappear from this category. This is a serious limitation in France and, more generally, in all countries characterised by fast citizenship acquisition procedures. In Europe, for instance, this is frequently the case for countries with a long colonial history, as well for post-­Soviet states, where some migrant groups benefit from facilitation procedures for getting citizenship. Adopting this criterion in such contexts is thus challenging because it results in a severe underestimation of international migration. A much higher estimate (837,840) identifies Moroccan migrants by the ‘country of birth’ criterion, i.e. as people born in Morocco. Although this estimate allows for capturing naturalised people in the data, it is also not exempt from limitations. In France, the born-­abroad population also includes a high number of people who were born abroad with French nationality and later returned to

Table 34.1  Moroccan migrants in France, 2005 Stock vs. Flow: what?

Source: how?

Criterion: who?

Number

Stock

French source (Census)

461,465 837,840 663,985 1,036,909

Flows

Moroccan source (consular records) ANAEM (*)

Country of citizenship Country of birth Immigrés Country of citizenship (incl. naturalised people) Country of citizenship

Note (*) ANEAM stands for Agence Nationale de l’Accueil des Etrangers et des Migrations.

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France. They are the children of the so-­called rapatriés, i.e. people who a) were residing in a former French colony before its independence; b) were French citizens at the moment the state become independent and c) had fled the colony because of political reasons linked to the independence. Conceptually, their presence in France cannot be seen as a consequence of immigration stricto sensu but rather of emigration flows related to specific administrative and economic relations during the colonial times. This is, again, relevant for all big colonial powers that made it easier for their own citizens to participate in the colonial governance system (by sending government officials for long-­term assignments and rotating them) and in economic ventures (by facilitating the movement of business people and workers between the colonies for various ventures). Those dynamics resulted in whole families moving through colonial networks (Dufoix et al. 2010). To overcome these estimation problems, French statistical authorities created a new category of people that could be used to proxy real international migrants. They are the immigrés: people who were born abroad with a foreign nationality at birth. This new ad hoc category allows the data to capture those who have acquired French citizenship during their life and to exclude children of rapatriés. In so doing, it gives a highly accurate and up to date estimate of French immigration in consequence of its colonial recent past. At the same time, more than one million Moroccans are persons registered by Moroccan consular records. In this case, the data discrepancy is due not to the criterion (who) but to the source (how) that is used. This is the highest estimate, as it likely includes Moroccan descendants of second and third generation as well as a portion of irregular migrants who are willing to be in a regular position at least with their country of origin’s authorities (Fargues 2005). In addition, we should add that when looking at flows (last row, Table 34.1) – that is, the annual number of Moroccan migrants moving from Morocco to France in 2005 – the number clearly drops to around 20,000 people. Unlike stock measures – which denote the (cumulated) story of migration from country x to country y – flow statistics identify the propensity to migrate in a specific period of time, normally one year. This example shows that official and validated migration statistics may vary without necessarily giving wrong estimates. Data discrepancies depend on how these three concepts (who, what and how) are used and mixed. The following paragraphs will focus upon these concepts while also highlighting cross-­country differences.

Who do we measure? Definitional issues in international migration statistics Deciding ‘who is and who is not’ an international migrant is not straightforward. European states do show a high degree of cross-­country heterogeneity while – even within countries – definitions have been frequently changed and adapted to evolving historical situations. Overall, there are two main approaches for defining who an international migrant is: the geo­political and the duration approaches. Within the former, three main criteria are used: (a) country of usual residence; (b) country of birth; and (c) country of citizenship. A highly controversial criterion that is sometimes adopted to complement the previous ones is ethnicity. In Europe, the country of usual residence is not used because it does not allow for distinguishing between first-­time and return migrants, the latter being emigrants who later return home. Instead, both the country of birth and the country of citizenship criteria are usually collected in population statistics, though to a different extent between countries depending on national histories, needs and migration characteristics. In particular, as recommended by the United Nations Department of Economic and Social Affairs Statistics Division (UNDESA, 1998), the country of birth is preferred since migrants continue being migrants (with all the related challenges and benefits) independently of whether he/she becomes a naturalised citizen of their host country. 441

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Rules and practices for acquiring citizenship differ across European countries, as well. Though a better choice, considering the population born abroad as the migrant population is still problematic in some national and regional contexts. For instance, in those countries that have only recently evolved from emigration to immigration countries, the born-­abroad population also includes a significant portion of children of emigrants who were born in traditional European emigration countries and later returned to the country of origin of their parents. Accordingly, they are a product of emigration rather than immigration dynamics. These flows are quite significant and cannot be ignored: see for instance the case of emigrants’ children returning to Italy from Germany or Switzerland (Bonifazi and Heins 1996) or to Poland from post-­Soviet states (Fihel et al. 2008, Gońda 2017). Here, the country of citizenship criterion has long been preferred over the country of birth criterion. Overall, states’ recognition of their diasporas worldwide and their attempts to maintain links with their members in order to boost economic and political development at home largely explain their approaches. The adoption of the country of birth criterion is also problematic for countries with a long colonial history. Here – as noted above in the French case – this population is indeed likely to include the born-­abroad descendants of people who emigrated from the country during the colonial period. Another controversial case for the application of this criterion is when political borders are contested or have changed. The most relevant example is that of post-­Soviet countries, where the born-­abroad population scarcely reflects the reality of international migration movements. Let’s take the example of Russia. In 2010, international migrants are estimated at over 12 million (population born abroad) and less than one million people (foreign citizens) according to, respectively, United Nations (UN) estimates (UNDESA 2012) and Russian official statistics (i.e. the Census). The former estimate is composed primarily of: people of Russian descent who were born in the USSR and who, after the dissolution of the USSR, returned en masse to their parents’ home country; and other ethnic groups who migrated during the post-­Soviet period. These people are perceived as ethnic Russians, rather than international migrants. The same applies, for instance, to Poland. In a recent study, Barrett (2012) reports that this country appears to have the highest proportion of non-­EU immigrants (of the total population) receiving welfare provisions. This figure does, however, include all pensioners who were born before 1945 in parts of Ukraine and Belarus, which were then part of Poland, and who moved with their families to post-­1945 Poland as ethnic Poles. They were simply following the changing border. This is the main reason why in this region authorities collect data on ‘ethnicity’ in most statistical sources. This category, sometimes regarded with suspicion by western statisticians due to its high degree of subjectivity, is thus fundamental in Eastern European statistical assets. The country of citizenship variable is also widely collected in most European countries. In spite of its limitations, this criterion allows the identification of the population who do not necessarily have social and economic rights, i.e. the target of integration policies. Its main drawbacks, however, include the fact that migrants disappear from statistics as soon as they get citizenship. This leads to a huge underestimation of international migrants, especially in those countries characterised by fast or simplified procedures for getting citizenship. In Russia, for instance, some foreign groups can easily acquire Russian citizenship. In addition, the foreign population often includes a portion of people who have never migrated, i.e. second-­generation migrants, especially in those countries with a rigid jus sanguinis law. When looking at the duration criterion, other issues and discrepancies between European states emerge. In particular, according to the UN definition, short-­term migrants are those people who changed their country of usual residence for a period between three and 12 months, 442

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whereas those who stay more than 12 months are long-­term migrants. In this case, European countries pursue many different approaches, which reflects their differing views of what temporary and permanent migration is. There is no common agreement from a statistical perspective either. A major limitation of this criterion is, in fact, the difficulty of standardising it. Normally, migration statistics are generated from a population register (a file of persons residing in the country). To be registered in it, a person coming from outside the country must intend to stay for more than a specified minimum period. This period varies widely between countries – ranging from one week in Germany, to three months in Belgium and 12 months in Sweden. This implies that in countries where the duration threshold is lower, more short-­term movements will be counted while the opposite will occur where this threshold is higher. In Sweden, paradoxically, no short-­term movements are registered. Another limitation of this approach is that different categories are put together and therefore they do not reflect migration realities. Temporary migrants with a permit for less than 12 months can be family members as well as students. However, while international students or seasonal workers intend to stay on a temporary basis, family members do not. This is reflected by the fact that permits for the former are renewable for a limited number of times – if at all – and are indefinitely renewable for the latter. As mentioned above, substantial differences are observed between countries.1 Another major problem with counting temporary migrants concerns all cases where bilateral agreements exist for visa-­ free circulation.

What and how are we measuring? Contents and data sources The issue of what and how international migrants are measured is also not straightforward. With regard to the former, one can measure migrants’ stocks or flows. While stocks target lifetime migrants and denote the (cumulated) history of migration from country x to country y, flows express the propensity to move between two countries in a given period of time (normally one year). Stocks and flows are nevertheless linked to each other by the population balance of the international migrant population within a year.2 Concerning the latter, data sources denote a ‘specific data set, metadata set, database or metadata repository from which data or metadata are available’.3 Demographically speaking, data sources target a) the resident or de jure population, i.e. people regularly domiciled in the country at the time of the Population Census; and b) the present or de facto population, i.e. people who are actually present in the country on the date of the Population Census (even if domiciled somewhere else). Data sources can also be classified according to different criteria and this explains the high degree of heterogeneity between countries in this regard. They can be classified in primary vs. secondary; administrative vs. statistical; etc. Of particular interest for migration studies in Europe is the classification between migration sources’ direct and indirect measurement. The same person can indeed be counted as an ‘emigrant’ from the origin country and an ‘immigrant’ from the destination country. Although getting direct estimates is certainly straightforward (Fargues 2005; UNDESA 1998), indirect methods are valid substitutes in certain cases. For instance, in the case of semi-­open border regimes – such as the Commonwealth of Independent States area – circular migrants do not need to apply for work permits when performing seasonal or temporary jobs. This leads to the paradoxical situation in which their numbers and profiles are simply unknown. In response to these challenges, Moldovan authorities for instance have developed an ad hoc module on emigration in their annual Labour Force Survey (LFS). The LFS contains a section in which family members of an emigrant are asked to answer a 443

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battery of questions on the international mobility of their family members and other contextual aspects (remittances, etc.). This instrument is a powerful tool for a variety of reasons. First, it is a longitudinal study that is useful for studying migration circularity patterns and detecting causality. Second, it is rich with information from the individual and contextual level. Third, and most importantly, it allows for capturing a large part of ‘invisible’ migrants from a statistical viewpoint. Conversely, a major drawback is that it does not capture migrants with no family members left behind. In other words, it is a powerful tool for estimating temporary rather than permanent migration. This is exemplified by Table 34.2, which shows the number of Moldovan migrants living in Russia (a) and Italy (b) in 2010 as counted by Russian, Italian and Moldovan data sources. Russia and Italy are the two major destinations of Moldovan migrants. While Russia is home to seasonal and circular Moldovan male migrants performing seasonal activities in construction and manufacturing industries, Italy has long been a primary destination for female – but also male – Moldovans on a more permanent basis. As a matter of fact, Moldovan sources give a much more up to date – and larger – estimate of migrants living in Russia than of those living in Italy, where instead they tend to underestimate their presence (Table 34.2). A major reason for this discrepancy is the character of Moldovan migration, which is typified by temporary work in Russia and permanent settlement in Italy.

Differences and commonalities within Europe: an attempt at classification The way that migration is perceived and data are collected is extremely heterogenous in the European continent, not only between states but also within the same state at different points in time. Despite this heterogeneity, we make an attempt at classification and, in line with previous works (see e.g. Fassmann et al., 2009), we identified four ‘European statistical groups’, all of which share similar approaches, issues, needs and priorities in terms of conceptualising, modelling and collecting international migration statistics. The first group includes European countries with a long colonial history, namely Belgium, France, the Netherlands and the UK. All of these countries are characterised by massive inflows of labour migration during the 1960s, originating in their former colonies. Today, with the

Table 34.2 Moldovan migrants living in Russia (a) and Italy (b) according to different sources, 2010 2.a Source

         Russian source

Population Census Work Permits Labour Force Survey

34,000

Moldovan source

72,233 195,700

2.b Source

Italian source

Population Register Labour Force Survey

174,129

Moldovan source

60,300

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exception of the UK, family-­related migration is the major channel of entry for new migrants. As a consequence of these legacies and smooth citizenship acquisition laws, acquiring the citizenship of these countries is a quite straightforward procedure, in particular for nationals coming from their former colonies. The acquisition of citizenship is here perceived as a requisite to facilitating a smooth and effective integration of migrants. As a consequence, in all of these states, the foreign population is not a good proxy for identifying international migrants. At the same time, the country of birth also has some notable limitations. For instance, there is a risk that the children of nationals who emigrated at the time of the colonial period will be considered immigrants as well. Each of these states has tried arranging its statistical system to better reflect the reality of immigration. French statistical authorities invented the immigrés category for these purposes, as we have already discussed. In spite of its advantages, however, this category has certain limitations: people originating in the French Overseas Departments and Territories and their descendants are not included; third generation migrants are lost; and it does not allow for capturing visible minorities (Simon and Clément 2006). In the Netherlands, statistical authorities introduced the notion of ‘Dutch’ vs. ‘foreign background’. The former group includes persons whose parents were both born in the Netherlands while the latter includes people having at least one parent who was born abroad. In addition to the country of birth and citizenship variables, this information allows for better circumscribing the immigrant population. The UK is a case in point. While there is no specific definition of who a migrant is, the law makes a clear distinction between those who have the ‘right of abode’ in the UK (all British citizens plus a small minority of Commonwealth citizens) and those who do not have this right. In addition, data sources are extremely heterogenous. The ‘foreign-­born’ population criterion is normally used by the LFS and the Annual Population Survey. This definition is consistent, and corresponds to a common understanding of migration. However, many foreign-­born people are also British citizens, and thus would not count as migrants if defined by nationality. Nor are they subject to immigration control. A migrant may be alternatively defined as a ‘foreign national’ using, for instance, data obtained from National Insurance Number (NINo) applications. A crucial peculiarity that makes the UK data collection system unique in the western European continent is the collection of the variable ‘ethnicity’. The interest in the ethnic composition of the population is an Anglo­Saxon inheritance and – despite the huge debate existing around its substantive meaning (Aspinall 2002), its connection with the category ‘race’ (Kertzer and Arel 2002) and its ‘stability’ over time (Simpson and Akinwale 2007) – remains a powerful category in the monitoring of discrimination and ethnic relations within British society. On the opposite side, Belgian statistics are the most restrictive. Migrant definitions and sources only focus on the foreign population and the country of citizenship criterion, although some limited attempts on collecting data on ethnic minorities has been observed over time (see e.g. Hanquinet et al. 2006). The second group is composed of countries that recently evolved from being emigration countries to being immigration countries. As countries with a very long emigration tradition, the main mode of automatic acquisition of nationality in all these countries is jus sanguinis, so as to support an easy and fast acquisition of nationality by descent (rather than by birthplace). For example, the Spanish Civil Code embraces an unqualified jus sanguinis in favour of those born of a Spanish mother or father who become nationals regardless of whether they were born in Spain or outside of the country. However, certain jus soli elements are observed (Marín et al. 2015). Similarly, Greek nationality law is based on the automatic acquisition of the father’s citizenship at birth, irrespective of where the child is born. In Italy, due to its late national unity and its policy of nurturing relationships with the Italian communities abroad, the Italian Citizenship Act does put a major emphasis on the jus sanguinis principle, too. Moreover, just after 445

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the promulgation of the (new) Citizenship Act in 1992, a special temporary programme made it possible for the descendants of Italian emigrants to claim their Italian nationality (Zincone and Basili 2013). Conversely, the rules for getting Italian citizenship for immigrants are extremely restrictive (ibid.). In Portugal, by contrast, the long tradition of favouring jus soli mechanisms of citizenship acquisition was interrupted by the 1981 Act that, in the context of a large Portuguese emigration, introduced the prevalence of the jus sanguinis principle. In 2006, this principle was reinforced by a reform that broadened the modes for the acquisition of Portuguese citizenship (Piçarra and Gil 2012). National statistical assets reflect these approaches. On the one hand, statistical sources have been slowly adapted to focus on inward migration rather than outward migration, for instance by inserting the question about citizenship. On the other hand, the immigrant population is strictly identified as people who have a foreign nationality, regardless of where they were born. Crossing a border does not imply necessarily ‘being a migrant’, as emigrants’ descendants are still seen as integral parts of their nationhood. With regard to harmonising European statistics, this has certainly been a huge limitation. For instance, only very recently, Greek, Portuguese and Italian statistics started to disseminate information on the foreign-­born under the Eurostat statistical category ‘Demography and Migration’.4 A third group identifies those countries that developed significant post-­1945 guest-­worker schemes attracting southern European migrants first, and workers from non-­European Communities later. In Austria, Germany and Switzerland, immigration and its consequences has always been perceived as ‘temporary’. Migrants were supposed to arrive, work and later return to their home countries. Migrants have long been perceived as temporary workers without access to citizenship and rights. In these highly segmented societies, access to citizenship has been conceived as a very final process of integration rather than a way to facilitate it (Reeger and Sievers 2009). Accordingly, not only are their citizenship laws all strictly based on the jus sanguinis principle but also, they all set highly restrictive rules – albeit alleviated over time – for the not-­at-birth acquisition of citizenship. Statistical definitions and data sources reflect this policy of ‘exclusion’. Migrants are strictly identified as the foreign population and are recorded in special temporary registers, namely in the ‘guest-­worker register’ in Austria (now abolished), the ‘Central Register of Foreign Nationals’ (Ausländerzentralregister) in Germany and a ‘special register’ in Switzerland. When measuring international immigration, the fourth group, which includes EU (Bulgaria, Czech Republic, Hungary, Poland, Slovakia and Romania) and non-­EU (Belarus, Moldova, Russia and Ukraine) post-­Soviet states, faces a number of issues that concern both definitions and sources. As regards the former, the dissolution of the Soviet Union created an exceptional number of ‘statistical migrants’ (Mansoor and Quillin 2006) for two sets of reasons. First, despite the fact that migration to the west was formally prohibited, living and working in a Soviet republic other than the place of birth was common in the communist period. As soon as the Soviet Union dissolved and borders were reshuffled in 1992, these people become international migrants overnight, lost in ‘accidental diasporas’ (Brubaker 2000) even though they had never crossed an international border. Second, in the 1990s, we saw massive return migrations of people descended from parents in a post-­Soviet state who simply returned to their parents’ home country. These people were called ‘ethnic migrants’, as they were perceived as part of the nationhood rather than as foreigners. This is why – in contrast with western European statistical tradition – the variable ‘ethnicity’ has acquired a high value in framing the notion of migration within the area. Indeed, in all of these states, the majority of population sources ask for ethnic origins as well as birth and nationality. 446

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In addition to these inheritances, the Commonwealth of Independent States (CIS) region is challenged by two other issues that make measuring international migration problematic. From a cultural, linguistic and historical viewpoint, this region remains a common area for most of the population (Tishkov et al. 2005). As a consequence, there are no visa requirements for crossing internal CIS borders. In addition, when migrating for work reasons on a seasonal or circular basis, people do not have to obtain a permit. Again, they are perceived as guests – or simply internal migrants – moving within consolidated historical legacies. This implies that temporary migrant workers are simply invisible to destination countries’ statistics since no administrative data source has been established to count them. This is the reason why ‘counting migrants at origin’ through ad hoc surveys (e.g. LFS) is frequently advocated as a powerful method for estimating international migration within the CIS region (Makaryan 2015).

Conclusions This chapter delved into the complex issue of how international migration has been measured in the European continent. It showed that measuring international migration is problematic and that any attempt to harmonise statistics is challenging. Basic issues include the establishment of who is a migrant (a definitional issue), what is measured (stock or flows?) and how the movements are measured (i.e. which is the best source to capture whom and what we are interested in?). These basic concepts show a high degree of heterogeneity between countries and across time within the same country. This complexity depends on the fact that both emigration and immigration are widely connected with issues of identity and nationhood. In this framework, the European continent represents a major example of the extent to which national histories, cultural and historical legacies, citizenship laws and political frameworks may have an impact on what – at least in principle – should be objectively determined: the number and profiles of international migrants originating in country x and living in country y. Even defining ‘what a migrant is and is not’ intrinsically represents a subjective issue that is seen differently by law experts, social scientists and policy makers. More importantly, this chapter shows that even ‘objective’ sciences – such as statistics – encounter a number of problems when trying to circumscribe populations. Developing data collection methods and defining data sources greatly depends on different national approaches and histories. With this in mind, we showed the extent to which the frame of European international migration statistics is shaped by how three key concepts – who, what and how are we measuring? – are conceptualised and employed across the continent. Overall, the statistical heterogeneity in the measurement of international migration is a central issue not only for the whole European continent but also for the EU. Notwithstanding its continuous efforts to provide technical guidance, standardising concepts, definitions5 and data sources,6 the measurement and comparison of international migration in Europe is still a major issue, and a victim of other political and statistical priorities. It is becoming even clearer now, in the wake of the EU migrant crisis, that a century of ignored recommendations cannot be solved in a day.

Notes 1 This is why the Organisation for Economic Co-­operation and Development (OECD) proposed the introduction of a new criterion that would allow the consideration of whether or not these persons are on a ‘migration track’ that normally leads to permanent residence. Concretely, the idea is to switch from a ‘time-­basis’ approach to a criterion that combines stay and residence rights and tries to capture

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2 3 4 5

6

the nature of the movement. In particular, the OECD suggests distinguishing between permanent type migration permits for persons granted the right of permanent residence upon entry and for those with a permit of limited duration that is indefinitely renewable, and temporary type migration permits which would instead include temporary visitors and persons granted a permit of limited duration that is not renewable on a limited basis (Lemaitre 2005). For instance, we consider the population born abroad, the stock of migrants at time t (31/12/2010) equals the stock of migrants at time t-­1 (1/1/2009) – deaths born abroad within 2009 (flows) + immigrants (flows) – emigrants (flows). https://stats.oecd.org/glossary/detail.asp?ID=7045. http://ec.europa.eu/eurostat/data/database. See, for instance ‘UN Recommendations on Statistics of International Migration, Revision I, 1998’; the 2004 EC-­project ‘Towards Harmonised European Statistics on International Migration’; the ‘European Parliament and Council Regulation (EC) No 862/2007’ on Community statistics on migration and international protection and repealing Council Regulation (EEC) No 311/76 on the compilation of statistics on foreign workers; the ‘Commission Regulation (EU) No 351/2010’ implementing Regulation (EC) No 862/2007 of the European Parliament and of the Council on Community statistics on migration and international protection as regards the definitions of the categories of the groups of country of birth, groups of country of previous usual residence, groups of country of next usual residence and groups of citizenship. See indicators, variables and metadata of the Eurostat database (http://ec.europa.eu/eurostat/data/database) and of the main ad hoc EU surveys (EU-­LFS and EU-­SILC).

References Aspinall, P. J. 2002. ‘Collective Terminology to Describe the Minority Ethnic Population: The Persistence of Confusion and Ambiguity in Usage’, Sociology, 36(4): 803–816. Barrett A. 2012. Welfare and Immigration, MPC Research Report 2012/07, Robert Schuman Centre for Advanced Studies, European University Institute: San Domenico di Fiesole (FI). Bonifazi, C., Heins, F. 1996. ‘Le migrazioni di ritorno nel sistema migratorio italiano: un riesame’, Studi Emigrazione, 33(122). Brubaker, R. 2000. ‘Accidental Diasporas and External “Homelands” in Central and Eastern Europe: Past and Present’, IHS Political Science Series 71: Vienna. Dufoix, S., Guerassimoff, C., Tinguy, A. de 2010. Loin des yeux, près du coeur. Les Etats et leurs expatriés, Presses de Sciences Po: Paris. Fargues, P. 2005. ‘How Many Migrants from, and to, Mediterranean Countries of the Middle East and North Africa?’, Analytic and Synthetic Notes 2005/16, European University Institute: San Domenico di Fiesole (FI). Fassmann, H., Reeger, U., Sievers, W. 2009. Statistics and Reality Concepts and Measurements of Migration in Europe, IMISCOE Reports Amsterdam University Press: Amsterdam. Fihel, A., Tyrowicz, J., Kaczmarczyk, P. 2008. Migracje powrotne Polaków. Warsaw: Fundacja Inicjatyw Społeczno-Ekonomicznych. Gońda, M. 2017. ‘Roots migration to the ancestral homeland and psychosocial wellbeing’, In Vathi, Z., King, R., Return Migration and Psychosocial Wellbeing: Discourses, Policy-­Making and Outcomes for Migrants and Their Families, Routledge: London-­New York. Hanquinet, L., Vandezande, V., Jacobs D., Swyngedouw, M. 2006. Exploratory Comparative Study on the Notion of Ethnic (Immigrant Origin) Minorities and its Operationalisation, Vol. 2, Fondation Roi Baudou: Bruxelles. Kertzer, D.I., Arel, D. 2002. ‘Censuses, identity formation, and the struggle for political power’, In Kertzer, D.I., Arel, D., Census and Identity: The Politics of Race, Ethnicity, and Language in National Censuses, Cambridge University Press: Cambridge: 1–42. Lemaitre, G. 2005. The Comparability of International Migration Statistics. Problems and Prospects, OECD Statistics Brief, Paris: OECD. Makaryan, S. 2015. ‘Estimation of International Migration in Post-­Soviet Republics’, International Migration, 53(5): 26–46. Mansoor, A., Quillin, B. 2006. ‘Overview of migration trends in Europe and Central Asia, 1990–2004’, In Mansoor, A., Quillin, B. (eds), Migration and Remittances, Eastern Europe and the Former Soviet Union, Washington, DC: The World Bank.

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Politics of data sources on migration Marín, R.R., Sobrino, I., Pérez, A.M., Moreno Fuentes F.J. 2015. ‘Country report on Citizenship Law: Spain’, Country Report, RSCAS/EUDO-­CIT-CR 2015/4, EUDO Citizenship Observatory, Robert Schuman Centre for Advanced Studies, European University Institute: San Domenico di Fiesole (FI). Piçarra, N., Gil, A.R. 2013. ‘Country report on Citizenship Law: Portugal’, Country Report, RSCAS/ EUDO-­CIT-CR 2012/8, EUDO Citizenship Observatory, Robert Schuman Centre for Advanced Studies, European University Institute: San Domenico di Fiesole (FI). Reeger, U., Sievers, W. 2009. ‘Statistics and migration: Past, present and future’, In Fassmann, H., Reeger, U., Sievers, W. (eds), Statistics and Reality Concepts and Measurements of Migration in Europe, IMISCOE Reports, Amsterdam Unoversity Press: Amsterdam. Simon, P., Clément, M. 2006. ‘Rapport de l’enquête “Mesure de la diversité” Une enquête expérimentale pour caractériser l’origine’, INED, Documents de travail 139/2006, Institut National d’Etudes Démographiques: Paris. Simpson, L., Akinwale, B. 2007. ‘Quantifying Stability and Change in Ethnic Group’, Journal of Official Statistics, 23(2): 185–208. Tishkov, V., Zayinchkovskaya, Z., Vitkovskaya, G. 2005. ‘Migration in the countries of the former Soviet Union’, Genva: Global Commission on International Migration. UN Department of Economic and Social Affairs Statistics Division (UNDESA). 1998. ‘Recommendations on Statistics of International Migration Revision 1’, Statistical Papers Series M, No. 58, Rev. 1, United Nations: New York. United Nations, Department of Economic and Social Affairs, Population Division (UNDESA). 2012. International Migration Report 2011. Zincone, G., Basili M. 2013. ‘Country Report on Citizenship Law: Italy’, Country Report, RSCAS/ EUDO-­CIT-CR 2013/3, EUDO Citizenship Observatory, Robert Schuman Centre for Advanced Studies, European University Institute: San Domenico di Fiesole (FI).

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35 Analysis of discourses and rhetoric in European migration politics Susana Martínez Guillem and Ivana Cvetkovic

Introduction Critical Discourse Studies (CDS) is a transdisciplinary family of theoretical and methodological approaches, focusing on the analysis and critique of discursive practices in relation to broader ideological processes, as well as the material conditions that shape and are shaped by them (see Wodak and Meyer, 2016; Flowerdew and Richardson, 2017). A CDS approach can be seen as an extension of the Critical Linguistics framework (Fowler et al., 1979; Kress and Hodge, 1979) that developed in and out of Western European contexts. The main premise of the analyses developed from this perspective considers language not as a neutral descriptor of reality, but as an important instrument in the structuring of power relations in societies. Consequently, CDS strives to uncover how the legitimation of particular control mechanisms occurs, among others, through specific linguistic practices. In spite of its Western European core, and due to its decidedly problem-­oriented nature, as well as the constant refinement and broadening of its analytical tools, CDS has progressively become appealing to the larger European continent, as well as to other Western and non-­Western contexts such as the US, Australia, or China (Shi-­Xu, 1999; Tracy et al., 2011). CDS scholars working in/on Europe were, from the very beginning, interested in exploring processes of exclusion and inclusion. As such, a CDS perspective is intrinsically related to migration politics. Two of the foundational works in this area, van Dijk’s Prejudice in discourse (1984), and Wodak’s edited volume on Language, power and ideology (1989), both address the relationship between discourse and ideologies informing racism, discrimination and othering in different contexts. The theoretical and analytical concepts developed in these studies thus constitute an influential basis for CDS research on migration politics. In the last four decades, the CDS research agenda has expanded considerably to include different spheres and settings, but it has retained, at least in the European context, an interest in the interactional component of discursive practices, as demonstrated by the emphasis that many studies place on the local negotiations of meaning that constitute practices such as parliamentary debates, storytelling, or online discussions, among others. At the same time, a CDS perspective has continued its initial media focus on newspapers (Fairclough, 1995) and complemented it with analyses of different forms of (new) media discourses. As a whole, these studies show that CDS constitutes an important methodological contribution of European scholarship to global 450

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migration studies – a perspective that offers a nuanced look at the dynamic ways in which broader politics of migration are legitimated, contested and/or negotiated via discourse. This chapter will give an overview of the main contexts, concepts and methods employed by European CDS scholars working on migration politics. We divide the literature in three main strands, according to the sphere of society (institutional, media or everyday) that is highlighted. We also address developing areas and possible future research directions.

European migration and institutional discourses CDS typically concentrate on the analysis of how social injustices are reproduced in society through power dynamics. Consequently, much of the body of CDS looks at institutions as the main sources of dissemination of particular ideologies through influential practices such as law-­ making (for a recent exception, see García Agustín, 2015). In the realm of European migration politics, this has been a particularly fruitful area of research, fuelled by constant legal developments and disputes, since most European countries have, in the last decades, introduced changes to their immigration policy, usually restricting it (Garner, 2007). This has also been the case at the European Union (EU) level, where ‘free’ internal movement advantages are increasingly based upon a fierce policing of the EU’s external borders (Martínez Guillem, 2015). In this context, CDS research offers an in depth look at how particular understandings of migration and (im)migrants are discursively negotiated in the institutional realm, informed by and informing dominant ideologies of tolerance, belonging, or citizenship (Milani, 2015; Pulinx and Van Avermaet, 2015). Different studies, for example, show a consistent and historically increasing link between migration and security (Buonfino, 2004; Lamb, 2014) – a connection that paves the way for repressive policies. These restrictive moves are enforced both in core and peripheral EU states. The perception of newer EU member states, such as Slovenia and Slovakia, as ‘transit counties’ legitimizes repressive policies in this context, as those countries act as de facto EU and Schengen area guards (Žagar, 2009; Androvičová, 2013). However, research also shows that, paradoxically, the will to protect a so-­called ‘European identity’ through changes in immigration and citizenship laws has resulted in a retreat to nationalistic ideologies (Dell’Olio, 2005), since often times the idea of a homogeneous European identity and culture informs national policies that reinforce whiteness (Martínez Guillem, 2011). As Wodak and Boukala (2015) succinctly sum up,  debates about European identities – especially since the financial crisis of 2008 – have increasingly been accompanied by debates about both more traditional racialised cultural concerns and more recently, about economic security, leading to new distinctions between ‘Us’, the ‘real Europeans’, and ‘Them’, the ‘Others’. (p. 87) When examining the discourses surrounding migration politics in Europe, the concrete institutional practice of parliamentary debates has received extensive attention, yielding thought-­ provoking insights into the processes of immigration law development and negotiation, or in other words, how migration politics is ‘discursively done’ through interaction. As mentioned above, this interest in interaction clearly distinguishes discourse-­based analyses from other traditions, such as rhetorical criticism, that tend to privilege a more formal study of speeches and public address in general, and have found a firmer ground in US academic settings. The study of parliamentary discourse is currently especially prominent in Southern European countries that experienced a rapid growth in their migration population in the last three decades, such as 451

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Spain, Italy or Greece, and consequently a push for new legislation (Colombo, 2013). In the case of newer EU members’ parliamentary debates, studies often focus on the relationship between discourses and migration policies influenced by the EU stance, on the one hand, and discourses at the national level in these specific historical, cultural and political contexts, on the other (Androvičová, 2013; Kralj, 2013). Through historical, comparative or topic-­oriented analyses, this line of work shows how the use of particular words, as well as different discursive-­linguistic and argumentation strategies, establish explicit and implicit links between ‘immigration’, ‘problem’ and the need for ‘control’ that frame and limit the terms of parliamentary debates (Zapata-­Barrero, 2007; Férriz-Núñez and Ridao Rodrigo, 2008; Burroughs, 2015b). Notably, in the context of the current economic crisis, this kind of explicit anti-­immigration discourse has ceased to be the exclusive domain of extreme, far right political activism (Karamanidou, 2016), thus becoming an important component of ‘centre’, and even ‘leftist’ arguments about immigration (Lario Bastida, 2008). Moreover, the combination of policy texts with other kinds of elite discourse producers, such as media texts or academic publications, offers wide-­ranging insights on the normalization of an anti-­immigrant stance across European countries, often masked under the apparently inclusive trope of ‘integration’ (Horner and Weber, 2011; Martínez Guillem, 2015; Wodak, 2017). Another important area of discourse-­analytical research at the European institutional level has to do with language-­related policies. Even though, compared to other Western contexts such as the US or Australia, many European countries officially acknowledge the coexistence of different languages, in the context of global migration (especially from non-­EU countries) research reveals the prevalence of a series of linguistic ideologies (Rosa and Burdick, 2017) that shape direct and indirect discriminatory practices. These ingrained ideas about language naturalize, for example, monolingualism, standard dialects or written languages as inherently superior. Such views, in turn, inform policies and practices with regards to education curricula, citizenship tests or asylum claims that systematically disadvantage those migrants whose linguistic repertoire is rendered ‘inadequate’ (Hansen-­Thomas, 2007; Milani, 2009; Horner, 2015). Methodologically, most of the studies on European migration and institutional discourses draw on Critical Discourse Analysis (Fairclough, 1995) or a specific approach within it, such as the Discourse-­Historical Approach (Wodak and Reisigl, 2009) to offer a qualitative, critically-­ oriented interpretation and evaluation of their texts against broader socio-­economic contexts. However, there have also been some recent and productive attempts to combine these kinds of analysis with quantitative tools, such as those offered by corpus linguistics, in order to offer more comprehensive assessments of historical developments in migration discourses and policies, as well as comparative analyses across different European nation states (MacDonald, Hunter and O’Regan, 2013; Engström and Paradis, 2015). More recently, the incorporation of methodologies that allow for the interpretation and critique of visual dimensions of discourse, such as multimodal discourse analysis (Zhao et al., 2017), has allowed for the exploration of different and important channels of (re)production of political discourse on (im)migration, such as campaign posters, or demonstration signage (Richardson, 2007; Richardson and Colombo, 2013).

European migration and media discourses Discourse approaches to media and migration mirror the European colonial and postcolonial migration patterns and relations. The vastest body of scholarly research in this area addresses media discourses in the traditionally biggest colonial powers – the UK and France, followed by research in Italy and Spain—the Mediterranean countries who became new migrant destinations 452

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in the last three decades. The current ‘refugee crisis’ has shed light on Greece as the first EU country that migrants and refugees reach on their way to economically more attractive Western European countries (Fotopoulos and Kaimaklioti, 2016). Former communist Central, Eastern and Southeastern European countries also produce research from a discourse perspective, but focus more on intra-­EU migration after the EU enlargement in 2004 and 2007 such as, for example, the study of mediated discourses on Polish and Romanian economic migrants to the UK (Galasinska, 2009; Light and Young, 2009). Other examples include Kralj (2013) and Žagar (2009), who employed Critical Discourse Analysis and Discourse Analysis respectively to discuss reproduction of xenophobia in media discourses about Bosnian refugees after the civil war in the former Yugoslavia, and migrants from Soviet Union, Asia and Africa who are mainly in transit through Slovenia, the former Yugoslavian republic that joined the EU in 2007. Overall, however, research on migration politics in Eastern European countries is less discourse-­centred when compared to Western Europe, and predominantly adopts political, anthropological and historical perspectives. Most media-­oriented analyses that draw on discourse literature embrace a CDS framework as they build on van Dijk, Fairclough and Wodak’s understanding of discourses as representing, legitimizing and reproducing dominant ideologies (Grzymała-Kazłowska, 2009; Žagar, 2009; Horner, 2011; Kilby, Horowitz and Hylton, 2013; Kralj, 2013). Similarly to the trends identified in the study of institutional discourses, qualitative methods are applied individually (Erjavec, 2009; Tipton, 2012; Montali et al., 2013; Costelloe, 2014; Burroughs, 2015a; Persson, 2016) or in combination with quantitative ones such as corpus linguistics (Baker et al., 2007) and, to much lesser extent, cognitive linguistics approaches (Pinero-­Pinero and Moore, 2015), as well as multimodal methods that focus to both textual and visual elements of media texts (Martinez Lirola, 2014). In general, this line of work addresses mediated knowledge produced through discursive practices of migrant representations and media frames and narratives (Binotto, 2015, Chouliaraki, 2017) deconstructing the most common media linguistic and lexical strategies (Montali et al., 2013), rhetorical devices and strategies (Kilby, Horowitz and Hylton, 2013; Cârlan and Ciocea, 2014), and metaphors (Montali et al., 2013) present both in media articles and elite commentaries available first and foremost in newspapers. These analyses focus on newspapers in the individual country, or provide cross-­country analysis of national newspapers with the aim to reveal discourse nuances in different contextual settings. Cultural difference, othering, ‘Us’ versus ‘Them’ rhetoric, control of illegal immigration, citizenship, language differences and hence language and education policies, and integration into nation and a host-­state are the most discussed concepts with regards to media articles. Very often, the analyses show how these concepts are intertwined and either support or contest each other within the same news article. Thus, the media often juxtapose othering discourses with multicultural discourses, thus providing apparent pluralism in values and behaviour. Cultural difference is a concept promoted through overt racialized discourse that ‘others’ migrants based on their alleged incompatibility with the host country culture. Cultural difference discourse does not discuss race or biological features of migrants but instead racializes them as inherently different (Näre and Nordberg, 2016). Thus, racialized cultural difference establishes, maintains and reproduces racism both on the institutional level and in the relations among individuals. Related to this, an ‘Us’ versus ‘Them’ strategy positions migrants as out-­group outsiders. This strategy is often employed as a part of nationalism discourses of exclusion that construct others as those who do not belong to a particular European nation, which is often equalized with the state (Kralj, 2013; Costelloe, 2014). Moreover, migrants are portrayed as passive and excluded from the positions of power (Martinez Lirola, 2014). 453

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Another useful analytical concept is metaphor. Metaphors are deployed in media articles as tools of ideological values both by journalists and their sources with the aim to normalize migration policies and programmes from the point of view of the migrant-­receiving country – such as, for example, metaphors of invasion emphasized with the use of numbers. Natural disaster metaphors such as ‘tide of migrants’ and ‘big waves’ also construct and maintain a xenophobic perspective that depicts migrants as problematic and violent. Moreover, the focus on news elements such as headlines and leads emphasizes arguments and lexical style that showcase that certain linguistic patterns present in numerous media articles construct immigrants as a threat, and deviant invaders prone to crime (Montali et al., 2013). Similarly to the discursive strategies used in Western media, Eastern European media, such as Polish and Slovenian major newspapers, also construct migrants, especially those of non-­ European origin, as new Others and a threat to the nation-­state (Grzymała-Kazłowska, 2009; Žagar, 2009; Kralj, 2013). Discourses from the newer EU members construct migrants from the other European countries outside the EU as refugees. Thus, for example, Bosnians in Slovenia are perceived as economic migrants, whereas non-­European migrants are perceived as exotic individuals. Kralj (2013) combined the analysis of media and parliamentary discourses to show how both media and official representatives in Slovenia co-­constructed immigrants from non-­EU countries as less desirable, and as a security, cultural and medical threat. Moreover, immigrant bodies are criminalized as they are constructed as abusers of asylum procedure that is in accordance with the EU standards. The ‘Us’ versus ‘Them’ gap and xenophobia are constructed and maintained through the device of naming migrants from non-­European countries as immigrants or illegals, whereas refugees from Bosnia and immigrants from EU countries are not categorized in the same way. Media research in European countries outside of the EU, especially the Balkan countries – not the most desirable final destinations for migrants – conceptualize migrants in a much broader way: as new, internal others who, based on religious affiliation and willingness to participate in a civil war, became citizens of a European nation-­state (Erjavec, 2009). The dominant Western ‘war against terror’ discourse affected the change in media discourse in three neighbouring Balkan countries. Serbian and Croatian media intensified framing of foreign Muslim combatants who were granted Bosnian citizenship as legalization of militant Islam and terrorism, whereas Bosnian media abandoned the ‘Us’ discourse present before 9/11 and embraced the discourse of loyalty to the Western powers by differentiating Bosniaks and Arab Muslims in the stories about citizenship revocation and constructing Arab combatants as ‘global others’. Media analysis on migration discursive practices has paved the path to more recent discussions on discourses on different media platforms, such as blogs, forums and other kinds of social media. Pettersson, Liebkind and Sakki (2016) for example, focus on how, through blogging, radical right politicians in Sweden justify their ethnic minority belonging in relation with their affiliation with an anti-­immigrant political party, therefore participating in knowledge production about migrants, their bodies and politics that maintain and reproduce politics of exclusion. Similarly, Galasinska (2009) explored the ways mediated personal narratives on Internet forums reveal new discourses of individual success stories of how Polish migrant workers manage to migrate and perform jobs on the level of qualifications that have already had. These new discourses of the Polish migration post-­enlargement are counter-­narratives of historically hegemonic discourses of Polish economic migration in which Polish migrant workers accept only jobs below their qualifications. In addition to traditional media, emerging media platforms allow for new channels to foster everyday migration discourses formation and encourage appearance of different written mediated discourses that shape and are shaped by institutional discourses.

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European migration and everyday discourses A final defining characteristic of discourse-­analytic research, and one that also sets it apart from other traditions such as traditional linguistics or rhetorical criticism, is the study of naturally-­ occurring conversation or everyday discourses (Tracy et al., 2011). This is not an exception in the case of migration politics, where such approach has allowed for the study of the ways in which migration shapes and is shaped by ordinary practices such as service encounters (De Wilde, Van Praet and Rillof, 2016), city signage (Blommaert, 2012) or student-­teacher interaction (Martín Rojo, 2010), among many others. As a whole, this strand of research sheds light onto how politics of migration is ordinarily done in everyday encounters, and it often offers an important addition to institutional and media-­based studies through the incorporation of migrants’ practices in their own terms. These studies often combine ethnographic methods (Rozakou, 2012) and interviews (Figgou et al., 2011; Sapountzis et al., 2013) with the tools of discourse analysis, and they also tend to incorporate theoretical and analytical concepts for the analysis of identity formation, such as those found in the area of discursive psychology (Billig, 1992; Potter, 2011). One particularly useful framework for the study of these everyday dynamics has been provided by the notion of ‘superdiversity’. The term was first introduced by Vertovec (2007) as a tool for social and anthropological analysis, and experienced a rapid development in discourse studies thanks to contributions coming from the realm of sociolinguistics, mostly through the work of Blommaert and associates (Arnaut et al., 2016). In short, superdiversity tries to account for the specific conditions of contemporary (mostly Western) societies, characterized by increased and diversified mobility, cultural and linguistic diversity, and constant contact among diverse groups – a conjuncture that produces challenges as well as opportunities. Discourse-­oriented research in this area emphasizes the development of ‘urban vernaculars’ as a compound of different linguist resources and repertoires, and it focuses mainly on youth language and identity, popular culture practices, teaching contexts and literacy practices (Arnaut and Spotti, 2014). Some of these studies also draw on ethnographic fieldwork to account for the mismatch between, for example, official language policies, on the one hand, and the daily needs and doings of both immigrants and public administrators (De Wilde, Van Preat and Rillof, 2016). A related and similarly influential area of research draws on the notion of ‘linguistic landscapes’ to trace the influence of migration patterns, as well as dynamics of place and space, on the different languages and dialects that can be observed in signage throughout particular city areas, associated to specific places such as markets, or cultural practices such as social movements (Martín Rojo, 2014), as well as the overall relation between these linguistic landscapes and social change (Blommaert and Maly, 2014). Overall, these studies show that the presence and absence of different languages in public spaces is intrinsically related to broader social processes of inclusion, exclusion, marginalization or erasure of particular groups. A final focus with regards to migration and everyday contexts has to do with identity management. These studies analyse discursive strategies by those who identify as native members of host societies (De Cillia, Reisigl and Wodak, 1999), those who identify as (im)migrants (Del Teso Craviotto, 2008; Varjonen, Arnold and Jasinskaja-­Lahti, 2013), and also the interaction between established residents and those of immigrant origin (Marzorati, 2013). In general, findings show that sharp distinctions between ‘Us’ and ‘Them’ remain and contribute to reinforce national as well as (im)migrant group identification, although the social sanctioning of explicit prejudiced talk often shapes discussions away from what are perceived as delicate topics such as ‘nation’ or ‘race’ (Condon, 2000) and towards discussions of ‘culture’ and ‘citizenship’ that nonetheless still convey racialization practices (Blackledge, 2006; Gattino and Miglietta, 2013). 455

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Conclusions Overall, a CDS approach to European migration politics helps illuminate the complex, multidirectional and sometimes contradictory ways in which broader socio-­economic and historical dynamics discursively interact with and (re)shape different contexts – those we called ‘institutional’, ‘mediated’ and ‘everyday’. As the body of research reviewed here shows, the particular conditions of the European continent, which include a tension between the so-­called ‘national’ and ‘supranational’ levels, as well as between EU and non-­EU members, limits the kinds of questions that can be asked, from a CDS perspective, about ‘European’ discursive practices. Rather, research often concentrates on specific cities, nation states or regions – such as, for example, Southern Europe – that may share particular trends shaped by similar socio-­economic conjunctures. As mentioned above, this focus has the advantage of shedding light onto the specifics of migration politics’ discursive doings, so that we can better understand how particular ‘issues’ become ‘issues’ in the first place, as well as the ways in which, through language, different social actors (re)produce hierarchies among groups. In this sense, discourse-­oriented research is especially equipped to emphasize distinctions between different kinds of migrants and the conditions – national origin, race/ethnicity, gender, linguistic repertoire, socio-­economic status – that are intrinsically related to discursive practices of othering as they construct specific groups as more or less welcome. Future research, we would argue, could benefit from more detailed qualifications of the term ‘(im)migrant’ that can better account for these different experiences.

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459

Index

accession: Central and Eastern Europe (CEE) 40, 42, 95, 201, 421; conditionality 203, 253, 415; Eastern Partnership (EaP) 416; process of 2, 139, 397; Schengen area 414 Ad hoc Immigration Group (AHIG) 17–18 Afghanistan: asylum seekers 242; AVR 265, 267; readmission 254, 427; refugees in Central and Eastern Europe 275; returnees 257 AHIG see Ad hoc Immigration Group Albania: diaspora engagement 44; emigration 39, 215; ius soli 146; visa liberalisation 414 Annual Risk Analysis (ARA) 228–229; see also Frontex risk analysis anti-immigrant attitudes: Central and Eastern Europe (CEE) 278; Russia 191; studies on 87–88 anti-immigrant parties 82, 87, 163, 173, 454; see also far-right parties anti-immigrant politics 99, 137 Arab Spring 22, 246, 316 Argentina, immigration policy 55 Armenia, EU impact on 395, 416 Assisted Voluntary Return (AVR): as a choice 265; cost of 264; counselling 267; criticism of 265; and development 263–264, 267, 269–271, 296; and reintegration 269; and Reintegration (AVRR) 261; studies of 267 Assisted Voluntary Return and Reintegration (AVRR) 261, 426; criticism of 266; sustainable return 264 asylum: political 17–18, 21; reception 23; standards 6, 19, 300 asylum applications 359; increase of 22–23 asylum claims 203, 242, 263; denied 200 asylum directives 326; Conditions Directive 322, 349; implementation 325; Procedures Directive 113, 299, 316, 318, 325; Qualification Directive 299, 316, 318, 351; Reception

Conditions Directive 316, 318, 322; Temporary Protection Directive 116; see also European asylum law asylum policies, harmonisation of 317–318, 323 asylum procedures: access to 242; Central and Eastern Europe 332; common 263, 297–298, 349, 356–357; divergence 298, 309; duration 298, 351, 356; minimum guarantees 317 asylum recognition rates 255, 279, 298–299 asylum seekers 1990s 17; arrival of 6, 199; AVR 263–264, 426; Central and Eastern Europe 275; criminalisation of 256; detention 112; distribution system 299; failed 204, 207, 251, 256, 261–267, 270, 425; genuine 242; integration 297; see also integration, refugees; labour market access 298, 349; perception of 201, 297; post-Soviet countries 330; reception centres 267, 351, 356; reception of 349; securitisation 242; security threat 201, 239; violence against 87 asylum seekers and refugees: definition 349; labour market participation of 298, 348–349, 353, 356 Australia, processing asylum seekers 306 Austria: border control 276; ‘cash for care’ 368 Belarus, female migrants from 368 Belgium: anti-immigrant parties 87; nonextradition 284 border: enforcement 232, 246; European Border Surveillance System 246; humanitarian 218, 242–243; maritime 213, 215, 241, 277; securitisation of 213, 220, 239–241; security 222, 240; technologies 202, 219, 240, 243–244, 246–247 border control: common external 15, 231, 293; deterritorialized 240; externalisation 203, 239, 241; industries 245–246; internal 22–23

460

Index border guards: deployment 56; European 215; Europeanisation of 216, 221; local 231, 234; national 218, 278; training 228 border management: actors 217; cooperation 434; Foucauldian critique 217; integrated 214, 216, 277, 279; paradox 218 Britain: multiculturalism 157–159, 161; race 159; see also UK Budapest Process 3, 403, 405 Bulgaria: investors program 151; Schengen accession 414; solidarity 244 Calais 104, 129, 244 Canada: AVR 263, 268; immigration regime 31; resettled refugees 358 care: regimes 365–366, 371; sector 365, 367–369, 371; work, informal 368 care workers 363–364, 366–371; home-based 369–370; see also domestic workers CEE see Central and European countries Central and Eastern European countries (CEE) 140, 421; as candidate countries 139, 253; citizenship 148–149, 152; CJEU 140; co-ethnics 95, 149; communism 40, 275, 277, 309, 383–384; as destination 40, 137, 205, 371; diaspora policies 95; emigration 383–384; Employer’s Sanction Directive 139; ethnic diasporas 150; knowledge production 94; legal framework on migration 139; migration governance 92–93; mobility 40, 422, 424; political parties 138; return migration 384; Schengen acquis 411, 413; undocumented migrants 139; visa liberalisation 410, 415 Central Asia 191 children: migrant 73, 185, 218, 265; left behind 41, 95, 179; see also unaccompanied minors CIS see Commonwealth of Independent States citizenship: deprivation of 150–151, 154; integration of migrants 445; investor programs 151–153; ius soli 146; national identity 145; naturalisation 146, 148; policies 145; tests 56, 147, 171–172, 183, 452 citizenship policies 149, 192 citizenship regimes 3, 130, 132, 161; and human rights 146 civic integration: impact of 175; and multiculturalism 173 civic integration policies: dual outcomes 174; in Europe 171; and family migration 186; labour market 174; language requirements 174; political parties 173 Civil Society Organisations (CSOs): and European asylum policy 30; local policy-making processes 32 CoE see Council of Europe Commission see European Commission Common Agendas on Migration and Mobility (CAMMs) 296

Common Basic Principles of Immigrant Integration 348 Common European Asylum System (CEAS) 298, 315; foundations of 294; minimum standards 325, 349; reform 112, 300; strong regulators 315–316, 319–320, 322–323, 332 Common European Framework of Reference for Languages 168 Common Security and Defence Policy (CSDP) 277 Commonwealth of Independent States (CIS) 41, 45, 221, 401, 435, 447; and 1994 CIS Charter 406; migration system 206; mobility 41 Constitutional Treaty 21 control gap debate 8, 50, 64, 93 Council of Europe (CoE) 312, 401–404; asylum issues 307; ECtHR 100 counter-terrorism 151, 235 counter-trafficking 434 Court of Justice of the European Union (CJEU) asylum seekers 102 Court of Justice of the European Union, expulsions 114 Critical Discourse Studies (CDS) 450–451 Croatia, refugees acceptance 333 CSDP see Common Security and Defence Policy Cyprus, investor citizenship 151–152 Czech Republic, seasonal workers 275 Denmark: fiscal effects of migration 377; language courses for refugees 358; opt-outs 21 detention 6, 57, 112 deterrence 214, 218–219, 221, 256 diaspora 44, 95, 420, 425, 442; definition 42; engagement 44–45, 137, 423; in Europe 43; policies 42, 45 diversity 163–164, 172 domestic constraints 110, 397 domestic policies: and CJEU rulings 102; ECtHR influence 101; misfit 319, 322 domestic veto players 416; and readmission 395; in Ukraine 416 domestic work 363–366, 369–370 domestic workers 364–371; undocumented 370; and welfare state 365 Dublin Convention 18–19, 21, 240, 294, 317 Dublin Regulation 297–298, 317, 325 Dublin System 116, 244, 297; collapsed 298; transfers of asylum seekers 102, 105, 252, 297; transfers of asylum seekers to Greece 105 Dublin Treaty 294 Eastern Partnership (EaP) 253, 410, 414–415; EU influence on 416; visa liberalisation 411–412, 414–415 EBCG see European Border and Coast Guard ECJ see European Court of Justice

461

Index ECtHR see European Court of Human Rights education: access to 351; of low skilled immigrants 340; policies 453 EEPO see European Employment Policy Observatory EEU see Eurasian Economic Union emigrants: citizenship 151; European 40–41, 151, 443 emigration: Central and Eastern European states 137, 434; data on 443; from Europe 41; politics of 38, 95; post-accession 40; selectivity 384; as state failure 95 emigration and diaspora policies 39–40, 42, 45 EMN see European Migration Network enlargement: and external EU borders 215; and intra-EU mobility 19, 453; voting in the Council 20 ENP see European Neighbourhood Policy ERN see European Resettlement Network ERN Estonia, denaturalisation 149 ethnic minorities 87, 126–127, 131, 245, 445, 454 EU asylum policies: liberal standards 322; lowest common denominator 320, 322 EU cooperation with third countries 296; conditionality 296, 331, 395, 426 EURAs see EU Readmission Agreements Eurasian Customs Union 406 Eurasian Economic Union 401, 406–407; mobility 407 Eurasian Migration System 206, 402 EU Readmission Agreements (EURAs) 251, 253–254, 256, 258, 331, 395; TCNs return clause 253 EU relocation and resettlement programme 240, 297–298, 305; Central and Eastern Europe 138 European Agenda on Migration 391 European arms industry 246–247 European asylum law 185, 318; harmonisation 298 European Asylum Support Office (EASO) 111, 218, 299 European Border and Coast Guard (EBCG) 216, 255, 299 European citizenship see EU citizenship European Commission 78, 93, 110–111, 201, 204, 227, 322, 393; Directorates-General 393; external dimension of migration policy 392–393; infringement procedures 23, 298; transnational city networks 31; visa liberalisation 414–415; voting rights 43 European Convention on Human Rights (ECHR) 5, 100, 102, 294, 307 European Convention on nationality 152 European Court for Human Rights (ECtHR) 100, 102, 140, 401; asylum seekers 307; and CJEU 100, 102; Hungary 140; jurisdiction 103; liberal constraint 113; Polish case law 140; readmission 296; Rule 39, 140; and the states 101

European Court of Justice (ECJ): EU citizenship 153; judicial review 16, 20, 110, 153; jurisdiction over immigration cases 21–22; see also Court of Justice of the European Union European Economic Area (EEA) 181, 339, 349 European exceptionalism 23, 95, 228, 235, 303–304, 311 European External Action Service (EEAS) 392 European international migration statistics 440, 446–447 Europeanisation 30, 32, 61, 63, 67, 214–215, 222, 294–295; asylum policies 318; border management 213–216, 221–222, 277; migration policies 64, 66, 180, 405; neighbourhood 435; Poland 30; supernationally-driven 110; transit countries 205; visa policies 65 European Migration Network (EMN) 78 European naval operations 241 European Neighbourhood Policy (ENP) 296 European Parliament (EP) 20–21, 110–113, 299, 322–323, 392–393, 415; co-decision 16, 18, 21–22, 307; elections 43, 83; EU citizenship 153 Eurostat 446 external dimension see Global Approach to Migration externalisation of EU migration policies 393, 405 family reunification: arranged marriages 180, 184–185; family members 185; Family Reunification Directive 64, 102, 182; marriages of convenience 183, 185; policies 52, 180–181, 184, 186; same-sex 179, 182, 184, 416 financial crisis 21, 54, 74, 151, 154, 385, 451 Finland, integration programs 358 foreign workers see migrant workers Former Soviet Union (FSU) 168, 205, 216, 402 Former Yugoslav Republic of Macedonia (FYROM) 414 Fortress Europe 18, 306 France: care workers 368; civic republican tradition 159; data collection (on migration) 73, 440; emigrants 43; judicial decisions 104; rights of refugees 284 Frontex: joint operations 227–229, 234; mandate 231; the origins of 228 Frontex risk analysis 217, 227–238, 254; network (FRAN) 228 FSU see Former Soviet Union GAMM see Global Approach to Migration and Mobility gender: assisted return 267; equality 146, 148, 183–184; family migration 183, 186; inequality 370

462

Index Geneva Convention on Refugees 293–294, 300; geographic clause 289 Georgia: emigration effects 386; EU impact on migration policy 395; visa liberalisation 415–416 Germany: asylum seekers 87, 294; citizenship 161; domestic work 366, 370; effects of immigration on 376; ethno-nationalism 157; family reunification 183; ius soli 146; labour migration to 344; migrant category 73; migration crisis 104; political claims making 85; refugee protection 290; state sovereignty 104; trade unions 370; transitory measures 368 Global Approach to Migration and Mobility (GAMM) 44, 295, 423–424, 426 Global Forum on Migration and Development (GMFD) 29–30 Greece: arrivals by sea 310; asylum seekers 322; citizenship 148; refugee crisis of 2015 453; regularisation programs 205; relocations from 310; transfers of asylum seekers to 73, 105 Hague Programme 22 High-Level Working Group on Asylum and Migration 393 humanitarian: assistance 217–218, 277, 305; border policing 243; catastrophes 61, 219, 310; migration system 207; search-and-rescue 277 human rights: norms 5, 146, 413; protection standards 23, 100–101, 295 Hungary: citizenship policies 149; and the migration crisis 23, 138, 140, 278–279, 315; referendum 278 IBM see Integrated Border Management identity: contemporary immigrant 73; European 451; national 5, 84, 122, 148, 162, 164, 201 IDPs see Internally Displaced Persons illegal employment 139, 201 illiberal liberalism 53, 172 illiberal states 53 ILO see International Labour Organisation IMF see International Monetary Fund immigrant communities 193, 278 immigrant integration 30, 32–33, 57, 146, 167, 169, 173; civic integration measures 175; national models 31, 158 immigrants: second generation 73, 146; undocumented 368 immigrant workers see migrant workers immigration: control 23, 139, 174, 184, 445; illegal 16, 19, 21–22, 200–201, 206, 242, 395 Integrated Border Management (IBM) 214, 216–217, 219, 222, 246, 277, 279 integrated risk analysis model, common (CIRAM) 228 integration: failure of 160, 162; philosophies of 121, 154; policies 26, 30, 34; theories 110–111

intergovernmentalism 16, 19–20, 111 Internally Displaced Persons (IDPs) 190, 193, 404 International Centre for Migration Policy Development (ICMPD) 29, 205, 404–405, 407 International Court of Justice (ICJ) 152 International Labour Organisation (ILO) 29, 369–370, 395 International Monetary Fund (IMF) 357 International Organisation for Migration (IOM) 404–405; AVR 263; Russia 256 intra-EU mobility 4, 42 IOM see International Organisation for Migration Ireland: emigration 40; ius soli 146; opt-out 21 irregular migrants 200–205, 255, 264–265, 267, 270, 275–276, 279, 413; employment 202; regularisation 205; vulnerable 204; see also undocumented migrants irregular migration 7–8, 58, 75, 199, 218, 243, 274; governance of 200; politics of 200–202, 206; see also undocumented migration Islam, in Bosnia 454 Islamophobia 57, 92, 138, 157 Italy: care workers 367; citizenship 149; immigration from Albania 215; ius soli 445; Libya 23, 247; operation Mare Nostrum 218; relocation 138; solidarity 23; strategic ‘wavethroughs’ 325 knowledge production 71, 73, 76–77, 79, 94, 214, 454 Kosovo: AVR 268; visa liberalisation 414 labour market: access to 122, 139, 298, 351; Central Eastern Europe 40, 275; exclusion from 56; flexibility 340, 345; impact of emigration on 42, 384; impact of immigration on 345; integration 54, 87, 167, 174, 348, 351, 353, 357–360; mobility 174, 351 labour migrants 183, 205, 359, 384; skilled 5; undocumented 5 labour migration 5, 93, 119–120, 181, 186, 363, 406; policies 5, 53; seasonal 220, 385 language requirements 44, 171, 174, 183, 358–359 Latvia: denaturalisation 149; emigration 41 liberal constraint thesis 109–111, 114–116, 202 Libya, EU cooperation with 221 Lisbon Treaty 16, 18, 21–22, 30, 101, 318 Lithuania, language testing 168 Maastricht Treaty 16, 18–19 Malta, investor citizenship 151, 153–154 media: content analysis 83; coverage of migration 83–89, 378; European context 82; immigration debate 82; impact 88; parliament debates 86; political claims making 85; stereotyping 358, 379 media discourse 192, 452–453

463

Index migrant activism 135 migrant communities 52; substantive representation of 131; transnational engagement 127 migrants: agency of 265, 428; circular 427, 443; illegal, hostility towards 278; low-skilled 53; political participation 126; returned 261; second generation 73, 127, 442; skilled 16, 425, 427; third country nationals 75, 94 migrant workers 6, 191, 364; care services 363, 365; from CEE 40, 344, 368, 454; CIS 406; demand for 366, 368, 371; dependence on 53; EU citizens 367; highly-skilled 151, 343; lowskilled 340, 343; rights of 51; seasonal 4–5, 93, 111, 443; structural demand for 50; temporary 42, 74, 192, 446–447; undocumented 6, 200, 202–203, 206, 274, 370 migration: intra-EU 453; post-accession 95; securitisation of 95, 230, 232, 239–240, 242; undocumented 363, 395, 404 migration agencies 66–67 migration and development nexus 394, 420–424, 427–429 migration control logic 201–202 migration controls, funding 243 migration crisis (of 2015) 23, 112, 116, 118, 297, 307–309, 391, 397; and border controls 309; burden-sharing 23; Dublin system 116, 308; President Juncker 112; see also refugee crisis (of 2015) migration governance 28, 33, 71–72, 78, 200; Central and Eastern Europe 92–93; externalization of 239; global 29; historical patterns 74; international organisations 205; multilevel 29, 33; regional 31; the role of knowledge 76–77 migration management 66, 401, 426; and AVR 264; and deportation 252; externalisation of 203; regional approach 405; and third countries 296 migration policies, divergence 33, 64 migration-security nexus 76 minorities 73, 84–85; Council of Europe 403; integration of 89 MIPEX 94, 351 mixed migration flows 6, 8, 207, 300, 404 mobility 4, 42, 407; intra-EU 18, 41–42, 95; management of 213; non-EU countries 396; policies 43; rights 433; zones of 40 mobility partnerships (MPs) 392, 394, 397, 426–427 Moldova: ius soli 146; visa liberalisation 415–416 Morocco: cooperation with France 256; cooperation with Spain 77, 257; readmission negotiations 395; SIVE 244, 246 multiculturalism 119, 138, 158–159, 161–162, 173–174

Muslim communities 183–185 Muslims 160, 163, 454; see also Islam, in Bosnia; Islamophobia Nansen passport 285 nationality: EU 153; impact on electoral participation 127–128; and population data sources 446 national sovereignty 17, 58, 215, 392, 394 nationhood 43, 157, 439, 446–447 NATO see North Atlantic Treaty Organization Netherlands: AVR (R) 267, 270, 426; civic integration tests 5, 168; data source (on migration) 445; family migration 102, 179; multiculturalism 87, 157–159, 161; Newcomers Integration Law 171; pillarisation 159; political parties 174; Turkish immigrants 173 Nice Treaty 101 North Atlantic Treaty Organization (NATO) 239, 277, 403 Norway: AVR (R) 266; resettled refugees 351 ODIHR see Office for Democratic Institutions and Human Rights Office for Democratic Institutions and Human Rights (ODIHR) 402, 404 Organisation for Economic Cooperation and Development (OECD) 72 Organisation for Security and Cooperation in Europe (OSCE) 402–405, 407, 433 OSCE see Organisation of Security and Cooperation in Europe parties: anti-immigration 119, 122, 146; far-right 130, 173, 202 Poland: data collection (on migration), 442; ECtHR 140; effects of emigration 41; hostility towards immigrants 278; informal care work 368; migration governance 93; post-accession migration 95; seasonal migration 385; simplified system of entry 139 policy networks 27, 31–32, 44, 78, 109 Portugal: citizenship acquisition 446; emigrants 43 post-Soviet states 95, 205–206, 401, 407, 442 RABITs 216 race: and cultural difference discourse 453; and ethnicity 445; and gender 186 racism: morality of 248; and power 240 readmission, cooperation on 392, 434 refugee allocation system 297–298, 317 refugee crisis (of 2015) 175, 229, 253, 255, 296–297, 299, 335, 339; Balkan route 242, 275–276; see also migration crisis (of 2015) refugees: labour market 348–349, 353, 356; resettlement of 309, 351, 358

464

Index Regional Consultative Processes on Migration (RCPMs) 403–407, 433, 435 Regional Development and Protection Programmes (RDPPs) 296, 404 regularisations 204–205, 367–370 remittances 422–424; in Central and Eastern Europe 421–422; detrimental effects of 425; financial 385, 421; social 40, 95, 385, 417 removal 140, 204, 214, 251–252, 264 Return Directive 204, 255 return migration 270, 377, 425; Central and Eastern Europe 384 Romania 254–256, 279; citizenship policy 153; co-ethnics 94; visa requirements 414 Russia: AVR 261; citizenship policies 192, 442; data collection (on migration), 442; illegal migration 206; mass immigration to 191; media 192; migrant integration 191; refugee arrangement 286; visa facilitation 414 Russian Federation see Russia safe third countries 253, 294, 311, 434 Schengen: acquis 228, 234–235, 411, 413–414; Borders Code 227, 229, 231, 297; evaluation mechanism 229, 235 Schengen Agreement 21, 220, 294 Schengen Information System (SIS) 246, 255 sea borders 247, 309; see also border, maritime Seasonal Workers Directive 111 settler societies 52, 162 SIS see Schengen Information System Slovenia, transit country 453 smuggling 201, 203, 241, 245–247, 296 social media 83, 89, 138, 279, 454 Southern Europe: emigration 39; familialisation of care 365, 367; PRR parties 120; regularisation programmes 5, 57, 204 Spain: care workers 363; civic tests 169; media coverage 87; migration policy 53–54 state sovereignty 51, 99, 101, 104; constrained 100 sub-state nations 31, 34 superdiversity 455 sustainable return 263–264, 266–269, 271 Sweden: radical right 454; refugees labour market participation 352; resettled refugees 358; strong regulator 323; welfare state 377 Syrian refugees 7; resettlement of 311, 391 TCNs see third country nationals technologies 63, 76–77, 218, 241, 244, 246 Temporary Protection 307–308 terrorism 23, 76, 86, 118, 150, 216, 220, 278; cross-border 241; home-grown 146; risks 201, 232; see also counter-terrorism terrorist attacks 150, 227, 252, 278, 309; in Paris 86 third country nationals (TCNs) 102–103

trade unions 120, 369–372 trafficking 202–203, 206, 241, 370, 404–405; victims of 217–218, 264; see also countertrafficking transit migration 205–206 transnationalism 55, 161, 421 Treaty of Amsterdam (Amsterdam Treaty) 19, 21–22, 30, 101, 202, 294, 315, 318 Treaty of Rome 18 Tunisia 55 Turkey 1951 Refugee Convention 350; emigrants 42; EU deal 23, 102, 310, 394, 427; preferential trade agreement 173; Refugee Facility 391, 397; Syrian refugees 311, 344–345, 352; transit migration in 206; visa facilitation 253; visa liberalisation 395–397 UK see United Kingdom Ukraine 190, 205–206, 221, 384–386, 406–407, 415–416; temporary workers in Poland 74 unaccompanied minors 204, 217, 257, 267, 298 UNDESA 441–443 undocumented migrants 61, 63, 129, 139, 368, 428; activism of 370; return 425–426; see also irregular migrants UNHCR see United Nations High Commissioner for Refugees United Kingdom: anti-deportation campaigns 264; AVR (R) 265, 426; Brexit 105; care worker permit 369; data sources (on migration), 73, 445; deprivation of citizenship 150; effects of immigration 343, 377; emigrants 43, 45; ethno-nationalist distinctions 73; family migration 183; forced marriages 184; media 84, 87; opposed to majority voting 20; opt-outs 21–22; refugee protection (history) 284, 286; refugee support 358; the role of courts in 104 United Nations High Commissioner for Refugees (UNHCR) 72, 283–284, 288–290, 303–304, 330–332, 356–357, 404–405 United Nations Relief and Rehabilitation Administration (UNRRA) 287–288, 290 United States of America 330; integration 121; Mexican border 62, 242 UNRRA see United Nations Relief and Rehabilitation Administration US see United States of America values 2, 58, 62, 191, 312, 411, 416, 453; liberal 55–56, 58, 106, 167 venue-shopping 110, 115, 317 VFAs see Visa Facilitation Agreements Visa Facilitation Agreements (VFAs) 391–393, 414 visa liberalisation 40, 253, 258, 396–397, 410–411; and domestic change 410–413; suspension mechanism 415

465

Index Visa Liberalisation Action Plans (VLAPs) 412–413, 415, 435 visa policy 6, 410; common 410; common ‘visa list’ 19–20; cross-national differences 65, 435 visa processing companies (VPCs) 245 Visegrad group 276, 333 VLAPs see Visa Liberalisation Action Plans

welfare: dependency 5, 375–376, 378, 442; magnet hypothesis 375; regimes 190, 276, 365, 374–375, 379; and security 420, 422, 425–426, 429 welfare state 115, 122, 351, 363, 365, 374–379 Western Balkans 415; asylum seekers 294; regional mobility 41; risk analysis network 228–229, 236; visa liberalisation 412, 414

466