Transnational Law of Human Mobility: Voluntary Migration in Brazil, Germany, the Mercosul and the EU [1st ed.] 9783030466077, 9783030466084

Table of contents :
Front Matter ....Pages i-xii
Introduction (Emília Lana de Freitas Castro)....Pages 1-9
On the Legal Nature of Migration Law in Brazil, Germany and the European Union (Emília Lana de Freitas Castro)....Pages 11-37
Historical Aspects of Migration in Brazil and in Germany (Emília Lana de Freitas Castro)....Pages 39-65
The Legal Framework of Migration in Brazil and in MERCOSUL (Emília Lana de Freitas Castro)....Pages 67-125
The Legal and Normative Framework on Migration in Germany and in the European Union (Emília Lana de Freitas Castro)....Pages 127-229
Conclusions and Recommendations (Emília Lana de Freitas Castro)....Pages 231-242

Citation preview

Emília Lana de Freitas Castro

Transnational Law of Human Mobility Voluntary Migration in Brazil, Germany, the Mercosul and the EU

Transnational Law of Human Mobility

Emília Lana de Freitas Castro

Transnational Law of Human Mobility Voluntary Migration in Brazil, Germany, the Mercosul and the EU

Emília Lana de Freitas Castro Berlin, Germany

ISBN 978-3-030-46607-7 ISBN 978-3-030-46608-4 https://doi.org/10.1007/978-3-030-46608-4

(eBook)

© Springer Nature Switzerland AG 2020 This work is subject to copyright. All rights are reserved by the Publisher, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. The publisher, the authors, and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or the editors give a warranty, expressed or implied, with respect to the material contained herein or for any errors or omissions that may have been made. The publisher remains neutral with regard to jurisdictional claims in published maps and institutional affiliations. This Springer imprint is published by the registered company Springer Nature Switzerland AG. The registered company address is: Gewerbestrasse 11, 6330 Cham, Switzerland

To all humans on the move To my parents

Acknowledgements

When I took the decision of writing my PhD in Germany, I did not anticipate that I would need the support of so many people and legal entities. I must first thank CAPES—Coordenação de Aperfeiçoamento de Pessoal de Nível Superior (Coordination for the Improvement of Higher Education Personnel), a foundation from the Brazilian Ministry of Education, which supported me financially during these three years and nine months of research in Germany. I would not have the means to be here, undergoing research and improving my academic skills, if my country would not be standing behind me. In this context, I would also like to thank Germany, this amazing country, for providing me with the most important, but also the toughest days of my academic and personal life. It has been a pleasure to be a student of Universität Hamburg and to profit from the excellent structure that has enabled me to reach my highest academic level to date. In this sense, I am most grateful to Universität Hamburg, its infrastructures, its libraries, its most friendly staff, and to the Faculty of Law, in which I spent many years researching and sculpting the present work. Equally important for the accomplishment of this task is my supervisor, Prof. Dr. Markus Kotzur. He has continuously helped and supported me with all of my academic and personal decisions, even when I was not believing I could make it. His knowledge, his motivation to work and teach, as well as his brilliant way of dealing with stressful and important decisions on a daily basis, inspire me and I admire him as a Professor and as a human being. Thank you for your patience and for your partnership in our common projects. I would like to thank my parents, Elisabeth and Roberto, not only for enduring the distance between Rio de Janeiro and Hamburg but also for their unconditional love, which I can feel from the longest distance. Without your support, I could not be standing here making this dream come true. I love you more than any words could say, and I have missed you every single day of my stay in Germany. I do not have words which can express my feelings, gratitude, and deep love for Simon Kaulich for his support, understanding, and for being such an amazing person in my life in the last and next years. I would like to say thank you to Augusto and Cynthia, for vii

viii

Acknowledgements

supporting our family during my absence and for being happy for my achievements on the other side of the Atlantic: I will always be there for you. Ely Xavier’s extraordinary intellectual capacity has also enlightened me with regard to structuring and conceptualizing the present work. I thank him not only for his uncountable inputs, which expressed the brilliant Professor he is, but also especially for his friendship that I hope will always guide me in my best and worst days. I would also like to express my gratitude to Reem for having the courage to read this dissertation and for helping me with the English and to Tomás who helped me with the citations and with the formatting of this work. I also owe this further step in my academic career to my two former supervisors during my undergraduate studies and my master’s degree at the Universidade do Estado do Rio de Janeiro (UERJ), Prof. Dr. Carmen Tiburcio and Prof. Dr. Marilda Rosado. You, UERJ, and Brazilian academia brilliantly prepared me for my doctoral studies and I am very proud of the way we do research in our country. Thank you for showing me the beauty in International Law and for cheering for me and giving me great opportunities during my academic life so far. Raphael Vasconcelos, Sergio Marques, Orlando Guterres, Bruno Almeida (in memoriam), and Deo Campos also belong to the Brazilian academic team I am extremely proud of and whom I am most grateful to; your academic discussions and friendship were essential for conducting this research. I am also grateful to Prof. Dr. Nora Markard for her extremely necessary inputs to this dissertation and for kindly showing me the path of Migration Law in Germany; thank you for your support before, during, and after the writing of this work. For my adventures as a book editor and conference organizer, I thank Prof. Dr. Ibrahim Sirkeci and Sezgi Sözen; it has been a hardworking and cheerful journey with you both. I would also like to express my most sincere gratitude to all people who are not necessarily directly responsible for giving me strength during my PhD, but who have supported me during this hard but extremely rewarding time in Hamburg: for the members and students of the Albrecht Mendelssohn Bartholdy Graduate School of Law (AMBSL); for the Zentral Bibliothek Recht (ZBR) staff; and for each and every single unknown student sitting next to me on the 4th floor “Altbau” at the library during these years. I am also thankful I found people on this corner of the world, which I have the pleasure to now call friends and who were essential for me to keep the sanity during these years and also the passion for the subject of migration: Barbara, Reem, Pipitsa, Claudia, Tomás, Giuseppe, Fabia, Joel, Annalisa, Renata, Tobias, Dinah, Mira, Lisa, Ana, Shino, Michael, Rafael, Alsu, Leandro, Steffen, Martyna, Anne, Victor, Cordula, Manuel, and Daniel. I miss my days in Hamburg with you! My sincere thanks also to the members of Grupo de Discussão de Temas Brasileiros (GDTB), to the Brazilian community in Hamburg, and to all my beloved friends and family members, who are too many to cite here, that I left in Brazil and from whom I missed so many birthdays, marriages, time shared on weekends, sunny days by the sea and with whom I have shared so many beautiful moments before living on this side of the world.

Contents

1

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 8

2

On the Legal Nature of Migration Law in Brazil, Germany and the European Union . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.1 Defining Migration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.1.1 Voluntary and Forced Migration: A Reflection . . . . . . . . . . 2.2 The Legal Nature of Migration Law in Brazil . . . . . . . . . . . . . . . . 2.3 The Legal Nature of Migration Law in the European Union . . . . . . 2.3.1 The Legal Nature of Migration Law in Germany . . . . . . . . 2.4 Preliminary Conclusions: The Taxonomy of Migration Law . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

11 12 16 22 26 29 31 33

3

4

Historical Aspects of Migration in Brazil and in Germany . . . . . . . . 3.1 Migration in Brazil: Background and Current Trends . . . . . . . . . . 3.1.1 The Brazilian Diaspora . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.1.2 Current Trends Regarding Migration in Brazil: What Comes Next? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.2 Migration in Germany: Backgrounds and Current Trends . . . . . . . 3.2.1 Germany and the Migration Movements After the Second World War . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.2.2 Migration in Germany Under the European Union Panorama and the Recent “Migration Crisis” . . . . . . . . . . . 3.3 Preliminary Conclusions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

39 39 45

The Legal Framework of Migration in Brazil and in MERCOSUL . . 4.1 The Legal Framework of Migration of Non-MERCOSUL Citizens in Brazil . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.1.1 The Immigrant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.1.2 The Emigrant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.1.3 The Border Resident . . . . . . . . . . . . . . . . . . . . . . . . . . . .

67

46 50 54 59 62 63

68 73 74 76 ix

x

Contents

4.1.4 4.1.5 4.1.6

The Visitor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . The Stateless Person . . . . . . . . . . . . . . . . . . . . . . . . . . . Principles and Guarantees According to Brazil’s New Migration Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.1.7 The Entry and Stay of Immigrants Into/Within Brazilian Territory Under Brazilian Law . . . . . . . . . . . . . . . . . . . . 4.1.8 The Compulsory Exit of Migrants Under Brazilian Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.2 Understanding MERCOSUL’s Structure and Its Relation to the Movement of People Within the Regional Integration System . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.3 The Legal Framework of Migration in MERCOSUL . . . . . . . . . . 4.4 Preliminary Conclusions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

6

The Legal and Normative Framework on Migration in Germany and in the European Union . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.1 Germany’s Legal Framework on Migration and Its Responsiveness to the Free Movement of Third-Country Nationals Within the Country . . . . . . . . . . . . . . . . . . . . . . . . . . 5.1.1 The Rights of Third-Country Nationals Who Reside in Germany for Educational Purposes . . . . . . . . . . . . . . . . . 5.1.2 The Rights of Residence of Third-Country Nationals Who Reside in Germany for Economic Purposes . . . . . . . 5.1.3 Termination of Stay . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.2 European Union Law and the Free Movement of People . . . . . . . 5.2.1 The European Union Citizenship and the Freedom of Migration of EU Citizens Within the EU Borders . . . . . 5.2.2 The European Union’s Third Country Nationals Approach on Migration . . . . . . . . . . . . . . . . . . . . . . . . . 5.3 Preliminary Conclusions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

. .

78 78

.

81

.

84

.

90

. 96 . 103 . 118 . 121 . 127

. 128 . 142 . 146 . 153 . 164 . 164 . 199 . 223 . 225

Conclusions and Recommendations . . . . . . . . . . . . . . . . . . . . . . . . . 6.1 Transnational Law of Human Mobility . . . . . . . . . . . . . . . . . . . . . 6.2 Two Historical Backgrounds on Migration That Lead to Two Different Legal Approaches . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.3 A Brazilian Legal Framework on Migration That Strikes Out from the Regulations on MERCOSUL Level . . . . . . . . . . . . . . . . 6.4 An Administrative Law Approach on German Migration and a Selective EU Migration Law . . . . . . . . . . . . . . . . . . . . . . . . 6.5 Final Comparisons and Outlooks . . . . . . . . . . . . . . . . . . . . . . . . . Reference . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

231 231 232 233 238 240 242

Abbreviations

AFSJ CARICOM CMC GMC CCM CNIg CONARE CTPS CPF/MF DNRC FCEE ECJ EEAS EEC EU FEM FRG FTAA GATT GC GDR IBGE

Area of Freedom, Security, and Justice Caribbean Community and Common Market Common Market Council/Conselho do Mercado Comum Common Market Group/Grupo Mercado Comum Trade Commission of MERCOSUL/Comissão de Comércio do MERCOSUL Conselho Nacional de Imigração/National Immigration Council Comitê Nacional para os Refugiados/National Committee for Refugees Carteira de Trabalho e Previdência Social/Brazilian Work and Social Security Registry Cadastro de Pessoas Físicas do Ministério da Fazenda/Brazilian Individual Taxpayers Register National Department of Commercial Registration/ Departamento Nacional de Registro do Comércio Economic and Social Consultative Forum/Foro Consultivo Econômico e Social European Court of Justice European External Action Service European Economic Community European Union Foro Especializado Migratório do Mercosul e Estados Associados Federal Republic of Germany Free Trade Area of the Americas General Agreement on Tariffs and Trade Geneva Convention German Democratic Republic Instituto Brasileiro de Geografia e Estatística xi

xii

IOM/OIM LAFTA LAIA/ALADI MERCOSUL/MERCOSUR OAU PARLASUL/PARLASUR PIL POP RMI STF STJ TCN TEC TFEU TPR UN UNASUL/UNASUR/USAN

UNHCR USA WTO WW II WSG No. 10

Abbreviations

International Organization for Migration/ Organización Internacional para las Migraciones Latin America Free Trade Association Latin American Integration Association/Associação Latino-Americana de Integração Mercado Comum do Sul/Mercado Común del Sur/ Ñemby Ñemuha Organisation of African Unity Parlamento del MERCOSUR/Parlamento do MERCOSUL/MERCOSUL’s Parliament Private International Law Protocolo de Ouro Preto/Protocol of Ouro Preto Meeting of MERCOSUL Internal Affairs Ministers/ Reunião de Ministros de Interior Supremo Tribunal Federal/Brazilian Supreme Federal Court Superior Tribunal de Justiça/Brazilian Superior Court of Justice Third country national Tarifa Externa Comum/Common External Tariff Treaty on the Functioning of the European Union Tribunal Permanente de Revisão/Tribunal Permanente de Revisión United Nations União de Nações Sul-Americanas/Unión de Naciones Suramericanas/Union of South American Nations The Office of the United Nations High Commissioner for Refugees United States of America World Trade Organization World War II Working Subgroup No. 10 of the Common Market Group on Labor Affairs, Employment, and Social Security

Chapter 1

Introduction

Even though it is not recognized as such in the global economy in general, migration figures as one of the constitutive processes of globalization in today’s world (Sassen 1998, p. xxi). According to this reality, as McGrew (1992) argues, globalization concerns processes acting on a global scale, which go across the national boundaries by integrating and connecting communities and organizations in new combinations of space-time, turning the interconnected world into a reality and an experience widely intertwined. The new time and space features, resulting from compression of distances and time scales, encompass the most important aspects of globalization, exerting an effect on cultural identities. In this context, the understanding of time/ space compression and identity is influenced by a multi-connected world, leading to the decentralization and the displacement of individuals, influencing the way they act, think, and communicate. The new pace of society is confirmed by Marques’ words: You may name as you please the phenomenon of market opening, bringing together people and companies of different nationalities and domiciles, massification of communications, consumption and transport, whether it is globalization or simply postmodernity, the internationalization of private life is the reality nowadays. [. . .] There are not any longer those who do not know the strength of lex mercatoria, the franchise contract of international brands, the international banking and financial system, or students of the Faculties of Law, Economics, and International Relations who are not curious as to get to know more on these phenomena on the international scene (Marques 2008, pp. 321–323).

Czaika and de Haas, while analyzing the context of surging migration, also correlate globalization and migration, stating that the first has facilitated the latter: The core idea is that growing social, economic, and cultural interconnectedness epitomized by the concept of “globalization” has facilitated migration in ever greater numbers between an increasingly diverse and geographically distant array of destination and origin countries. Other factors that seem to explain surging migration are increasing international and domestic inequalities, the persistent demand for high- and low-skilled migrant labor in the segmented labor markets of wealthy societies, and the lack of opportunities, population growth, oppression, and violent conflict in developing countries (Czaika and de Haas 2015, pp. 285–286). © Springer Nature Switzerland AG 2020 E. Lana de Freitas Castro, Transnational Law of Human Mobility, https://doi.org/10.1007/978-3-030-46608-4_1

1

2

1 Introduction

Given this outlook, the phenomenon of globalization and the consequent expansion of international trade and capital flows encourage States to strive so as to meet the requirements of the New International Economic Order.1 Using this economic discourse, Bauman problematizes mobility, affirming that it “climbs to the rank of the uppermost among the coveted values – and the freedom to move, perpetually a scarce and unequally distributed commodity, fast becomes the main stratifying factor of our late-modern or postmodern times” (Bauman 1998, p. 2). In this sense, the economic, administrative and legislative strategies of States shall be consistent with the intense pace of movement of markets and people, avoiding stratification of society caused by migration. However, at the same time in which legal reforms have been created in order to facilitate capital flow, there has also been a lack of legal innovation when it comes to people’s movement around the globe (Sassen 1998, p. xxi). After all, as Dauvergne affirms, “the mobility of people, or in economists’ terms ‘labor’, is never assumed to be as great as that of capital within the globalized economy” (Dauvergne 2008, p. 43). It is in this context of bringing individuals and people together that one realizes that the displacement of human contingents from one country to another, in order to have better living conditions, opportunities and work is a social phenomenon, which seems to have been intensified with the advent of globalization (Pereira 2006, p. 85). Migration can be considered as a parameter of globalization and it should be seen in a complementary way to other parameters of globalization, such as the movement of goods, services, information, money and investment (Trachtman 2009, p. 10). In Oltmer’s words, “(. . .) migrations contribute to transformation processes as a result of globalization – they have altered the makeup of populations, and they have modified economic and social structures, religious practices, and forms of artistic expression” (Oltmer 2015, p. 54). Therefore, migration has functioned as a key factor in globalization in the last centuries and it is likely to remain so in the future. In fact, since the origin of the Homo sapiens species until today, humanity has been expanding over the entire planet. Nevertheless, over the course of world history humans “have gradually invented new technologies that have accelerated [. . .] migrations” (Fisher 2014, p. xxi).2 Still, if one compares migration at the very beginning of humanity with the migration the world faces nowadays, there is a considerable difference to be mentioned. At that time, the world was not intensely populated, but now immigrants have to increasingly adapt themselves to the new community they arrive in or expel communities from their new home territory (or be expelled by the communities already living there) (Fisher 2014, p. xii). Also, modern migration differs from migration in the beginning of world history, as society is now organized (grossly expressed) into nation-states and such states retain the control over the mobility of its population, requiring passports, visas and—consequently—

1 In order to better understand the origins and developments of the New International Economic Order, see Golub (2013). 2 In this sense, see also: Goldin et al. (2010, pp. 11–12).

1 Introduction

3

controlling their borders (Hirst and Thompson 1999, p. 257). Whether it is due to “voluntary” or “forced migration”,3 the fact is that the movement of people from one country to another or from one region to another can occur temporarily or permanently. However, these movements have always brought along deep changes in the lives of migrants in their home countries, and certainly, in the receiving States (Pereira 2006, p. 85). These changes to the movement of people have also occurred in the largest SouthAmerican country, namely Brazil. The origins of the modern Brazilian population can be traced back to the encounter of native Brazilians with Portuguese colonizers (Sampaio 2004, p. 13). In this context, the settlement of people in Brazil mainly occurred through immigration of the Portuguese, as well as of the people being brought from Africa, due to the Atlantic slave trade.4 However, nowadays, Brazil receives people from different nations. These newcomers see in Brazil the opportunity to undertake their businesses, complete or start their studies, or even escape from dire situations in their home countries. It is of great importance to note that, for decades throughout the twentieth century, Brazilians had envisioned better life choices and livelihood abroad, and Brazil has been considered as a country of emigration.5 However, more recently, Brazil became a pole of attraction for migration flows, which results in the reception of immigrants both of low education and less skilled labor and skilled workers. Moreover, the European debt crisis in 2009 (Reusens and Croux 2017, p. 108) changed the profile of immigrants arriving in Latin America and the Caribbean and Brazil follows this trend of receiving European immigrants, at least until 2014/ 2015.6 It is in this context, that there is a pressing need to develop the legal and public policy pillars in order to receive these various categories of migrants in Brazil. For the first time in history, Brazil has begun to consistently receive individuals and

3

An in-depth analysis of both forced and voluntary migrations will be presented in Chap. 2 of the present work. 4 It is important to note that we are not affirming that slave trade corresponds to an immigration movement to Brazil, as it is explained in Chap. 3 of this work. 5 It is important to note that the flexibility of the job market, production restructuring, complete internationalization of national economies, and high interest rates imposed by the macro-economic adjustment according to IMF guidelines, among other factors, have contributed to the destruction of jobs and stagnation of the economy in developing countries such as Brazil, see: Pereira (2006, p. 87). 6 According to the report released by the International Organization for Migration, there is a trend of increased migration flows from the European Union (EU) to Latin America and the Caribbean (LAC) region. At the same time, there is a decrease in the movement of people in the other direction. In this regard, see: Organización Internacional para las Migraciones (2015). Also, a Eurocentric point of view towards migration makes one forget that “the largest migration flows currently take place within less developed global regions and within the area of the former Soviet Union” (Straubhaar 2015, p. 238).

4

1 Introduction

migratory groups, including at its borders.7 A situation that has become increasingly similar to the one faced by industrialized countries in Central and Western Europe, in particular Germany. Today, taking the lead as one of the strongest economies in Europe, Germany has immigration policies that attract skilled and highly qualified people, not just from the European Union (EU), but also from third-countries. Within the context of the EU, there is a legal framework, which may serve as inspiration, but also, as a negative role model for the reconceptualization of political and legal intentions of the Brazilian State with regards to the reception of migrants in the country. Under this context, the new Brazilian Migration Law, which entered into force in November 2017, and its related policies should try to bring protection to immigrants, to promote the integration between Brazilians and immigrants, and to maintain a balance as regards the opportunities made available, whether for nationals, or for immigrants. This new law aims to transform the idea of being a foreigner into being a migrant and, therefore, having their dignity and their human rights guaranteed. In this respect, we8 will carry out an in-depth study of Brazil’s and MERCOSUL’s9 legal framework on migration, as well as their projects and aspirations aiming at the consecration of a more conscious immigration policy compatible with the most recent needs of the Brazilian State. In this sense, the study of Comparative Law will be necessary in the present work. We will analyze the level of protection granted to immigrants regarding their liberty of entry and stay into/ within Brazil and MERCOSUL, using Germany’s and the EU’s legal framework on migration as a parameter of comparison. After all, we believe that comparison gives jurists the opportunity to find the best solution for juridical problems faced in distinctive juridical orders (Kötz and Zweigert 1996, p. 14). The first goal of the present study, which is outlined in the second chapter, is to problematize the definitions that are given to the phenomenon of migration, exploring its various nuances, as well as understanding the legal nature of Migration Law in the contexts of Brazil, Germany, and the EU. A conclusion about the taxonomy of Migration Law is suggested putting the rights of migrants in a transnational law context. It is important to mention that the goals of the present work relate to

7 A recent inflow of Haitian nationals to Brazil is already considered to be the greatest migration wave to Brazil in the last 100 years and around 80 Haitians cross the Brazilian Amazon borders every day, see: Godoy (2011). Not to forget the recent Venezuelan influx into Brazil, which is also mentioned in the course of this study. 8 The use of the of first-person plural pronouns in this work intends to evoke a sense of commonality and rapport between the writer and the reader. 9 We have decided to refer to the Southern Common Market with the abbreviation MERCOSUL (Mercado Comum do Sul), once, in the present work, the Portuguese version of the name of the common market shall prevail rather than the Spanish one (Mercado Común del Sur— MERCOSUR).

1 Introduction

5

voluntary migration: international refugee law and related aspects are not included in the analysis of the present work.10 The third chapter presents the history of migratory movements in Brazil and Germany and, at this point, we can already draw the first differences between the current migration law and policies of both countries. These historical comparisons are considered as an essential element for the understanding of the migration cultures of Brazil and Germany, and, consequently, in MERCOSUL and the EU, respectively, opening space for an easier development and comprehension of a new migration law for that South-American country. The fourth chapter is dedicated to the study of the legal framework on migration in Brazil and in MERCOSUL. Firstly, we provide an in-depth study of the new Brazilian Migration Law. The chapter begins with a presentation of whom the new law addresses, followed by an analysis of its extensive principles and guarantees. Additionally, in order to understand the level of protection provided to immigrants in Brazil, we analyze and comment on the Brazilian Migration Law’s provisions on immigrants’ rights of entry and settlement, which includes provisions on border policies and visa requirements. Also, the provisions on mandatory departure of a non-Brazilian from the national territory are presented and analyzed (namely, the measures of repatriation, expulsion, and deportation), so that we can understand the legal limitations of an immigrant within Brazilian territory. In order to identify to what extent the national legal framework influences the supranational framework and/or vice versa, we present, still under the context of the fourth chapter of this work, MERCOSUL’s general structure. Thereafter, we present the legal framework on migration existent in MERCOSUL, exposing its limited accomplishments under the scope of MERCOSUL law, as well its approach to both MERCOSUL citizens and non-MERCOSUL citizens in respect of the possibilities they have regarding their freedom of movement. The fifth chapter draws a parallel with the fourth one, and, therefore, its structure is similar to the one contained in Chap. 4. Chapter 5 firstly explores the general rules of entry of immigrants of a third-country into German territory (Sect. 5.1). Following that, attending to a methodological cut-off (which is discussed at the beginning of the chapter), the subchapter separates the analysis into: (a) the rights of third-country nationals who reside in Germany for educational purposes; and (b) the rights of residence of third-country nationals who reside in Germany for economic purposes. We further analyze the third-country nationals’ termination of stay within the country, establishing the rules for expulsion, removal, and deportation. Section 5.2 presents an analysis of EU law on the freedom of movement. In this regard, we relate EU citizenship to the freedom of migration of EU citizens within the EU, specifying its general rules on entry and stay of EU citizens and their family members within the Union. Restrictions on the right of free movement and residence on grounds of

10

This cut-off is substantiated in Sect. 2.1 of this book. Despite this methodological cut-off, it is fundamental to understand the differences between voluntary and forced migration, so that it can be possible to rethink both migration concepts, as we will see in the next chapter.

6

1 Introduction

public policy, public security or public health are also discussed, as well as the protection guaranteed under EU Law against the expulsion, and the possibility of compulsory termination of stay, of EU citizens on the grounds of abuse of rights or fraud (Sect. 5.2.1). The following Sect. 5.2.2 details the EU’s approach on migration directed to third country nationals, which includes not only a brief explanation on the migration agreements between the EU and third countries, but also a selection of the EU’s Directive on migration that rule the entry, stay and compulsory termination of stay of third-country nationals, namely: (a) Council Directive 2003/109/EC of 25 November 2003 concerning the status of third-country nationals who are long-term residents; (b) Council Directive 2009/50/EC of 25 May 2009 on the conditions of entry and residence of third-country nationals for the purposes of highly qualified employment; (c) Directive 2011/98/ΕC of the European Parliament and of the Council of 13 December 2011 on a single application procedure for a single permit for thirdcountry nationals to reside and work in the territory of a Member State and on a common set of rights for third-country workers legally residing in a Member State; and (d) Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals. All these Directives conform to the methodological cut-off used in Sect. 5.1. It is relevant to mention that both Chaps. 4 and 5 offer a synthesis of the most important legal elements inherent to the scope of the legal framework which is presented. In this sense, the reader shall not hope for a commentary on every single provision of the laws and acts presented, but he/she should be aware of the rights and conditions granted/imposed on to immigrants that play an important role on immigrants’ freedom of entry and stay in Brazil/ MERCOSUL and in Germany/EU. This work will consist of legal hermeneutics, comparative research method,11 and existing scholarly legal research.12 The existing scholarly legal research will contribute to develop the work’s research questions, as well as the concepts and definitions involved in the research study. For the legal hermeneutics, primary legal materials will be used, such as norms on constitutional and migration law from Brazil, migration laws from Germany, as well as primary and secondary legal sources of the EU that relate to migration. We will also make use of reports drafted by governments, international organizations and statutory bodies, as well as case law. Secondary legal materials such as textbooks, commentaries, law and social science articles, case commentaries, opinions and newspapers will also be used as sources to comprehend underlying legal reasoning of primary legal texts. 11 In the context of the present work, this relates to the comparison of national—and supranational— legal systems, putting aside the academic discussions on whether comparative law should be considered as a science or as a mere method of study and research (or only even a technique). For both sides of this discussion, see: Örücü (2007, p. 62). Jürgen Basedown, for instance, considers comparative law as a method, not as a science, see: Basedow (2014). 12 We based our research methods on Corten (2009) and Goodrich (1985). Other insightful references are: Baude and Sachs (2017).

1 Introduction

7

The comparative research method will consist of the micro- and macrocomparisons (Kötz and Zweigert 1996) arising from the doctrinal research that will be carried out on Brazilian and MERCOSUL laws on migration and the German and European legal framework on migration.13 The conclusions taken from these comparative methods should be used in order to reflect upon the following research questions: • Which is the most suitable taxonomy (or legal nature) to be given to migration law, considering the differences between the legal orders selected for this work? • Which legal framework on migration (Brazilian, under the context of MERCOSUL law or German with the EU law background) provides greater protections of the freedom of movement? • How effective is Brazil’s new migration law in terms of freedom of movement (solely considering the facilitation of entering and staying into/within the country)? • Is it possible to refer to a MERCOSUL legal framework on migration? The final step and main goal of the work aims to suggest a model of public policy and immigration law to the Brazilian State, contributing to Brazil’s inclusion in the list of countries that attract a foreign working force, and provide these people with equal legal treatment. It is necessary to envision, for Brazil, legal and political strategies, informed by mistakes and successes from foreign legal systems, and long-established immigration policies defined for some years now, so that it is possible to develop strategies and goals that correlate to the reality in which Brazil finds itself. The study of foreign legal systems provides the lawmaker in Brazil with a greater legal foundation,14 so that it is possible to draw a parallel and better organize the immigration policies in Brazil; criticize the country’s new migration law; and propose common public policies and legal instruments taking effect within MERCOSUL.15

13

The comparison of national legal systems is the most common geographical level of comparison, according to Van Hoeckel (2015, p. 3). 14 Considering that Comparative Law has, as one of its goals, the improvement of one’s own legal system, as systematically summarized in Van Hoeckel (2015, pp. 2–3). 15 It is situating the object of study in comparative work that the legal scholar can innovate in his/her research, if he/she considers “a more diverse array of countries and legal systems, devoting more attention to the causes and consequences of different national and regional approaches, and drawing on social sciences methods”, see: Roberts et al. (2015, p. 474). These thoughts are also brought by Peter Häberle (1992, pp. 1034–1035), when he affirms that, because the world moves together, different nations and countries share the same problems and, therefore, it is more likely that these problems could be solved in the same way around the globe. In this context, the acquisition from (at a first moment) foreign legal and cultural elements (Rezeption) might serve for the solution of a problem of a specific legal order.

8

1 Introduction

References Basedow J (2014) Comparative law and its clients. Am J Comp Law 62(4):821–857 Baude W, Sachs SE (2017) The law of interpretation. Harv Law Rev 130(4):1079–1147 Bauman Z (1998) Globalization. The human consequences. Columbia University Press, New York Corten O (2009) Méthodologie du droit international public. Éditions de l’Université de Bruxelles, Brussels Czaika M, de Haas H (2015) The globalization of migration: has the world become more migratory? Int Migr Rev 48(2):283–323 Dauvergne C (2008) Making people illegal: what globalization means for migration and law. Cambridge University Press, New York Fisher MH (2014) Migration: a world history. Oxford University Press, New York Godoy GG (2011) O caso dos haitianos no Brasil e a via da proteção humanitária complementar. In: Ramos A, Rodrigues G, de Almeida GA (eds) 60 anos de ACNUR: perspectivas de futuro. Editora CL-A Cultural, São Paulo, pp 45–68 Goldin I, Cameron G, Balarajan M (2010) Exceptional people: how migration shaped our world and will define our future. Princeton University Press, Princeton Golub PS (2013) From the new international economic order to the G20: how the ‘global South’ is restructuring world capitalism from within. Third World Q 34(6):1000–1015 Goodrich P (1985) Legal hermeneutics. An essay on precedent and interpretation. Liverpool Law Rev 7(2):99–155 Häberle P (1992) Theorieelemente eines allgemeinen juristischen Rezeptionsmodells. Juristenzeitung 47(21):1033–1043 Hirst P, Thompson G (1999) Globalization in question: the international economy and the possibilities of governance. Polity Press, Malden Kötz H, Zweigert K (1996) Einführung in die Rechtsvergleichung: auf dem Gebiete des Privatrechts. Mohr, Tübingen Marques CL (2008) Ensaio para uma introdução ao direito internacional privado. In: Direito CAM, Trindade AAC, Pereira ACA (eds) Novas perspectivas do direito internacional contemporâneo: estudos em homenagem ao professor Celso D. De Albuquerque Mello. Renovar, Rio de Janeiro, pp 319–350 McGrew A (1992) A global society. In: Hall S, Held D, McGrew A (eds) Modernity and its futures. Polity Press/Open University Press, Cambridge, pp 61–116 Oltmer J (2015) Migration is historically normal. Europe as source and destination of global population movements. In: Arcarazo DA, Wiesbrock A (eds) Global migration – old assumptions, new dynamics, Volume I. Praeger, an Imprint of ABC-CLIO, Santa Barbara, pp 31–58 Organización Internacional para las Migraciones – OIM (2015) Dinámicas Migratorias en América Latina y el Caribe (ALC), y entre ALC y la Unión Europea. Available via http://publications. iom.int/system/files/pdf/dinamicas_migratorias_2015.pdf Örücü E (2007) Developing comparative law. In: Örücü E, Nelken D (eds) Comparative law: a handbook. Hart Publishing, Oxford, pp 43–66 Pereira ACA (2006) Os direitos do trabalhador imigrante ilegal à luz da Opinião Consultiva 18/03 da Corte Interamericana de Direitos Humanos – CIDH. In: Barroso LR, Tiburcio C (eds) O Direito Internacional Contemporâneo – Estudos em Homenagem ao Professor Jacob Dolinger. Renovar, Rio de Janeiro, pp 85–109 Reusens P, Croux C (2017) Sovereign credit rating determinants: a comparison before and after the European crisis. J Bank Financ 77:108–121 Roberts A, Stephan PB, Verdier P-H, Versteeg M (2015) Comparative international law: framing the field. Am J Int Law 109(3):467–474 Sampaio AM (2004) Brasil, síntese da evolução social. Scortecci, São Paulo Sassen S (1998) Globalization and its discontents: essays on the new mobility of people and money. New Press, New York

References

9

Straubhaar T (2015) Towards a European refugee policy. Intereconomics 50(5):238–239 Trachtman JP (2009) The international law of economic migration: toward the fourth freedom. W.E. Upjohn Institute for Employment Research, Kalamazoo. Available via https://research. upjohn.org/up_press/14/ Van Hoeckel M (2015) Methodology of comparative legal research. Law Method pp 1–35

Chapter 2

On the Legal Nature of Migration Law in Brazil, Germany and the European Union

In this second chapter, we will conduct an analysis explaining how Migration Law is seen, both under Brazilian Law and EU Law, including some elements of German Migration Law. The main goal of this chapter is to identify—through Comparative Law—the differences regarding treatment given to the subject in these juridical orders. The reason for this comparison relies on the fact that, depending on the juridical order in which Migration Law is inserted, several names and different types of conduct can be attributed to the same social phenomenon, namely migration. This chapter tries to prove that, depending on the classification given to Migration Law, the phenomenon of migration can be seen from a perspective which—not always— fits to the necessities of migrants, but to the necessities of the host States. Before presenting these differences,—and in order to better understand why they exist—, it is important to first define in this second chapter what migration is and the characteristics of the people who are considered to be migrants. These initial explanations will be followed by a common basic distinction made between forced migrants and voluntary migrants. Special attention must be paid to this distinction, since the structure and the comprehension of this work depend on it. Lastly, this explanation will be followed by an in depth analysis of the legal nature of Migration Law under Brazilian and EU law, with references to some aspects of German law. Law, wherever it is developed or applied, possesses certain features. These features give law its very nature, or essence. We presume for the initial discussion that law is not the only normative domain in our culture, and we affirm that “morality, religion, social conventions, etiquette, and so on, also guide human conduct in many ways which are similar to law” (Marmor and Sarch 2015, p. 1). It is for this reason, that in order to understand how different legal orders understand what migration is, the “understanding of the nature of law consists in an explanation of how law differs from these similar normative domains, how it interacts with them, and whether its intelligibility depends on other normative orders, like morality or social conventions”. The analysis of the nature of the law starts in this chapter and continues in Chap. 3, where the historical basis of this analysis will be established.

© Springer Nature Switzerland AG 2020 E. Lana de Freitas Castro, Transnational Law of Human Mobility, https://doi.org/10.1007/978-3-030-46608-4_2

11

12

2.1

2 On the Legal Nature of Migration Law in Brazil, Germany and the European Union

Defining Migration

According to Clarke, the term migration identifies the movement of people and populations between States and continents (Clarke 2011, p. 1). The United Nations (UN) has defined migration together with the definition of “international migrants”: according to the UN, international migrants are “any person who changes his or her country of usual residence” (United Nations Statistics Division 1998, p. 9). Furthermore, Massey and Taylor (2004, p. 383) agree that, in order to define a “move”, it is necessary to fix a line, so that it can be crossed. According to the authors, where this line should be crossed is a matter of social and political construction (and, according to our perspective, it is also a matter of legal construction).1 Massey and Taylor do not consider international migration as the simple crossing of international boundaries, as this crossing depends on the actor (who is crossing,) and also on the intention of the actor. Indeed, if a person crosses the border into another country and does not have the intention of living there, this person can be considered, for instance, a tourist. This definition presented by the authors can be connected to the definition of the term foreigner. Being a foreigner means that a particular person does not have a specific nationality (Lopes 2009, p. 31). According to Carmen Tiburcio, this means that all those who do not2 have a specific nationality (in Tiburcio’s explanation, the Brazilian nationality) are to be considered as foreigners within the respective country (Tiburcio 2001, p. 1).3 In this sense, according to Garcia, it seems to be correct to affirm that the differentiation between a national and a non-national of a particular country represents the grounds for the establishment of the rights of foreigners/ immigrants, but it does not mean that this differentiation represents a discrimination against foreigners/immigrants (Garcia 2015, p. 154). On the other hand, migrants are those who move from one country to another, either if one refers both for immigration or emigration. Immigrants are, therefore, foreigners, but not all foreigners are automatically considered migrants or immigrants. Taking once again the example presented above, tourists fall under the category “foreigners”, but are not immigrants, since they have their permanent residence in a country which is not the one they are currently in. Whether or not they are considered as an immigrant, the fact is, that affixing the title “foreigner” to an individual has clear negative connotations. The intention of the expression is to exclude those people from the native people. This exclusion, which can at times also

1

The social, political and legal constructions of migration are also analyzed and discussed by Bast (2011). According to the author, the legal migration management concurs with various perspectives, including cultural and economic ones. 2 The same excluding explanation works for the definition of foreigner under German Law as well, see: Renner (1998, p. 73), as well as § 2 (1) of the German Residence Act, and Hailbronner and Herzog-Schmidt (2016, p. 11). 3 Following Tiburcio’s definition, see: Cahali (2011, p. 26).

2.1 Defining Migration

13

convey a feeling of hate, is, to some extent, being explored by jurists4 but mainly by social scientists.5 According to Kälin and Künzli, movements of populations might be voluntary or forced ones and they might occur inside a country’s territory or across the borders of a country. Considering this description, both authors affirm that four different groups of people—because of different characteristics—need protection from both Human Rights and Migration Law: (1) Menschen, die sich frei entscheiden, ihren Wohnort aus ökonomischen, familiären oder anderen Gründen zu verlassen, und sich an einem anderen Ort im eigenen Land niederlassen; (2) Migrantinnen und Migranten, die aus den gleichen Gründen in ein anderes Land ziehen; (3) Binnenvertriebene, d. h. Menschen, die zum Verlassen ihres Wohnortes gezwungen werden und in einem andern Teil des eigenen Landes Zuflucht suchen [. . .]; und (4) Flüchtlinge, die gezwungen sind, im Ausland Schutz vor Verfolgung oder Vertreibung zu finden (Kälin and Künzli 2008, p. 577).6

Thomas Straubhaar dedicates his work On the Economics of International Labor Migration to the international migration of a labor force and he defines it as a spatial, social and non-forced movement of people from one country to another (as well as from one social system to another). According to Straubhaar (1988, p. 47), these migrants leave their countries for economic reasons and they intend to stay abroad for more than 12 months. This 12-month period is considered for the sake of having an accurate measure of global bilateral flows (Skeldon 2013, p. 2), and it is the same period of time the UN uses to define the long-term migrant. As stated by the UN in the Recommendations on Statistics of International Migration Revision (1998, p. 10), the long-term migrant is: A person who moves to a country other than that of his or her usual residence for a period of at least a year (12 months), so that the country of destination effectively becomes his or her new country of usual residence. From the perspective of the country of departure the person

4

Foreignness in migration law has been discussed and conceptualized by approaching securitization, irregular migration and international crime matters, see: Rubio-Marín (2014, p. 2). See also: Dauvergne (2008) and Pallida (2011). About criminalization of immigrants, see also: Fan (2014). 5 Bill Ong Hing presents a multi-stepped approach towards immigrants and goes beyond this abovementioned negative approach, in which the immigrant is firstly labeled a problem through demonization. Afterwards, the immigrant is dehumanized, until at last his or her actions can be criminalized, see Hing (1998, p. 81). Based on Norbert Elias’s studies, Rosalina Campos uses the sociology of migration to explain the rejection of the outsiders. Campos presents different grades of foreignness, which depend on the power relations between the host society and the group of foreigners, see: Campos (2011). See also: Booth (1997). 6 A free translation of this extract into English has been made by the author: (1) persons who freely choose to leave their place of residence for economic, family or other reasons, and settle in another region, in another place, in their own country; (2) migrants who, for the same reasons stated above, move to another country; (3) internally displaced people, i.e., people who are compelled to leave their place/region of residence and seek refuge in another part of their own country [...]; and (4) refugees, who are forced to find protection abroad because they suffer from persecution or expulsion.

14

2 On the Legal Nature of Migration Law in Brazil, Germany and the European Union will be a long-term emigrant and from that of the country of arrival the person will be a longterm immigrant.

The UN continues its explanation and defines the short-term migrant as: A person who moves to a country other than that of his or her usual residence for a period of at least 3 months but less than a year (12 months) except in cases where the movement to that country is for purposes of recreation, holiday, visits to friends and relatives, business, medical treatment or religious pilgrimage. For purposes of international migration statistics, the country of usual residence of short-term migrants is considered to be the country of destination during the period they spend in it.

These time and circumstance limitations defined by the UN might be suitable for the situation of many migrants. However, there are some situations which might be not included in the UN’s definition. One could think about, for example, an international student from China who decides to spend 6–12 months in a German University. This student cannot be considered either a long-term migrant (because he or she is still within the 12-month period), or even a short-term migrant (as he or she does not fulfill the purposes indicated by the UN). Nevertheless, this student will have to satisfy all obligations as an immigrant in Germany, obtaining the specific visa, making his or her resident registration at the city he or she lives in, for example, opening a bank account and acquiring health insurance. Therefore, both the UN’s time and circumstance metrics contained within the definitions should be considered as purely illustrative ones, used solely for the sake of helping the UN to provide international migrations statistics.7 In fact, international migration is otherwise conventionally “defined as a form of human mobility that fulfills a space-based (that is, crossing state borders) and a time-based (usually, one year of residency) condition” (Recchi 2015, p. 149). After all, migrants are human beings moved by passion, by natural, economic and social circumstances and, therefore, it is difficult for researchers to identify whom should be given the status of a long-term or a short-term migrant. Arbitrary distinctions do not always help when defining and studying migration, especially because human mobility can be both positively and negatively-oriented, as Sirkeci and Cohen (2016, pp. 382–383) brilliantly state: Migration, when approached and defined in rational terms ignores the conflictive decisionmaking that frames mobility, the dynamic nature of human movements and overlooks the nature of mobility (including the length of a sojourn) which can be for shorter periods and circular and reproduced and repeated over time. Emphasising rational decision-making builds a rosy and hopeful story and assumes that human mobility is always positivelyoriented. In other words, a traditional approach to migration argues that movers are in search of ‘a better life’ seeking to improve their economic status, advance their studies, nurture intellectual needs and gain freedoms. Stated briefly, people move towards (and want to move towards) better opportunities. Much contemporary mobility follows a rather less positive

Hanlon and Vicino (2014, p. 5) draw attention to the fact that “in many cases the official statistics on migration do not include people who have entered a foreign country without the required legal documentation”. That means that many official statistics might not have registered the so-called illegal or irregular migrants.

7

2.1 Defining Migration

15

model, where it [. . .] is often driven by conflict. People move away from difficulties, challenges, conflicts, oppression and restraints that range from the small and immediate to the large and long term.

Although all the definitions presented above indicate different perspectives, it is not difficult to understand that international migration has to do with movements of people and that migration “is only one specific, politically [and legal] shaped subset of all the possible manifestations of human mobility” (Recchi 2015, p. 149). Also, international migration “is often seen as the main process leading to the redistribution of population” and has become a key component for population growth in some regions of the world (Zlotnik 2004, p. 33). Therefore, in this context, even though migration also occurs within the territory of one country, this work is specifically devoted to the issues of international migration. For this reason, the term “migration” in this work is to be understood and used in the sense of “international migration”.8 Migration is a complex phenomenon that comprises political, legal and economic aspects. Besides, the term migration also implies multiple options (e.g., one-directional and multiple, temporary or long-term, voluntary or forced, free or unfree) (Harzig and Hoerder 2009, p. 3). Whether it represents an economic and social problem or an economic advantage, both the host country and the country of origin can consider the phenomenon of migration from several perspectives (Veloso Leão 2013, p. 97). For this reason, different countries have different attitudes towards migration and develop different migration policies. Therefore, countries of destination, and countries of origin, of migrants adopt laws and regulations that are often intended not only for protecting immigrants, but also for limiting and regulating their lives in the host country. These limitations are usually much more stringent and stricter than, for example, those regulating international investment law or international trade law, such as those related to the sale of certain goods in a specific region or country. In this context, according to Massey and Taylor (2004, p. 377), “the flows of goods, capital, commodities, and information are accompanied by a rising volume of immigration”. Therefore, at the same time, emigration is “rooted in structural transformations that follow countries’ incorporation into the global market economy”. In this regard, both authors identify that there is a contradiction, that connects massive economic power and control of migration: “today’s core economic powers all seek to impose controls and limitations on the movement of people.” Massey and Taylor complete their arguments by stating that the deregulation and globalization of all markets, except for the labor market, are characteristics of today’s global economy. Whether this scheme will survive in the next years, and how this apparent contradiction will be resolved is one of the biggest questions of this century (Massey and Taylor 2004, p. 378).

Throughout this work, the term “migration”, combined with the expression “movement of people” will be the two most used words to refer to human mobility.

8

16

2 On the Legal Nature of Migration Law in Brazil, Germany and the European Union

Due to all these contradictions and difficulties that involve the study of migration, we agree with Sirkeci and Cohen, when they describe migration as a process capable of generating its own dynamics (Sirkeci and Cohen 2016, p. 383). Migration has to be rethought, and migrants have to be considered not as people that receive a specific typology or classification, but as human beings that, due to a complexity of facts, acts, and conditions decide to move from their place of origin (human mobility). Some of these typologies and classifications are exposed and discussed in the following section.

2.1.1

Voluntary and Forced Migration: A Reflection

One of the most considered contemporary classifications (or types) of migration refers to voluntary migration and forced (or involuntary) migration. These distinctions could be also given another name: labor migrants, referring to voluntary migrants, and refugees, for involuntary—or forced—migrants (Lucassen and Lucassen 1997, p. 14). As an involuntary or forced migrant, one is forced to leave their country or a region inside their country due to some “sort of conflict, persecution, or environmental disaster, such as drought, flood, or famine” (Hanlon and Vicino 2014, p. 5).9 On the other hand, the voluntary migrant has other reasons to emigrate, which are, in the majority of the cases, economic motivations (Lucassen and Lucassen 1997, p. 14). Voluntary migrants choose, therefore, to improve their life situation. It is also relevant to mention that, besides the voluntary and forced migration dichotomy, one should bear in mind that there has been a wide range of typologies of population movements that have been developed by researchers, covering a complex mix of regular and irregular flows of people. Bedford (2012) relates regular flows with labor migration, family reunion and humanitarian migration, while irregular flows are related to voluntary undocumented movement across international borders, people smuggling and human trafficking. It is important to note, in this case, that Bedford refers to regular and irregular flows, and not to regular or irregular legal status of migrants in a particular territory. In Bedford’s opinion: A common distinction made within regular international migration flows is between the short-term tourist and visitor movements on the one hand, and longer-term temporary work, business and residential migration on the other. Within the irregular flows, voluntary

9

Still, this definition cannot be considered as a complete one, because it is necessary to distinguish natural disasters from environmental disasters. According to the United Nations International Strategy for Disaster Reduction (UNISDR), a natural hazard refers to a “natural process or phenomenon that may cause loss of life, injury or other health impacts, property damage, loss of livelihoods and services, social and economic disruption, or environmental damage.”, see UNISDR (2009, p. 20). Therefore, the environmental disaster may occur either as the result of a natural disaster or as a disaster caused by a human being. Both of them result in a negative impact in the environment.

2.1 Defining Migration

17

undocumented migration (both short-term and long-term movement without appropriate documentation) and people smuggling are usually distinguished from involuntary movements associated with human trafficking (Bedford 2012, p. 20).

Bedford’s explanation also engages with the expressions voluntary and forced migration, adding to the analysis an element which not only qualifies the reasons a person starts his/her migration journey, but which also relates to the period of time a person stays in a particular territory. In the beginning of this chapter, we have collected some definitions on the term migration that have considered this voluntary aspect human mobility brings. Therefore, it is necessary to address the definition of forced migration, mostly defining the term refugee. Even though forced migration is not the focus of this work, it is fundamental to understand it, so that it can be possible to rethink both “voluntary” and “forced” migration concepts. The United Nations Convention relating to the Status of Refugees of 28 July 1951 is the most important international instrument for the protection of forced migrants, specifically of refugees. It has been supplemented and revised by the New York Protocol of 31 January 1967. Article 1A (2) of the Geneva Convention on Refugees of 1951 defines a refugee as any person who: [. . .] owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.10

Before the New York Protocol of 1967, the Convention was dedicated to all those people who feared persecution, “As a result of events occurring before 1 January 1951”. The reason for this temporal limitation is the number of refugees that has increased since the beginning of the Second World War (Tiburcio and Albuquerque 2015, p. 229).11 The first draft of the Geneva Convention was aimed at helping refugees and displaced people from this period of time, and, also, people who were fleeing specifically from the European continent.12 According to Kälin and Künzli, the term refugee in the Geneva Convention comprises three elements: (1) a stay outside the country of origin of the persecuted person; (2) the breach of relations between the applicant of asylum and the persecuting State; and (3) well-founded fear of persecution for racist, religious, political or other relevant reasons (Kälin and Künzli 2008, p. 565). It is also important to note that acquiring the refugee status does not merely rely on the will of the individual of breaking off relations with the persecuting State. This 10 The entire text of the Geneva Convention, including its protocol, is available via http://www. unhcr.org/3b66c2aa10. 11 According to Betts (2010, p. 12), the refugee protection through the Geneva Convention should be understood as a succession of the Second World War. 12 The 1951 Convention has given the State Parties the possibility of limiting their obligations under the Convention to those who would become refugees as a result of events occurring in Europe (the so-called geographical limitation). In order to learn more about the development of the definition of refugee under the Geneva Convention, see: Marugg (1990, p. 149) and Morticelli et al. (2016).

18

2 On the Legal Nature of Migration Law in Brazil, Germany and the European Union

severance of relations also depends on other objective elements that arise, either from real persecutions or from imminent persecutions (Kälin and Künzli 2008, p. 565).13 Although the text of the Convention does not explicitly mention that people fleeing from wars14 are also regarded as refugees, the law should also consider them as people with refugee status, having the right of being protected under refugee law and international law. People who are not individually persecuted, but who escape from any danger arising from any armed conflict, should also receive the refugee status (Kälin and Künzli 2008, p. 566). In this context, however, Markard (2012, p. 126) believes that the applicability of the Geneva Convention to war situations is controversial—it is not rare that people who have to leave their countries because of armed conflicts are granted only humanitarian protection. However, according to the Organisation of African Unity (OAU) Convention Governing the Specific Aspects of Refugee Problems in Africa (1969), an armed conflict can lead to the recognition of an individual as a refugee (Markard 2012, p. 126). Mello (2002, pp. 1053–1054) affirms that the OAU Convention holds the most complete definition of the term refugee. The already mentioned OAU convention adopted the definition of the Geneva Convention, and added the idea that people fleeing from events that seriously disturb public order in a domicile country are also to be considered a refugee: The term “refugee” shall also apply to every person who, owing to external aggression, occupation, foreign domination or events seriously disturbing public order in either part or the whole of his country of origin or nationality, is compelled to leave his place of habitual residence in order to seek refuge in another place outside his country of origin or nationality.15

This definition is deficient, since it does not include either internally displaced people, or people fleeing from natural catastrophes16 and poverty (Nuscheler 2004, p. 195). In 1984 the Cartagena Declaration considered an extended definition of refugees. The declaration goes beyond the definition of the Geneva Convention and also mentions other aspects which have not been mentioned either by the Geneva Convention or by the African Refugee Convention. The Latin American instrument

13

In this sense, see also: Tiburcio and Albuquerque (2015, p. 230). The present work does not focus on the definition or on the explanation for the well-founded fear of being persecuted. Besides the above-cited authors, there are also many other ones who give further details on this issue, such as: Hailbronner (2014, p. 380) and Marx (2012, p. 12). 14 Including civil wars. 15 Art. 1 (2) of the Organisation of African Unity Convention Governing the Specific Aspects of Refugee Problems in Africa (adopted by the Assembly of Heads of State and Government at its Sixth Ordinary Session, in Addis-Ababa, 10 Sept 1969) is available via http://www.unhcr.org/ about-us/background/45dc1a682/oau-convention-governing-specific-aspects-refugee-problemsafrica-adopted.html. 16 The massive flow of Haitians to Brazil can be considered as an interesting case involving people fleeing from natural catastrophes. In order to explore more this subject, see: Godoy (2011).

2.1 Defining Migration

19

takes into account, for example, people who suffer internal conflicts or massive violations of human rights in their home countries: Hence the definition or concept of a refugee to be recommended for use in the region is one which, in addition to containing the elements of the 1951 Convention and the 1967 Protocol, includes among refugees persons who have fled their country because their lives, safety or freedom have been threatened by generalized violence, foreign aggression, internal conflicts, massive violation of human rights or other circumstances which have seriously disturbed public order.17

The solution to the refugee crisis of the 1970s and 1980s in Central America18 was the motivation behind the draft of the Cartagena Declaration, which was drawn up by ten Central and South American countries. Although the text of the declaration describes an extended definition of the concept of refugee, this instrument is not legally binding, as it does not have the legal quality of a convention (Nuscheler 2004, p. 195)19 and constitutes mere soft law (Sartoretto 2018, p. 143). Although both regional instruments play an important role in the interpretation of the term refugee, the Geneva Convention still remains one of the most important and best-known instruments for the protection of refugees. In this context, it is important to note that each of the contracting States of the Geneva Convention ultimately decides for itself who is a refugee within the meaning of the GC (Hathaway 1991, p. 14). Furthermore, it can be said that most States have not extended the concept of refugee in the way either of the Cartagena Declaration or of the African Refugee Convention did (Markard 2012, p. 127).20

17 The whole text of the Cartagena Declaration is available via http://www.unhcr.de/fileadmin/ rechtsinfos/fluechtlingsrecht/1_international/1_1_voelkerrecht/1_1_5/FR_int_vr_Cart-Declara tion.pdf. 18 In order to study this crisis in the Central America during that time, see: Marugg (1990, pp. 176–179). 19 In this sense also: Jones (2004, p. 97) and Gillard (2005, p. 45). 20 Even though the Cartagena Declaration lacks binding power, it offered guidelines for practice and some of its recommendations were taken into consideration in some Latin American States. This was, for example, the case of Brazil. Art. 1, III, of Law n. 9.474, from July 22nd 1997 (Brazilian Refugee Law) has defined a refugee as a person who has suffered a massive violation of human rights:

Art. 1
Será reconhecido como refugiado todo indivíduo que: I - devido a fundados temores de perseguição por motivos de raça, religião, nacionalidade, grupo social ou opiniões políticas encontre-se fora de seu país de nacionalidade e não possa ou não queira acolherse à proteção de tal país; II - não tendo nacionalidade e estando fora do país onde antes teve sua residência habitual, não possa ou não queira regressar a ele, em função das circunstâncias descritas no inciso anterior; III - devido a grave e generalizada violação de direitos humanos, é obrigado a deixar seu país de nacionalidade para buscar refúgio em outro país. The Brazilian Refugee Law is available in Portuguese via http://www.planalto.gov.br/ccivil_03/ Leis/L9474.htm. Further information about the definition criteria of Brazil, see: Jubilut (2006, p. 26).

20

2 On the Legal Nature of Migration Law in Brazil, Germany and the European Union

The prerogative of the States to determine who is considered to be a refugee or not is possible because the Geneva Convention governs the rights and obligations of anyone who fulfils the definition of a refugee, regardless of the person being recognized as such or not by each state. Further, the State Parties of the Convention understand that the decision to receive refugees in their territory is their sovereign right (Hailbronner 2014, p. 380). In this sense, the question arises: is there really a definition of the term “refugee” under international law? Nuscheler even considers that refugees could be a nothingness in Public International Law (or, as he states in German “ein völkerrechtliches Nichts”), since the Geneva Convention did not abolish the principle of sovereignty, which means that each State decides who will be considered as a refugee and whom will be given asylum (Nuscheler 2004, p. 196).21 Whatever conceptual broadness of the term refugee is currently of great importance, as there are repeated situations which make the recognition of refugees and displaced persons more difficult. People have never been as mobile as they are now. The current refugee crisis is an opportunity to expand the terms and studies on refugee law and to create among States an international burden-sharing22 and cooperation for the protection of these people.23 According to estimations from the United Nations (2013, p. 1), around 3.2% of the world’s population live in countries that are not their countries of origin, and there is a trend that this percentage will increase. This number includes not only refugees, but also other categories of migrants, showing that refugees and migrants can be perceived in a conjoint way, as they are all people who left from one place to another. This shows that the often basic distinction made between voluntary and forced migration should be revised, since migration movements are “in many senses mixed, and at all stages of the migration process, not just on the journey” (Schuster 2016, p. 297). Categorically labelling migrant streams can be a very difficult task: even though the motivations of refugees and labor migrants might differ, “the disparities are less obvious in practice than is commonly assumed” (Lucassen and Lucassen 1997, p. 14). An example of this variable obviousness of migrants’ characteristics could be extracted from one of the meetings of the Executive Committee of the UNHCR,

21

This does not mean, however, that we ignore the fact that the legally binding nature of the Geneva Convention’s non-refoulement clause (Art. 33) serves as a crucial limit on a state’s sovereign decision on the entry of a foreigner. 22 However, Hathaway and Neve (1997, p. 117) believe that “Governments have regularly endorsed the importance of international solidarity and burden sharing, but collectivized efforts to date have been ad hoc and usually insufficient”. 23 In fact, in October 2016, the UNHCR officially committed to further strengthening international cooperation and solidarity and equitable responsibility and burden sharing in relation to refugee protection, see the Conclusion of the Executive Committee No. 112(LXVII) 2016 on international cooperation from a protection and solutions perspective, 6 October 2016, available via http://www. refworld.org/docid/57f7b5f74.html.

2.1 Defining Migration

21

which took place in October 2016, in which it was suggested that the protection and the solutions for refugees could be carried out through other strategies. These strategies include, for example, giving protection to refugees by means of elaborating labor mobility schemes: 11. Calls for States to consider creating, expanding or facilitating access to complementary and sustainable pathways to protection and solutions for refugees, in cooperation with relevant partners, including the private sector, where appropriate, including through humanitarian admission or transfer, family reunification, skilled migration, labour24 mobility schemes, scholarships, and education mobility schemes.25

This discourse of the UNHCR reflect the idea that migration motivations can be mixed, “as those who flee conflict, human rights abuses and persecution will also be leaving economic instability and poverty” (Schuster 2016, p. 297). Schuster sets out a clear overview of these movements, showing that it becomes difficult to distinguish the characteristics between migrants, asylum seekers and refugees. After all, once refugees enter the territory of the State which is able to give them protection and save their lives, they will, also, want to start to make a living in that new country: [. . .] those who come in search of employment may be excluded from work or education in their country of origin because of their gender, religion or ethnicity. Those who leave looking for work may be forced to move again because of discrimination. In the countries where people settle, those who arrive as refugees will join labour migrants in the competition for accommodation, education and employment (Schuster 2016, p. 297).

These various possibilities relate to the fact that people are mobile and—more than this—their projects and life goals also change, depending on the situation humans might have to deal with.26 These new approaches, new necessities or new situations might happen by the time these mobile people arrive in a safe country, when they decide to move to another country owing to the lack of job opportunities, or even when they suffer from another type of persecution in the country where they once felt safe. Disentangling refugees from the migrant category can ignore that all of them must be treated as human beings who are in search of alternative perspectives of life and in pursuit of happiness. “Migrants are important actors in the dynamic reconfigurations of law at the different localities, with which they are involved” (Benda-Beckmann et al. 2004, p. 19). Therefore, more than in any other era, it is time that refugee law and migration law reshape one another, creating equal opportunities for all movers to acquire all protection needed (either because they have been persecuted due to religious reasons

24

American English is the English adopted in the present work. British spelling, grammar and vocabulary are used solely in cases in which a source written in British English is directly quoted. 25 Conclusion of the Executive Committee No. 112(LXVII) 2016 on international cooperation from a protection and solutions perspective, 6 October 2016, available via http://www.refworld.org/ docid/57f7b5f74.html. 26 On the historical explanation of the differentiations made between refugee and migrants, see: Long (2013).

22

2 On the Legal Nature of Migration Law in Brazil, Germany and the European Union

in their country of origin or because, as a qualified immigrant from a developing country, it is hard to make a living in a cold and distant global north). Going beyond the change of the localities mentioned in the paragraph above, it could be stated that movers can change the whole paradigm of migration law nowadays. A transnational human mobility law could be envisaged, which could guarantee all rights of people involved in these transboundary movements. The transnationalization and the cosmopolitanism27 of the (still) called Migration Law will be discussed in the following sections of this chapter. Taking into consideration the focused nature of this work, it was necessary to clarify the distinction between voluntary migration and forced migration (migration law and refugee law, respectively). As a matter of didactic, and remaining within the remit of the research questions, forced migrants—in its majority, refugees—will not feature within the scope of the analysis conducted throughout this work, especially because States have developed different policies and legal approaches for “forced” migrants.28

2.2

The Legal Nature of Migration Law in Brazil

In order to understand the way Migration Law is structured in Brazil, it is of paramount importance to identify who is the foreigner—or the migrant—under Brazilian law.29 As it is known, the settlement of people in Brazil mainly occurred through immigration of the Portuguese, as well as of the people being brought from Africa, due to the Atlantic slave trade.30 Now, however, Brazil receives people from many different nations. These newcomers see in Brazil the opportunity to undertake their businesses, complete or start their studies, or even escape from dire situations in their home countries. According to Brazil’s last census, there were 431,319 foreigners living in Brazil in 2010 (IBGE 2012, p. 255). In comparison to the census of 2000 (510,067 foreigners), the number of foreigners in the country has decreased (IBGE 2003,

27

On cosmopolitanism and cosmopolitan right, see: Kleingeld (2012). One of the reasons for that is that the Geneva Convention relating to the Status of Refugees does not present a fixed and common definition of “forced” migrants/refugees and cannot be homogenously applied by all State Parties of the Convention. For more details, see: Morticelli et al. (2018). 29 Even though we do not agree with the terminology “foreigner”, as explained in Sect. 2.1 above, this expression will be used whenever the Brazilian legislation will be cited, as it is a translation from the word in Portuguese estrangeiro, used nowadays in many of the Brazilian laws that are being cited in the present work. 30 It is estimated that between 1550 and 1855, around four million people have been brought from Africa to Brazilian territory, see: Fausto (2002, p. 51). More details regarding the background of migration in Brazil will be given in Chap. 3. 28

2.2 The Legal Nature of Migration Law in Brazil

23

p. 74). However, the last census did not include neither the massive influx of Haitians Brazil has been receiving since end 2010, nor the current global refugee crisis, which Brazil—in a smaller proportion—is also experiencing (Oliveira 2015, p. 51). In Brazil, Migration Law is classified and studied under the name of “the legal status of aliens”,31 which—as stated above—corresponds to: (1) the entry of the foreigner within Brazilian territory; (2) the rights of the foreigners within Brazilian territory; and (3) the compulsory departure of a foreigner from the Brazilian territory (Tiburcio 2015; Dolinger and Tiburcio 2016, pp. 165–241). The legal nature of the legal status of aliens is differently understood among Brazilian international law experts, and, therefore, it can be considered controversial (Cahali 2011, p. 28). We will take into consideration in this book some works of the most significant authors of Brazilian Private International Law, in order to try to draw a clear line regarding the subject. Dolinger and Tiburcio (2016, p. 1), Valladão (1974, pp. 44–45), Bevilaqua,32 and Octavio (1942, p. 20)33 classify the legal status of aliens as one of the objects of study of Private International Law. In this context, it is important to mention the American Code of Private International Law, widely known as Bustamante Code (Código Bustamante), which expresses in articles 1 and 2 some considerations regarding the rights of foreigners. It is important to mention that the word “foreigners”, under the terms of the Code, does not refer to all foreigners, but to individuals who are nationals from any of the contracting States of the Bustamante Code.34 While the first article guarantees that foreigners will have the same civil rights as the nationals in the territory of all contracting States, article 2 allows foreigners who belong to any of the contracting States the access to the same individual rights as the nationals in the territory of all contracting States.35 In this context, the Code sets forth a limitation to its application

31

In Portuguese: condição jurídica do estrangeiro, see: Tiburcio (2015, p. 9). Bevilaqua agrees with Antoine Pillet’s doctrine, see: Bevilaqua (1934, p. 122). 33 Octavio understands that conflicts of law may arise due to the fact that foreigners are able to exercise rights inside a particular territory. 34 The entire text of the Bustamante Code both in Spanish and Portuguese is available via http:// legis.senado.gov.br/legislacao/ListaTextoSigen.action?norma¼435904&id¼14421668& idBinario¼15693455&mime¼application/rtf. 35 Artículo 1. Los extranjeros que pertenezean [sic] a cualquiera de los Estados contratantes gozan, en el territorio de los demás, de los mismos derechos civiles que se concedan a los nacionales. Cada Estado contratante puede, por razones de orden público, rehusar o subordinar a condiciones especiales el ejercicio de ciertos derechos civiles a los nacionales de los demás y cualquiera de esos Estados puede, en tales casos, rehusar o subordinar a condiciones especiales el mismo ejercicio a los nacionales del primero. Artículo 2. Los extranjeros que pertenezcan a cualquira [sic] de los Estados contratantes gozarán asimismo en el territorio de los demás de garantías individuales idénticas a las de los nacionales, salvo las limitaciones que en cada uno establezean [sic] la Constitución y las leyes. 32

24

2 On the Legal Nature of Migration Law in Brazil, Germany and the European Union

based on the nationality of the Parties involved in a Private International Law case, which is, according to Samtleben, a typical limitation used by Latin American countries in interstate treaties, i.e., in Public International Law treaties (Samtleben 1979, pp. 142–144).36 Under this context, once the Bustamante Code provides equal civil rights and individual and social rights for nationals and foreigners it can be stated that the contracting States of the Bustamante Code considered the rights of foreigners as an object of study of Private International Law. Even though the Bustamante Code is not a binding instrument among the American States,37 it is still considered as a source of International Law and meets the purposes of this research.38 Luiz Araújo however, views this issue from a different perspective: according to him, the legal status of aliens is an object of national law, and it should be carried out by each State in which the foreigner finds himself or herself (Araújo 1990, p. 72). The author states that the legal status of aliens is a precondition, which should be taken into consideration before solving a conflict of laws’ issue. Similarly, Strenger views the subject of the legal status of aliens as one of the reflections of Private International Law (Strenger 1978, pp. 28–29). However, he believes that the legal status of aliens does not comprise one of its objects. For Strenger, the legal status of aliens is the state of being a foreigner, as opposed to the state of being a national. Strenger considers, then, the legal status of aliens as part of national law. Tenório also does not consider the legal status of aliens as an object of Private International Law, but as a purpose of Private International Law, i.e., as one of the instruments to be used (when necessary) in solving conflict of laws issues (Tenório 1970, p. 14). Nadia de Araujo discards the study of the legal status of aliens through deciding to adopt the Anglo-Saxon approach to Private International Law. So, she concentrates her studies in the conflict of laws and jurisdictions, and also in the recognition of foreign judgments (Araujo 2016, pos. 535). Rechsteiner considers the norms that comprise the legal status of aliens as public law norms that do not solve the conflict of laws in the space (Rechsteiner 2012, pp. 58–59). Although Rechsteiner does not consider the topic an object of study of Private International Law, he still thinks it is important to teach it in Private International Law lessons, for the sake of didactics. Also, Cahali shares the same

Las garantías individuales idénticas no se extienden, salvo disposición especial de la legislación interior, al desempeño de funciones públicas, al derecho de sufragio y a otros derechos políticos. 36 Samtleben’s work carefully analyses the Bustamante Code and provides a complete Private International Law approach on its text. 37 Argentina, Colombia, Mexico, Paraguay, the United States and Uruguay did not approve the Bustamante Code. The Commonwealth of the Bahamas deposited an instrument of accession to the Bustamante Code on 23 January 2017, albeit with reservations, and the Code came into force in the Bahamas within 30 days after the adhesion. For more details, see: http://www.oas.org/en/sla/dil/ newsletter_%20Inter-American_Treaties_Bustamante_Code_Bahamas_Jan-2017.html. 38 For a full explanation about the Bustamante Code, see Dolinger and Tiburcio (2016, pp. 65–69).

2.2 The Legal Nature of Migration Law in Brazil

25

thoughts and does not consider the nature given to this topic as a relevant one (Cahali 2011, p. 28). It must be stated that, in Dolinger’s opinion, even though some Brazilian authors do not accept the wide spectrum of Private International Law’s object, this opinion is held by the most outstanding authors, such as Clovis Bevilaqua, in the first part of the twentieth century and Haroldo Valladão in the second part thereof, and it is being followed in practically the whole modern Brazilian literature as well as in the curricula of law schools, and so it is classified in the publications that report on case law (Dolinger 2012, p. 30).

In this context, it is believed that understanding the nature of Migration Law in Brazil is essential for the further development of the present work. Bringing to light the study of Private International Law in Brazil also helps to understand why “the legal status of aliens” is taught in Law Schools as a Private International Law subject, even though some Brazilian jurists, as seen above, do not consider Migration Law as an object of study of Private International Law. Brazil follows the French orientation39 regarding the scope of Private International Law,40 which includes (1) nationality; (2) legal status of foreigners; (3) conflict of laws; (4) and conflict of jurisdictions (Dolinger 2012, p. 30). The most relevant argument for this classification in the present work appears to be the one from Batiffol and Lagarde (1993, p. 16), in which they affirm that the legal status of foreigners refers to rules that prohibit foreigners to have access to some of the rights that nationals normally have. For Batiffol and Lagarde this differentiation is a matter of international law, as neither civil law nor, for instance, commercial law, could alone approach these law differentiations made between nationals and foreigners. Moreover, these French internationalists understand that the legal status of foreigners follows conflict of laws issues, which justify that both subjects should be approached by the same field of study. These thoughts are followed by a simple example: by the time a foreigner wants to exert his or her rights in the territory of a country, it is necessary to determine the applicable law to exert that right, which is a

39

In accordance with these four main scopes of Private International Law, see: Batiffol and Lagarde (1993, p. 17), Mayer and Heuzé (2014, p. 675) and Pillet (1903, p. 27). Some French authors prefer to exclude nationality and the legal status of foreigners from Private International Law studies, even though they recognize these four objects as traditional ones. This is the case of Horatia Muir Watt and Dominique Bureau. Both internationalists considered these two topics too instable and decided not to include them in their Private International Law studies, as there is no consensus about their legal nature in many countries. In this regard, see: Bureau and Muir Watt (2010, p. 4). Nevertheless, it must be stated that the classification of the subject as a Private International Law object of study is also controversial even in France. See this discussion and some decisions about it in: Audit and d’Avout (2013, p. 63). 40 André de Carvalho Ramos also refers to the French school of Private International Law as the one which works with the broadest concept, including the study of: conflict of laws; international jurisdiction; recognition and enforcement of foreign legal judgements; nationality; and the legal status of the foreigners. The author mentions that this enlarged object of study of Private International Law is the one used by the Faculty of Law of the University of São Paulo (USP), Brazil. For further information, see: Ramos (2018, p. 24).

26

2 On the Legal Nature of Migration Law in Brazil, Germany and the European Union

matter of conflict of laws and, therefore, purely a Private International Law matter. At the same time, if that foreigner is allowed a particular right that he or she wishes to exercise, this is a matter of the legal status of foreigners in a particular country and, in the opinion of Batiffol and Lagarde, it should also be classified as a Private International Law issue (Batiffol and Lagarde 1993, p. 16).41 Haroldo Valladão, for example, reinforces these abovementioned approaches, when he affirms that the majority of the cases in Private International Law are involving these people that do not belong to the juridical system of a particular country, namely the foreigners. The juridical norms of a particular forum, which concede or deny in total, or in part, some rights to foreigners, are Private International Law norms, as they deal with, for instance, legal capacity and the enjoyment of rights of foreigners in the territory of the host country, and other issues that might be also related to the conflict of laws (Valladão 1974, pp. 370–371). Therefore, it is possible to understand the logic behind the theory of the legal status of foreigners (which can also be referred to as Migration Law) being classified as Private International Law in Brazil; even though this might not be the taxonomy given by some European jurists, as will be observed in the following lines.

2.3

The Legal Nature of Migration Law in the European Union

This subchapter provides an explanation of the legal nature of Migration Law according to both EU law and German law. The legal nature will be the focus of this chapter, so that a full explanation of German and EU law general provisions will be outlined in Chap. 5 of the present work. Under the context of EU law, one can observe supranational law provisions, which refer to the labor market integration—seeking the free movement of workers in the region—as well as to internal migration, and to international migration. The supranational law of the EU allows Member States to maintain their national regulatory and public policy prerogatives, in such a way that each Member State may classify Migration Law in accordance with its own juridical tradition. An 41 Panamanian Law has brought the same thought. In 2015, in the Republic of Panama, a Private International Law Code came into force. With 163 articles, the Code regulates the Panamanian nationality as a connecting factor, allowing, therefore, the Panamanian judge to consider the nationality of the person when determining the applicable law in a Private International Law case. The Panamanian Private International Law Code shall also govern the legal status of the foreigners in relation to the rules which regulate the status of the emigrants of the Republic of Panama, i.e., the rights which have been acquired outside the territory of the Republic of Panama. Additionally, the Code of Private International Law, in its article 29, also considers the rights of the foreigners within Panamanian territory. According to the Code, Panamanians and foreigners should be treated equally. See: Código de Derecho Internacional Privado de la República de Panamá. Gaceta Oficial Digital, CXIV/ N
27885-A, available via https://www.gacetaoficial.gob.pa/ pdfTemp/27885_A/GacetaNo_27885a_20151008.pdf.

2.3 The Legal Nature of Migration Law in the European Union

27

important observation is that migration is not only controlled by EU and national provision, but also by Public International Law, especially when it comes to refugee issues (Reinisch et al. 2013, p. 307). As Moses affirms (2011, p. 377): [. . .] the rules affecting migration between EU Member States are different from the rules affecting migration between non Member States and Member States. Worse, those rules can change from member state to member state, and from one type of migration to another. For this reason, it is rather optimistic, even misleading, to speak of an EU migration regime. What we have is a complex, multilevel geometry of political authority governing European migration.

The EU, often seen by some authors as an international organization (Herdegen 2014, pp. 70–71), has institutionalized the freedom of movement—of capital and payments (article 63 et seq., TFEU), services (article 56 et seq., TFEU), goods (article 28 et seq., TFEU) and persons/workers (article 45 et seq., TFEU) (Trachtman 2009, p. 183).42 Until very recently, immigration, movement of people in and into the EU, and the integration of immigrants have had a peripheral place within the EU’s agenda (Favell 2006, p. 47).43 However, this issue has become even more important, not only for the dignity of immigrants living inside EU countries, but also for the Union itself, as it also became a matter of integration and solidarity among the Member States.44 Migration Law in the EU may be classified in accordance with the legal nature of the EU45 and the EU’s peculiarity relies on its supranationalism (Oppermann et al. 2016, p. 22). The integration between the Member States of this international organization is so intense, that the Union has a supranational character; the Union depends only on the Member States, which are considered as the “Masters of the Treaties” of the EU (Schroeder 2015, pp. 26–27).46 However, some jurists classify the Union as a sui generis organization, which should be classified as a federal entity, which concentrates itself on the complete integration of its members, different, then, from simple International Organizations (Schroeder 2015, p. 27; Hobe 2014, pp. 32–33). As an example of this doctrine, João Mota de Campos and João Luiz Mota de Campos review the traditional definitions of supranationalism from Arthur Salter, Robert Schumann, Paul Reuter and others, and conclude that the EU should be considered as a new and simple interstate organization. This sui generis organization, according to the authors, works for the sake of common interests of the Member States. The creation of this organization did not mean to the Member States the 42

All legal provisions of the European Union Migration Law will be scrutinized in the following chapters. 43 Especially after the so-called “refugee crisis”: Oppermann et al. (2016, pp. 18–20). 44 For a systematic explanation on the migration crisis in the European Union, see: Borg-Barthet and Lyons (2016). 45 The supranationalism of European Union law has been discussed as a consequence of European constitutional pluralism. In order to better understand this topic, see: Maduro (2003) and Avbelj and Komárek (2008, pp. 524–527). 46 For an in-depth study regarding the European Union’s supranationalism, see: Fremuth (2010).

28

2 On the Legal Nature of Migration Law in Brazil, Germany and the European Union

renunciation to their national sovereignty, but the transfer of some of their exclusive competencies to the Union (de Campos and de Campos 2010, pp. 255–258). According to Schroeder, the legal nature of EU Law as an International Organization or as a sui generis organ of sovereign power depends whether EU Law is considered as a part of Public International Law, or as an independent legal system (Schroeder 2015, p. 27). Furthermore, we agree with Kostakopoulou when she affirms that the Union is far from being a monolithic system (either seen as a “tool” or as an agent); it actually constitutes a complex strategic field (Kostakopoulou 2000, p. 500). This complexity relates to the nature of the Union: at the same time that the EU’s primary law consists of typical public international law treaties, i.e., treaties entered into by the EU Member States (for example: the Treaty on the European Union, the Treaty on the Functioning of the European Union, the various Protocols and Annexes attached to these Treaties, the Charter of Fundamental Rights, the general principles of the Union Law), there are other legal instruments that give the EU a sui generis characteristic (Dashwood et al. 2011, p. 23). These legal instruments consist of the EU’s secondary law and they include the legal acts of the institutions and organs of the EU, which have been adopted based on the treaties or in accordance with another primary law act (Herdegen 2014, pp. 176–177). In this sense, the EU, as an interstate organization, develops for its own structure regulations, directives, decisions, recommendations, opinions and other legal acts that enter into force among the Member States (Hobe 2014, p. 93). Therefore, it is believed that EU Law consists of a completely new juridical order, which holds at the same time a supranational identity and that needs to deal with a great number of juridical aspects, including those that influence the integration and the supranationalism of the Union. The EU is sui generis because it holds this supranational character, agglutinating interests, politics, economics, people, and legal provisions. The Treaty of Amsterdam, which entered into force in 1999, launched the EU into an era of cooperation in migration matters. In Dauvergne’s opinion (2008, p. 146), the harmonization of migration regulation has made progress in asylum matters and, in a way, also in irregular migration. However, in her opinion, legal economic migration has been controlled solely by the hands of the Member States. “The Amsterdam Treaty has transferred into the European Community pillar measures in the fields of immigration and asylum, the rights of third country nationals, external border controls, visas, administrative co-operation in these fields and judicial co-operation in civil matters” (Kostakopoulou 2000, p. 500). Before 1999, when the Schengen Implementation Convention entered into force in 1990, European immigration law and policy was already a crucial point for the conclusion of the establishment of the European Internal Market and the abolition of internal border controls (Hailbronner 2000, p. 1). More recently, when the Treaty of Lisbon entered into force in December 2009, it created “a new legal foundation for the European border control regime [bringing together] formerly dispersed policies on Justice and Home Affairs under one heading, ‘Area of Freedom, Security and Justice’ (AFSJ)” (Takle 2012, p. 281).

2.3 The Legal Nature of Migration Law in the European Union

29

The coordination—if not harmonization—of basic rules on immigration and asylum matters within the EU figures as an important point for the freedom, security and justice that the Union longs for (Hailbronner 2000, p. 1). However, a common European migration policy also has to consider public international law obligations and customary law, especially when it comes to the treatment of third country nationals. The application of a complex, sui generis, and dynamic EU Migration Law depends on the principle of subsidiarity,47 enshrined by Article 5 of the Treaty on European Union.48 It is required to prove the need for a European action, so that it can be decided whether the European or the national level is preferable (Hailbronner 2000, p. 3). National reactions on migration may be favored if they are sufficient or more efficient than the ones existent on the EU-level. Still, “the unwillingness of Member States to consistently adopt European policies that apply to issues of mobility, immigration, and integration has meant that the European policy space with respect to migration issues is remarkably complex” (Moses 2011, p. 396). In this sense, in order to complete the analysis of the legal nature of Migration Law and considering Germany’s social and economic importance in the Union, an explanation of German Migration Law follows.

2.3.1

The Legal Nature of Migration Law in Germany

Reinhard Marx considers Migration Law (referring to residence law, asylum law and refugee law) a traditionally controversial legal matter, both in the political and social fields (Marx 2017, p. 59). Nevertheless, Migration Law in Germany has developed itself into one of the most important law fields in a very short period of time—in Germany, Migration Law is part of national public law (Mengele 1983, p. 5). Migration Law in Germany consists of a set of rules from all hierarchy levels. Together with the German constitution and with other internal laws, there are not only some national regulations, but also Public International Law and EU Law rules that refer to migration issues. All these sources influence Germany’s Migration Law (Ausländerrecht) (Hailbronner 2014, p. 13). The legal framework of migration in Germany was originally ruled almost exclusively by national law and was historically and systematically related to Police Law (Polizeirecht). It is clear to identify its origin when considering the Foreigners Police Decree (Ausländerpolizeiverordnung) from 1938; according to this law, the stay of foreigners in Germany was restricted to those whose personality and reason for staying guaranteed that they were worthy of Germany’s hospitality (DEMIG 2015). Many other rules regarding the rights and duties of foreigners entered into force in Germany, some of them presenting foreigners

47

On this principle, see: Ederveen et al. (2008) and Craig (2012). The Treaty is available via http://eur-lex.europa.eu/legal-content/EN/TXT/?uri¼OJ:C:2012:326: TOC.

48

30

2 On the Legal Nature of Migration Law in Brazil, Germany and the European Union

in a negative light, especially the 1938 one, which was launched during the Nazi regime.49 The first federal law on foreigners (Ausländergesetz) entered into force in 1965, which was substituted by another one in 1990 (Hailbronner 2014, p. 13). The 1990 federal law on foreigners was still based on the fact that foreigners were allowed to enter German territory if they had a remunerative occupation (namely if they were employed in the country) as the reason for their residence in Germany (Hailbronner 2014, p. 14). Nowadays German Migration Law is no longer reduced to a public safety issue, i.e., Migration Law is not only conducted for the sake of protecting the German State (Hailbronner 2014, p. 11), but it is still related to the organization of the State.50 This transformation came in 2005, when the Zuwanderungsgesetz51 (freely translated by us as Immigration Law) entered into force substituting the law of 1990, and modifying several other laws and rules, but mainly introducing the Aufenthaltsgesetz (German Residence Act) through Article 1, and the Freizügigkeitsgesetz (Freedom of Movement Law) through Article 2 (Hailbronner 2014, p. 14). In this context, the German Migration Law is shaped by the German Residence Act, by the Freedom of Movement Law (considering also EU Law in this matter), by Association Agreements, as well as by Asylum Law and Refugee Law (Huber and Göbel-Zimmermann 2008, p. v). As mentioned above, Migration Law belongs to public domestic law, from which Administrative Law is a specific field of study, and Migration Law belongs to the special part of Administrative Law (Bull and Mehde 2015, p. 29). Administrative Law in Germany can have many subdivisions (Ehlers 2016, p. 139) and Migration Law (Ausländerrecht) is related to one of them. Bull and Mehde classify Migration Law under a field of Administrative Law called Ordnungs- und Überwachungsverwaltungsrecht, (herein freely translated as Public Order Law and Inspection Administrative Law) which is responsible for the organization of the State and for the protection of the citizens, as for example Police Law (Bull and Mehde 2015, p. 29). According to this classification, there does not seem to be so many differences between the ratio behind Migration Law in the late 1930s and the one existing nowadays. One important point to mention is that not all German administrative lawyers expressly assert that Migration Law belongs to Administrative Law.52 However, as Ipsen states, there is no fixed canon for the special part of Administrative Law in Germany, since law fields are in a constant change (Ipsen 2015, p. 15). Hailbronner points out the relationship between the different sources of Migration Law which are applicable under German law (Hailbronner 2014, p. 26). All these sources, which will be named and detailed in Sect. 5.1, are judged after the general

49

For a detailed explanation about the history of German Migration Law, see: Renner (1998). More on this subject can be found in Sect. 5.1 of this book. 51 Its official name is Gesetz zur Steuerung und Begrenzung der Zuwanderung und zur Regelung des Aufenthalts und der Integration von Unionsbürgern und Ausländern (Zuwanderungsgesetz). 52 For example: Ehlers (2016), Erbguth (2014) and Detterbeck (2013). 50

2.4 Preliminary Conclusions: The Taxonomy of Migration Law

31

principles of German constitutional law and they interact with each other, integrating EU citizens and third country nationals (Renner 1998, p. 63).

2.4

Preliminary Conclusions: The Taxonomy of Migration Law

Based on various classifications of Migration Law that have been presented throughout this chapter, some conclusions regarding the legal nature of Migration Law will follow, so that it can be possible to contextualize the treatment of migrants within these three proposed contexts. Notwithstanding the abovementioned law-based explanations for several classifications attributed to Migration Law, we believe that considering Migration Law as a Private International Law object does not seem to be as obsolete as it is normally proclaimed. Not only because Migration Law is related to rights of people that find themselves in a foreign country, making that foreign country responsible for determining the rights and duties of migrants in its territory, but also because nationality, country of residence, or any other connecting factor are key elements in determining the right of a person under a specific jurisdiction.53 Needless to say that some of the values of Private International Law are in line with the rights of migrants.54 In the twentieth century, Private International Law has adopted values such as: (1) respect to equality between people; (2) access to justice; and (3) tolerance towards diversity (Ramos 2016, p. 506). These values were mainly inserted into Private International Law values due to the growth of the international protection of Human Rights. It is not without reason that Jacob Dolinger affirms that Private International Law is the science, and maybe the art, which aims to connect the people in the world (Dolinger 2009, p. 143). If one goes beyond the concept of Private International Law and considers the concept of Transnational Law (a term which was not created, but developed and popularized, by Philip C. Jessup55), it is possible to understand the context in which Migration Law could be inserted nowadays. After all, Private International Law and Transnational Law have a very close and intensive connection, since both bodies of law regulate social facts that escape from the boundaries of the States (Ramos 2016, p. 505). When Jessup clarified the legal complexity that exists in an interdependent world, he stated that there was no space for two classic divisions anymore, namely public international law and private international law. The legal world, according to him,

53

About connecting rules, see: Dolinger and Tiburcio (2016, pp. 309–313). Mankowski (2017, pp. 40–49) explains how Private International Law reacts when new categories of migrants are established. He also recognizes the great influence of PIL when determining the rights of migrants inside the territory of a country, through the connecting rules. 55 See: Jessup (1956). 54

32

2 On the Legal Nature of Migration Law in Brazil, Germany and the European Union

should be sought in both public and private international law, developing into “new bodies of law that do not fit into either traditional division”, that is, into Transnational Law (Schachter 1986, pp. 893–894). In this sense, for Jessup Transnational Law would mean a set of standards (national, international and from other sources, especially from private actors) that regulates actions or events that transcend national borders (Jessup 1956, p. 2). In fact, Gralf-Peter Calliess presents another idea of Transnational Law, understanding it as a third category56 of autonomous legal systems beyond the traditional categories of national and international law (Calliess 2004, pp. 254–255). According to Calliess, Transnational Law is created and developed by the legal powers of a global civil society, and is based on general principles of law and their condensation and confirmation in social practice. Thus, the application and interpretation of Transnational Law is—at least in a first moment—related to private dispute resolution mechanisms, in which—if at all— codification takes place, in most cases in the form of general principles, standardized contract forms, or codes of conduct drawn up by private institutions. In this context, it could be stated that Migration Law consists of a melting pot, classified either as Private International Law, Public International Law, Administrative Law, Refugee Law, Supranational Law, or as many as other possible classifications and national, international and other set of standards, depending on the particular immigrant’s case law. All of these sets of standards/classifications deal with social facts—i.e. movement of people—that escape from the boundaries of the States and involve the legal orders of two of more States. From this perspective, and especially considering Jessup’s concept of Transnational Law, it is possible to suggest the term Transnational Law of Human Mobility, where human beings are the main characters, who are entitled to all legal protection needed. Not only transnationality, but also cosmopolitanism is related to migration matters. That is why we now make a brief reference to Immanuel Kant’s work, in order to explain the Cosmopolitan Law (or Weltbürgerrecht) (Byrd and Hruschka 2011, p. 205). From Kant’s perspective, “cosmopolitan right concerns how individuals from one political realm ought to relate to individuals of another (foreign) realm, as well as how states and foreigners should treat one another – i.e., what visitors owe to foreign states, and what states, in turn, owe to such foreign visitors” (Muthu 2000, p. 32). Kant’s idea of cosmopolitan rights becomes unique, because it attempts to articulate a normative ideal, which could serve to solve ethical problems that arise from common relationships between States and foreigners (Muthu 2000, p. 33). Therefore, Cosmopolitan Law57 differs from the classical denomination International Law (or the law of nations), because the latter solely regards the relation between States. This relationship between foreigners and States is based on Kant’s thoughts that all citizens in the world have the right to establish community with all,

56

In the same sense see: Teubner (1996, p. 258). For more details on the expression Weltrecht and its constitutional law character, see: Kotzur (2008, pp. 191–196). 57

References

33

without any obstacles to visit any region in the world. This possibility of visiting all regions in the world is related to a universal hospitality,58 which includes the right of a foreigner not being treated with hostility simply because he/she is in the land of another (Kant 1932, p. 358). In this sense, it can be stated that human mobility in today’s world reflects a conflict of interests that exists between cosmopolitanism and sovereignty of the States, and we agree with Valdez, when she transfers Kant’s theories to the current migration reality: Making the cosmopolitan and sovereign realms work in complementary ways requires acknowledging how globalization affects the communities of physical and virtual proximity that can and will be affected by our actions. It is this potential for contact and thus for injury which guides the Kantian injunction to enter a common lawful state that guarantees equal freedom for all affected. Democratic communities today are extremely diverse, encompassing native citizens, naturalized citizens, undocumented migrants and documented migrants. The growth in legislation that affects individuals who do not participate in decision making responds to the unwillingness of formal members to grant newcomers the guarantees of a civil constitution, not the refusal of the latter to accept one. Moreover, rather than an absence of law, there is a differentiated legal system drafted by actors that are not subject to it and imposed on migrants, both documented and undocumented. This violates the Kantian republican principles of freedom and dependence on an equal and common legislation. A response to these events requires the empowerment of cosmopolitan citizens who face hostile governments and communities, just as Kant’s extension of sovereignty empowered members of conquered countries (Valdez 2012, p. 109).

The most important question in this context is how to achieve a cosmopolitan treatment of migrants in a context where human beings on the move are labeled as native citizens, naturalized citizens, refugees, labor migrants, and many other classifications. How migration can be seen and if it will be ever seen through this cosmopolitan lens are challenges yet to be accomplished in the contemporary world. The right to establish community with all also relates to the idea of tolerance. Establishing community with all shows how important it is for the world to be diverse and how the spirit of tolerance and the principle of proximity are present in international law studies (Dolinger and Tiburcio 2016, p. 21). Tolerance aims towards a peaceful cooperation between individuals and collectives (Kotzur 2010, p. 167) and it should be considered as a keyword for migration laws and policies developed by all sovereign entities.

References Araújo LIA (1990) Introdução ao Direito Internacional Privado. Revista dos Tribunais, São Paulo Araujo N (2016) Direito Internacional Privado. Teoria e Prática Brasileira [Adobe Digital Editions version]. Revolução eBook, Porto Alegre Audit B, d’Avout L (2013) Droit International Privé. Economica, Paris

58

For a deep explanation about hospitality in Kant, see: Baker (2011).

34

2 On the Legal Nature of Migration Law in Brazil, Germany and the European Union

Avbelj M, Komárek J (2008) Four visions of constitutional pluralism. Eur Const Law Rev 4 (3):524–527 Baker G (2011) Right of entry or right of refusal? Hospitality in the law of nature and nations. Rev Int Stud 37(3):1423–1445 Bast J (2011) Aufenthaltsrecht und Migrationssteuerung. Mohr Siebeck, Tübingen Batiffol H, Lagarde P (1993) Traité de Droit International Privé. Librairie Générale de Droit et de Jurisprudence, Paris Bedford R (2012) Contemporary patterns of international migration. In: Opeskin B, Perruchoud R, Redpath-Cross J (eds) Foundations of international migration law. Cambridge University Press, Cambridge, pp 17–55 Benda-Beckmann F, Benda-Beckmann K, Griffiths A (2004) Mobile people, mobile law: an introduction. In: Benda-Beckmann F, Benda-Beckmann K, Griffiths A (eds) Mobile people, mobile law – expanding legal relations in a contracting world. Ashgate, Farnham, pp 1–25 Betts A (2010) The refugee regime complex. Refugee Surv Q 1(29):12–37 Bevilaqua C (1934) Princípios Elementares de Direito Internacional Privado. Editora Freitas Bastos, Rio de Janeiro Booth W (1997) Insiders, outsiders and the ethics of membership. Rev Polit 59(2):259–292 Borg-Barthet J, Lyons C (2016) The European Union migration crisis. Edinb Law Rev 20 (2):230–235 Bull HP, Mehde V (2015) Allgemeines Verwaltungsrecht mit Verwaltungslehre. C. F. Müller, Heidelberg Bureau D, Muir Watt H (2010) Droit international privé. Tome I. Partie general. Presses Universitaires de France, Paris Byrd BS, Hruschka J (2011) Kant’s Doctrine of right. Cambridge University Press, Cambridge Cahali YS (2011) Estatuto do Estrangeiro. Editora Revista dos Tribunais, São Paulo Calliess G-P (2004) Transnationales Verbrauchervertragsrecht. Rabels Zeitschrift für ausländisches und internationales Privatrecht (RabelsZ) 68(2):244–287 Campos RA (2011) De los outsiders de Norbert Elias y de otros extraños en el campo de la sociología de las migraciones. Papers – Revista de Sociología 96(2):375–387 Clarke C (2011) The EU and migration. A call for action. Centre for European Reform, London Craig P (2012) Subsidiarity: a political and legal analysis. J Common Mark Stud 50(S1):72–87 Dashwood A, Dougan M, Rodger B, Spaventa E, Wyatt D (2011) Wyatt and Daschwood’s European Union law. Hart Publishing, Oxford Dauvergne C (2008) Making people illegal: what globalization means for migration and law. Cambridge University Press, New York de Campos JM, de Campos JLM (2010) Manual de Direito Europeu. Wolters Kluwer Portugal/ Coimbra Editora, Coimbra DEMIG (2015) DEMIG POLICY, version 1.3, Online Edition. International Migration Institute, University of Oxford, Oxford. Available via www.migrationdeterminants.eu Detterbeck S (2013) Allgemeines Verwaltungsrecht: mit Verwaltungsprozessrecht. C. H. Beck, München Dolinger J (2009) Direito e Amor. Renovar, Rio de Janeiro Dolinger J (2012) Private international law in Brazil. Kluwer Law International, Alphen aan den Rijn Dolinger J, Tiburcio C (2016) Direito Internacional Privado – Parte Geral e Processo Internacional. Forense, Rio de Janeiro Ederveen S, Gelauff G, Pelkmans J (2008) Assessing subsidiarity. In: Gelauff G, Grilo I, Lejour A (eds) Subsidiarity and economic reform in Europe. Springer, Berlin, pp 19–40 Ehlers D (2016) Verwaltung und Verwaltungsrecht im demokratischen und sozialen Rechtsstaat. In: Ehlers D, Pünder H (eds) Allgemeines Verwaltungsrecht, pp 1–254 Erbguth W (2014) Allgemeines Verwaltungsrecht – mit Verwaltungsprozess- und Staatshaftungsrecht. Nomos, Baden-Baden

References

35

Fan M (2014) The law of immigration and crime. In: Bucerius SM, Tonry M (eds) Ethnicity, crime, and immigration. Oxford University Press, New York Fausto B (2002) História do Brasil. Edusp, São Paulo Favell A (2006) The nation-centered perspective. In: Giuni M, Passy F (eds) Dialogues on Migration Policy. Lexington Books, Oxford, pp 45–56 Fremuth ML (2010) Die Europäische Union auf dem Weg in die Supranationalität. Lit Verlag Dr. W Hopf, Münster Garcia MPP (2015) Estrangeiro e migrante no ordenamento jurídico brasileiro. In: Ramos AC (ed) Direito Internacional Privado: Questões controvertidas. Arraes Editores, Belo Horizonte, pp 150–163 Gillard E-C (2005) The role of international humanitarian law in the protection of internally displaced persons. Refug Surv Q 24(3):37–48 Godoy GG (2011) O caso dos haitianos no Brasil e a via da proteção humanitária complementar. In: Ramos A, Rodrigues G, de Almeida GA (eds) 60 anos de ACNUR: perspectivas de futuro. Editora CL-A Cultural, São Paulo, pp 45–68 Hailbronner K (2000) Immigration and asylum law and policy of the European Union. Kluwer Law International, The Hague Hailbronner K (2014) Asyl- und Ausländerrecht. W. Kohlhammer, Stuttgart Hailbronner K, Herzog-Schmidt J (2016) Council Directive 2009/50/EC of 25 May 2009 on the conditions of entry and residence of third-country nationals for the purposes of highly qualified employment. In: Hailbronner K, Thym D (eds) EU immigration and asylum law: a commentary. C.H. Beck/Hart/Nomos, München, pp 764–835 Hanlon B, Vicino TJ (2014) Global migration – the basics. Routledge, Abingdon Harzig C, Hoerder D (2009) What is migration history? Polity Press, Cambridge Hathaway JC (1991) The law of refugee status. Butterworths, Toronto Hathaway JC, Neve RA (1997) Making international refugee law relevant again: a proposal for collectivized and solution-oriented protection. Harv Human Rights J 10:115–333 Herdegen M (2014) Europarecht. C. H. Beck, München Hing BO (1998) The immigrant as criminal: punishing dreamers. Hast Women’s Law J 9(1):79–96 Hobe S (2014) Europarecht. Franz Vahlen, München Huber B, Göbel-Zimmermann R (2008) Ausländer- und Asylrecht. C. H. Beck, München Instituto Brasileiro de Geografia e Estatística – IBGE (2003) Censo demográfico 2000 – migração e deslocamento. Resultados da amostra. IBGE, Rio de Janeiro Instituto Brasileiro de Geografia e Estatística – IBGE (2012) Censo demográfico 2010 – nupcialidade, fecundidade e migração. Resultados da amostra. IBGE, Rio de Janeiro Ipsen J (2015) Allgemeines Verwaltungsrecht: mit Grundzügen des Verwaltungsprozessrechts. Vahlen, München Jessup PC (1956) Transnational law. Yale University Press, New Haven Jones FJ (2004) Human security and social development. Denver J Int Law Policy 33(1):92–103 Jubilut LL (2006) Refugee law and protection in Brazil: a model in South America? J Refug Stud 19 (1):22–44 Kälin W, Künzli J (2008) Universeller Menschenrechtsschutz. Helbing Lichtenhahn, Basel Kant I (1932) Perpetual peace. U.S. Library Association, Los Angeles Kleingeld P (2012) Kant and cosmopolitanism: the philosophical ideal of world citizenship. Cambridge University Press, Cambridge Kostakopoulou T (2000) The “protective union”: change and continuity in migration law and policy in post-Amsterdam Europe. J Common Mark Stud 38(3):497–518 Kotzur M (2008) Weltrechtliche Bezüge in Nationalen Verfassungstexten. Die Rezeption verfassungsstaatlicher Normen durch das Völkerrecht. Rechtstheorie 39:191–216 Kotzur M (2010) Toleranzdenken und internationale Ordnung. Überlegungen zur Systemrelevanz von Toleranz für das Völkerrecht. Archiv des Völkerrechts 48(2):163–188 Long K (2013) When refugees stopped being migrants: movement, labour and humanitarian protection. Migr Stud 1(1):4–26

36

2 On the Legal Nature of Migration Law in Brazil, Germany and the European Union

Lopes CMS (2009) Direito de Imigração. O estatuto do Estrangeiro em uma Perspectiva de Direitos Humanos. Nuria Fabris Editora, Porto Alegre Lucassen J, Lucassen L (1997) Migration, migration history, history: old paradigms and new perspectives. In: Lucassen J, Lucassen L (eds) Migration, migration history, history: old paradigms and new perspectives. Peter Lang, Bern, pp 9–38 Maduro MP (2003) Las formas del poder Constitucional de la Unión Europea. Revista de estudios políticos 119(1):11–56 Mankowski P (2017) Die Reaktion des Internationalen Privatrechts auf neue Erscheinungsformen der Migration. Praxis des Internationalen Privat- und Verfahrensrechts 37(1):40–49 Markard N (2012) Kriegsflüchtlinge – Gewalt gegen Zivilpersonen in bewaffneten Konflikten als Herausforderung für das Flüchtlingsrecht und den subsidiären Schutz. Mohr Siebeck, Tübingen Marmor A, Sarch A (2015) The nature of law. Stanford Encyclopedia of Philosofy, Fall 2015 Edition, available via https://plato.stanford.edu/archives/fall2015/entries/lawphil-nature Marugg M (1990) Völkerrechtliche Definitionen des Ausdruckes “Flüchtling”. Helbing & Lichtenhahn, Basel Marx R (2012) Handbuch zum Flüchtlingsschutz: Erläuterungen zur Qualifikationsrichtlinie. Luchterhand, Köln Marx R (2017) Aufenthalts-, Asyl- und Flüchtlingsrecht. Nomos, Baden-Baden Massey DS, Taylor JE (2004) Back to the future: immigration research, immigration policy, and globalization in the twenty-first century. In: Massey DS, Taylor JE (eds) International migration – prospects and policies in a global market. Oxford University Press, New York, pp 373–388 Mayer P, Heuzé V (2014) Droit international privé. Lextenso Éditions, Issy-les-Moulineaux Cedex Mello CA (2002) Curso de Direito Internacional Público. Renovar, Rio de Janeiro Mengele H-P (1983) Ausländerrecht. W. Kohlhammer, Stuttgart Morticelli A, Castro E, Sözen ÜS (2016) Is a refugee a refugee everywhere? A comparative study between Turkish, Italian and Brazilian law. In: Eroglu D, Cohen JH, Sirkeci I (eds) Turkish migration 2016 – selected papers. Transnational Press London, London, pp 6–14 Morticelli A, Castro E, Sözen ÜS (2018) The need of a new blueprint for refugees: a comparative case study. Archiv des Völkerrechts 56(2):173–201 Moses JW (2011) Migration in Europe. In: Tiersky R, Jones E (eds) Europe today: a twenty-first century introduction. Rowman & Littlefield Publishers, New York, pp 371–397 Muthu S (2000) Justice and foreigners: Kant’s cosmopolitan right. Constellations 7(1):23–45 Nuscheler F (2004) Internationale Migration. Flucht und Asyl. VS Verlag für Sozialwissenschaften, Wiesbaden Octavio R (1942) Direito Internacional Privado – parte geral. Freitas Bastos, Rio de Janeiro Oliveira AT (2015) O perfil geral dos imigrantes no Brasil a partir dos censos demográficos 2000 e 2010. Cadernos Obmigra – Revista Migrações Internacionais 1(2):48–73 Oppermann T, Classen CDC, Nettesheim M (2016) Europarecht – ein Studienbuch. C. H. Beck, München Pallida S (2011) Racial criminalization of migrants in the 21st century. Advances in Criminology, Aldershot Pillet AM (1903) Principes de Droit International Privé. Pedone Éditeur, Paris Ramos AC (2016) Direito internacional privado e o direito transnacional: entre a unificação e a anarquia. Revista de Direito Internacional 13(2):504–520 Ramos AC (2018) Curso de Direito Internacional Privado. Saraiva Educação, São Paulo Recchi E (2015) Mobile Europe – the theory and practice of free movement in the EU. Palgrave Macmillan, Basingstoke Rechsteiner BW (2012) Direito Internacional Privado: teoria e prática. Saraiva, São Paulo Reinisch A, Fink M, Stifter L (2013) Österreichisches Handbuch des Völkerrechts. Manzsche Verlag und Universitätsbuchhandlung, Wien Renner G (1998) Ausländerrecht in Deutschland. C. H. Beck, München

References

37

Rubio-Marín R (2014) Introduction: human rights and the citizen/non-citizen distinction revisited. Rubio-Marín, Ruth. Human rights and immigration. Oxford University Press, New York, pp 1–18 Samtleben J (1979) Internationales Privatrecht in Lateinamerika – Der Código Bustamante in Theorie und Praxis. Allgemeiner Teil. J. C. B. Mohr, Tübingen Sartoretto LM (2018) Direito dos Refugiados: do eurocentrismo às abordagens de terceiro mundo. Arquipélago Editorial, Porto Alegre Schachter O (1986) Philip’s Jessup’s life and ideas. Am J Int Law 80(4):878–895 Schroeder W (2015) Grundkurs Europarecht. C. H. Beck, München Schuster L (2016) Unmixing migrants and refugees. In: Triandafyllidou A (ed) Routledge handbook of immigration and refugee studies. Routledge, Abingdon Sirkeci I, Cohen JH (2016) Cultures of migration and conflict in contemporary human mobility in Turkey. Eur Rev 24(3):381–396 Skeldon R (2013) Global migration: demographic aspects and its relevance for development. Population division. Technical Paper No. 2013/6. United Nations, New York Straubhaar T (1988) On the economics of international labor migration. Haupt, Stuttgart Strenger I (1978) Curso de Direito Internacional Privado. Forense, Rio de Janeiro Takle M (2012) The treaty of Lisbon and the European border control regime. J Contemp Eur Res 8 (3):280–299 Tenório O (1970) Direito Internacional Privado, vol I. Biblioteca Jurídica Freitas Bastos, Rio de Janeiro Teubner G (1996) Globale Bukowina. Zur Emergenz eines transnationalen Rechtspluralismus. Rechtshistorisches Journal 15:255–290 Tiburcio C (2001) The human rights of aliens under international and comparative law. Martinus Nijhoff Publishers, The Hague Tiburcio C (2015) La Condition de l’étranger dans la Constitution Brésilienne de 1988. Panorama of Brazilian Law 3(3-4):9–37 Tiburcio C, Albuquerque F (2015) Algumas reflexões sobre o Tratamento do Estrangeiro no Brasil. In: Tiburcio C, Vasconcelos R, Menezes W (eds) Panorama do Direito Internacional Privado Atual e outros Temas Contemporâneos. Festschrift ao Professor Jacob Dolinger. Arraes, Belo Horizonte, pp 220–247 Trachtman JP (2009) The international law of economic migration: toward the fourth freedom. W.E. Upjohn Institute for Employment Research, Kalamazoo. Available via https://research. upjohn.org/up_press/14/ United Nations (2013) The number of international migrants worldwide reaches 232 million. Popul Facts 2013(2):1–4. Available via https://esa.un.org/unmigration/documents/The_number_of_ international_migrants.pdf United Nations International Strategy for Disaster Reduction – UNISDR (2009) 2009 UNISDR Terminology on Disaster Risk Reduction. United Nations; United Nations International Strategy for Disaster Reduction, Geneva United Nations Statistics Division (1998) Recommendations on Statistics of International Migration Revision 1. United Nations, New York Valdez I (2012) Perpetual what? Injury, sovereignty and a cosmopolitan view of immigration. Polit Stud 60(1):95–114 Valladão H (1974) Direito Internacional Privado – Em base histórica e comparativa, positiva e doutrinária, especialmente dos Estados americanos, vol I. Freitas Bastos, Rio de Janeiro Veloso Leão A (2013) Public policy and media frames. The debate over migration in Brazil. Braz Polit Sci Rev 7(1):94–117 Zlotnik H (2004) Population growth and international migration. In: Massey DS, Taylor JE (eds) International migration – prospects and policies in a global market. Oxford University Press, New York, pp 15–34

Chapter 3

Historical Aspects of Migration in Brazil and in Germany

This chapter aims to ground the juridical aspects of this work in the context of historical and social factors, which have impacted migration in Brazil and in Germany, including the developments derived from the structure of MERCOSUL and the EU, respectively. Even though an extensive analysis of all migration movements that occurred in Brazil is not intended, this chapter presents a summary of the history in Brazilian territory, also considering the context of MERCOSUL’s growth, as well as recent events, which have placed immigration high on Brazil’s legal and political agenda once again. With the same purpose, Germany’s historical aspects on migration, including the most recent period, will be detailed within this chapter.

3.1

Migration in Brazil: Background and Current Trends

In 1500, Pedro Álvares Cabral arrived with his fleet in South Atlantic lands—today Brazilian territory. From that year until 1822, Brazil had been a colony of Portugal (Fausto 2002, p. 41). After 300 years of Portuguese domination (ending officially in 1822 with Brazil’s independence), this colonial period still determines and explains a lot with regards to Brazilian culture and society today. During that time, not only were Brazilian lands exploited, but slavery had become one of the most profitable activities of colonial Brazil (Fausto 2002, p. 50).1 These men and women from various regions of Africa2 have represented—after Portuguese people—the first newcomers in Brazilian territory. 1

About the influences of slavery in modern Brazil, see: dos Santos (2015). In the sixteenth century, Guinea (Bissau and Cacheu Region) and Costa da Mina (Gold Coast) were the main regions in Africa that brought slaves to Brazil. From the seventeenth century on, the southern coast of Africa (including Congo and Angola) became the most important region for slave exportation (through the harbors of Luanda, Benguela and Cabinda). Angolans were the majority 2

© Springer Nature Switzerland AG 2020 E. Lana de Freitas Castro, Transnational Law of Human Mobility, https://doi.org/10.1007/978-3-030-46608-4_3

39

40

3 Historical Aspects of Migration in Brazil and in Germany

Our analysis on Brazilian migration starts from the arrival of these people. After all, as Araujo confirms (2015, p. 1), “Brazil imported the largest number of enslaved Africans during the Atlantic slave trade era”. It is evident that these people shaped Brazilian society, in such a way that migration—or, better said, the arrival of new people to Brazilian territory—might be seen nowadays by Brazilian society in a different way: namely, as being a part of Brazil’s cultural identity. However, it must be clearly stated that, in this work, slavery is not considered as a migration movement. The abovementioned Atlantic slave trade prompts one to think in another migration category, namely, the free and the unfree migrations, which should have been mentioned above in the forced and voluntary migration section. However, it seems that it is rather more logical to mention this category of migration when one establishes slavery as one of the strongest historical and cultural realities in Brazil’s history. According to Jan and Leo Lucassen, migration historians do not normally consider the fundamental difference between free and unfree migration in an explicit way. The reason for that might rely on the fact that—except for cases of slavery— distinctions between free and unfree migrations are difficult to substantiate. They continue their explanation affirming that “all kinds of non-economic coercion could induce people to accept work elsewhere under conditions that we would consider unfree without being the result of well-planned enslavement” (Lucassen and Lucassen 1997, p. 11).3 It is because of this grey zone that, in this work, slavery is not being considered as an unfree migration: this clear and very well structured coercion of labor abroad is out of the scope of migration studies.4 At that time, these people were not willing to move, but they have been moved for the sake of the improvement and profit of the Atlantic slave trade. Nevertheless, the slave trade meant a relatively big economic growth for European countries and, in this context, “European migration across the Atlantic clearly interacted with the slave trade from Africa” (Eltis 1997, p. 90). In order to maintain this complex economic activity and to administrate millions of lives of African people, colonizers had to migrate: The dramatic escalation of the transatlantic slave trade in the seventeenth and eighteenth centuries was related to other movements connected to Europe’s ascendance. Economic growth in Europe drove colonizer migrations; these merchants and soldiers mobilized and

taken to Brazil in the eighteenth century (about 70% of slaves taken to Brazil at that time). See: Fausto (2002, p. 51). 3 Jan and Leo Lucassen give some examples in which this differentiation turns out to be a difficult one, such as the one of women giving birth out of wedlock in France in the nineteenth century. As they were not in a position to force men to marry them, many women left their villages and decided to move to Paris or to any other major city. There, they gave birth to their children and started to find work, mostly in the service sector. Based on the work of Fuchs, Jan and Leo Lucassen affirm that this case is an example that has a lot of non-economic motives, see: Lucassen and Lucassen (1997, p. 12). 4 Contrary to this view, as it is considered as a change of domicile intended to be relatively longterm, see: Oltmer (2015a, b, pp. 32–33).

3.1 Migration in Brazil: Background and Current Trends

41

controlled local labor for production; and the expansion of mines and plantations generated demand for external labor (Goldin et al. 2010, pp. 48–49).

In order to organize the colonies, Europeans also had to migrate and—in Harzig’s and Hoerder’s words (2009, p. 35)—these were the investor migrants, who “imposed slave and indentured migrations for their plantations or mines”. Moreover, international movement in that time period can be associated with three groups of immigrants which are related to colonial expansion, namely: [. . .] colonialists, who traveled with government support to open new regions, find new raw materials and resources, and organize new industries; free movers, who settled in new regions in an effort to expand production or establish local farm economies; and forced migrants, moved against their will to serve colonial and business interests (Cohen and Sirkeci 2011, pp. 70–71).

In the mid-nineteenth century, when the slave trade was abolished,5 but slavery was still allowed in Brazil (i.e. between 1850 and 1888), the internal commerce of slaves was the main provider of labor in the country. This allowed a rapid expansion of the Brazilian coffee economy in the Center-South States. From then on, a combination of external and internal factors, including the exhaustion of the slave stock, has led to the solution of subsidized immigration of European workers, which has become the main source of labor for coffee cultivation (Patarra 2003, p. 11). Later on, after slavery was abolished in Brazil,6 slaves continued to be replaced by a European labor force: The influx of migrant labor to Brazil’s rural areas allowed the economy to triple coffee output in the decade after the abolition of slavery. In the 1880s, the government developed the colono system, which subsidized the passage of families to Brazil – an effort to keep migrants from returning to Europe. Between 1889 and 1900, about 750,000 subsidized migrants arrived in São Paulo alone, and over four million migrants had arrived by 1936. In 1920, when only 5 percent of the male population was foreign born, these migrants owned 16 percent of Brazil’s farmland (Goldin et al. 2010, p. 62).

According to Fausto, there were basically two reasons why Brazil preferred to make use of a European labor force instead of employing either freed slaves or even mixed race Brazilians from the poorest regions in the northeast of the country. Firstly, because Brazilian farmers could not accept the end of slavery and, therefore, could not imagine that former slaves would have to work under another regime, whereby they would be entitled to receive money for the work carried out. Moreover, because it was hard to believe that farmers would treat former slaves in a different way, after hundreds of years of slavery (Fausto 2002, p. 205). Specifically on this point, it is important to mention that even European immigrants demonstrated concern in relation to Afro-Brazilians, once they [. . .] increasingly insisted on their own whiteness, assuming a new form of race consciousness in Brazil. Fearing that fazendeiros [Brazilian farmers] would link them with slaves and

5

For more details on the slave trade and its abolition in 1850, see: Fausto (2002, pp. 192–197). The Lei Áurea, adopted on May 13, 1888, was the law that abolished slavery in Brazil, see: Fausto (2002, pp. 203 and 566). 6

42

3 Historical Aspects of Migration in Brazil and in Germany slavery, immigrants actively separated themselves from the Afro-Brazilians who worked and lived with them in the countryside (Lesser 2013, p. 77).

There is a second cultural reason for the choice of a European labor force; mixed raced Brazilians, who were born during Portuguese colonization, were considered as inferior individuals in the society. In this context, the only way to include them into Brazilian society was through Europeanizing them as soon as possible, by means of organizing a selective migration (Fausto 2002, p. 205). Even though native Brazilians were not cherished in the labor market and white Europeans were instead used to exploit the farmlands with their labor, discrimination against these European newcomers also continued to manifest itself. These people were seen mainly as foreigners rather than human beings in search of employment and better life conditions, trying to escape from poverty and hunger on the European continent. Therefore, immigrants continued to be victims of discriminatory measures.7 By diminishing both poor mixed raced Brazilians and immigrants, Brazilians tried to create the national identity in the country, bringing the idea of a Europeanized, homogeneous and modern white Brazilian elite (Vainer 1995, p. 48). The Brazilian empire came to an end in 1889 and the new republic created subsidies for immigrants, which were more attractive than the ones offered in the mid-nineteenth century. Brazil was rapidly filled with immigrants: “In 1891, legislation guaranteeing public religious freedom was enacted in order to attract Protestant immigrants, whose whiteness, elites believed, would help to de-Africanize Brazil’s population” (Lesser 2013, p. 61). It is said that immigrants from Africa and Asia8 had been banned by politicians, while diplomats and the police cared for the enforcement of the immigration rights. It is important to mention that the determination of this new migration pattern in Brazil depended neither on the slaves from Africa nor on the free European workers. Wagner and Ward agree that the pattern of the period was defined by the British Parliament, the British Navy, by some European political leaders (and they mention specifically Italy’s political leaders), as well as by “Brazil’s plantation owners and the palates of world coffee and sugar consumers” (Wagner and Ward 1980, p. 254). It is possible to observe that, at that time, Brazil was operating an immigration policy that combined not only the economic necessities of the Brazilian State, while attracting people to work in the farmlands of the country, but also the social—and undoubtedly the racial—urgencies of the Brazilian government. We consider this characteristic of the Brazilian migration policy at that time as a very particular one,

7 Even before the 1880s, coffee plantations in Brazil were growing thanks to the system of partnership between farmers and Europeans. Nicolau de Campos Vergueiro, for instance, a very influential farmer in the region of São Paulo, started to establish partnerships in the late 1840s with German and Swiss immigrants in his farm, in the late 1840s. Their regime of work was so strict that their mail was censored and even their comings and goings to one farm to the other were limited. For more details, see: Fausto (2002, pp. 205–206). 8 A detailed article on the Chinese migration into Brazil, specifically in the State of Bahia, demonstrates how the Brazilian civilizational model was rejecting immigrants who did not come from the European continent. For further information, see: Minnaert (2016).

3.1 Migration in Brazil: Background and Current Trends

43

and maybe as a unique one in that period. It could be observed that the Brazilian State had a significant interest in receiving people from Europe for the sake of maintaining its international agriculture position and distributing the white-skinned population all over its territory. Between the years of 1890 and 1930, “more than two million immigrants entered São Paulo, about half with passages paid for by the state government” (Lesser 2013, p. 72). Lesser reports how the subsidies have been offered by the State, giving details about the arrival of the immigrants in the ports of Brazil: Immigrants arrived primarily at three ports: Salvador (in the northeastern state of Bahia), Rio de Janeiro, and Santos (in the state of São Paulo). [. . .] The overwhelming numbers of immigrants arrived in Santos, destined for the booming coffee plantations in São Paulo State. As each ship filled with immigrants steamed into the port, officials would telegraph the information to the Hospedaria dos Imigrantes located in the city of São Paulo fifty miles away. The newcomers disembarked and boarded train that wound its way from the coast through the mountains, stopping at the British-built Luz (light) train station in central São Paulo (Lesser 2013, p. 73).

Immigrants were impressed by the welcome scheme, having the feeling their arrival would preclude good things. The Hospedaria had a capacity for a thousand people. There they provided immigrants with typical food from Brazil, and bathroom facilities (Lesser 2013, pp. 74–75). The abovementioned incentives, as well as many others, managed to maintain the immigrants inside the country. “Between 1872 and 1972, fifty-seven percent of the 5.35 million newcomers to Brazil would settle” in São Paulo (Lesser 2013, p. 72). These numbers referred not only to Italians and Spaniards. In fact, São Paulo owes its current population mix also to many other ethnic groups that migrated to the country during the decades: “Germans and Russians; Middle Easterners: Lebanese, Arabs, and Armenians; and Asians: Japanese, Chinese and Koreans” (Kent 2006, p. 279), not to mention Jews and AfricanBrazilians. The economic situation of Brazil has changed between the Great Depression and the end of World War II, as coffee prices and market dominance had dropped. In this context: Coffee plantations in São Paulo and Rio de Janeiro were abandoned, divided, or sold. Brazil’s fazendas, run for centuries as family fiefdoms, often became the property of large corporations that began to harvest products like soybeans and sugarcane for local and international markets (Lesser 2013, p. 177).

In comparison with other Latin American societies where there was an urban primacy, Brazil remained as a rural country and transformed itself into an industrial country only at the end of twentieth century: The changes in agricultural production, new infusions of international capital, and increasing orientation to export led to industrial growth. Some plantation owners had begun investing in factories in the nineteenth century and that trend continued. Numerous immigrants and their descendants did the same. By end of the twentieth century, industrial Brazil was producing everything from automobiles to airplanes (Lesser 2013, p. 177).

44

3 Historical Aspects of Migration in Brazil and in Germany

Indeed, this industrial growth in Brazil was strictly connected to immigration. While developing new immigration policies in 1943, Brazil’s Immigration and Colonization Council (CIC) received some inputs from Roberto Simonsen, who argued that “immigration should be linked to industrial development rather than agricultural production. Only European immigrants, he believed, had the technological qualifications and the social and political culture necessary to modernize Brazil” (Lesser 2013, p. 178). This meant that people coming from Asia and Africa continued to be banned. During the 1950s and the 1960s, Brazil made immigration agreements with other countries, in order to facilitate the entry of people from those countries to Brazil. This was the applied to the Netherlands (Decreto 30.692 from 29/03/1952) for example, whereby the Brazilian government even financed the travel costs and accommodation of Dutch people. However, Dutch people did not feel very attracted to this agreement, and this led Brazil to make other agreements with two other countries: with Japan (Decreto 52.920 from 22/11/1963) and Italy (Decreto-Lei 57759/1966). Both agreements increased the number of people coming from those countries even more (Lopes 2009, p. 281). Still, it is important to mention that the agreement with Italy during the 1960s was signed in order to encourage Italians to go to Brazil, as, after the war, Italy was interested in sending agricultural workers abroad rather than skilled immigrants; at the time, Brazil was pursuing was the latter however (Lesser 2013, p. 180). In fact, this was the second attempt from Brazil to attract even more Italian nationals to the country. For instance, by the end of the nineteenth century, the Italian Government was discouraging Italians to emigrate to Brazil, due to the very poor life and work conditions of immigrants. Pressed by disease outbreaks and epidemics, which affected not only the population but also the economic development of the country as a whole, São Paulo’s government developed a series of public health reform measures in order to attract more immigrants (Andrade 2017, p. 87). It is also important to mention that Brazil experienced a postwar Asian entry, receiving people not only from Japan, but also from China and Korea (Lesser 2013, pp. 180–183). Sbalqueiro Lopes analyses the transition of Brazil from a country of opportunities, attracting immigrants from Europe and Asia, to a country of emigration (Lopes 2009, pp. 281–282). The Constitution of 1967 confirmed the military dictatorship in the country. Until 1986, Brazil experienced a falling immigration rate. Not only because Europe and Japan no longer had surplus population, but also because people with various political ideologies were not admitted to Brazilian territory anymore (the military did not want, for example, Russians, Italians or other immigrants with communist ideologies). From 1967 onwards and until today, emigration, immigration, the entry of immigrants into the country, and extradition and expulsion of foreigners were no longer contained in the Brazilian Constitution. According to Article 22, XV of the Brazilian Constitution, the Union has exclusive power to legislate with respect to these subjects (Lopes 2009, p. 281). Isolated by its own legal provisions, in the 1970s Brazil became a country closed to any incoming migratory movement. This policy was ensconced in the Brazilian

3.1 Migration in Brazil: Background and Current Trends

45

Foreigners’ Statute (Estatuto do Estrangeiro), which was developed by the military government and entered into force in 1980. It limited immigration to specialized labor only, in order to provide technology and productivity for the development of the country (Lopes 2009, p. 282).

3.1.1

The Brazilian Diaspora

The expression “the lost decade” could be applicable to those indebted countries that had to adapt themselves to the structural adjustment policies developed by the International Monetary Fund (IMF), losing their financial support, and having to deal with economic and social problems during the 1980s, as stated by Valença: the 1980s in Brazil were also considered as “the lost decade”, and was marked by “economic stagnation and mounting social problems” (Valença 1998, p. 1). In the 1980s, the growth rates in Brazil went down and there were many years of negative growth. The recessive measures came at a great social cost to the country, and the high unemployment rates reflect this. As a consequence, poverty became a reality for many Brazilians and informal work was the first solution for many Brazilian families (Fausto 2002, pp. 545–546). The lost decade was, then, a substantial motivation for many Brazilians to emigrate.9 “Despite a reduction in international migration in the 1990s, most of the emigrants who left Brazil in the 1980s never returned to the country, giving rise to a significant group of Brazilians living abroad, a phenomenon which some authors refer to as ‘Brazilian Diaspora’” (Brzozowski 2012, pp. 137–138). It must be stated, however, that the diaspora was not solely a characteristic of the Brazilian movement of people during this period. In the latter part of the twentieth century, “Latin America has undergone major changes as international out-migration has become increasingly common” (Kent 2006, p. 387).10 But it must be acknowledged that there are contrary opinions to this observation. In this context, Patarra argues (2005, p. 26) that the movement of Brazilians during this period does not correspond to “leaving waves” of emigrants, or to a “Brazilian diaspora”, or to other terms frequently used by the press and even by some in academic circles, to refer to the social issue Brazilian emigrants. According to Patarra, the increasing numbers of Brazilians leaving the country during this period presents the hypothesis of circularity, which was evidenced by qualitative statements and research, and reinforced by the existence of consolidated networks. Patarra mentions the example of Japan— in which Japanese people built strong social connections to Brazil due to waves of

9 Teresa Sales adds that not only are social or economic matters considered as the main reason for the Brazilian diaspora. The author does an extensive analysis of the emigration of Brazilians in the 1980s and in the 1990s, using economic arguments and theories. For more details, see: Sales (1995). 10 Further information on the Latin American diaspora, focusing on other countries apart from Brazil, can be found in Robert Kent’s analysis. See pp. 154–178, as well as pp. 365–389.

46

3 Historical Aspects of Migration in Brazil and in Germany

Japanese immigration in the beginning of the twentieth century—as well as the case of agencies that promise the “American Dream” in the USA at prices ranging from US$ 10,000 to US$ 20,000. We believe that consolidated social networks in a certain country play an important role in migration, and they are part of what is called costs of migration.11 Therefore, we still consider this abovementioned period as a diaspora in Brazil, as one of the reasons of emigration was the possible connections the emigrant had in a specific country. Also other factors, such as the comparison between housing costs and the average wage in the receiving country, play an essential role in the migration movements and belong to the migration costs (Bayer and Juessen 2012, p. 377). The complexity of the migration costs is therefore not to be dismissed: migration costs consist not only of high or low housing costs, or of strong or weak social contacts. Migration costs also include administrative fees, and the migrants’ obligations to the receiving country (for example, the tax-paying obligations) (Sykes 1992, p. 18). In addition to these costs, the current political situation in the receiving country, the fact that contacts and relationships are lost in the country of origin, and the relatively long time and effort which immigrants require to learn a new language should also be considered. The adaptation to a new culture and a new environment, as well as difficult decisions, such as, to which school the children should go, cannot be ignored in the migration costs (Eger and Weber 2014, p. 2). Whilst these are important points in the context of an economic analysis of migration law, these factors go beyond the historical scope of this chapter.

3.1.2

Current Trends Regarding Migration in Brazil: What Comes Next?

In the 2000s, international immigrants (as well as Brazilians who emigrated during the recession years) started to view Brazil once again as a country of opportunities. This phenomenon was related to the favorable economic performance experienced by Brazil from 2003 on. Employment rates, as well as incomes, started to rise and new foreign investments were attracted. An international financial crisis triggered during the last quarter of 2008 also stimulated immigration, especially from those residing in the United States of America and in the Eurozone countries (Guimarães 2012, p. 233). Brazil’s current immigration trends comprise not only refugees, as mentioned in the beginning of this work, but also voluntary migrants who are in search of better life conditions. An important point to mention, when describing Brazil’s current migration tendencies, is the arrival of black migrants (refugees, as well as voluntary migrants).

11 On the effect of local ties, wages, among other factors that affect migration decisions, see: Michaelides (2011).

3.1 Migration in Brazil: Background and Current Trends

47

As mentioned above, hundreds of years of slavery have marked Brazil’s history, culture and, above all, Brazilian society in such a way that, today, immigration of black people into the country is seen from a different perspective. For instance the contemporary increasing strictness of European and American migration policy, combined with Brazil’s international visibility in the run-up to the Football World Cup 2014, as well as with the previous economic growth (occurring until late 2014), led the Senegalese to leave for Brazil in search of jobs and better opportunities. They saw in Brazil a possibility to live in a welcoming and multiracial democratic country. Although Brazilian racial democracy12 is constantly internationally considered as one of the most interesting and cherished characteristics of Brazilian culture, some situations experienced by black immigrants in Brazil prove this racial harmony in the country to be a fallacy. Instead of integration and acceptance, black immigrants are faced with something unknown to them in their African communities: racism (Oliveira and Araújo 2018, pp. 435–438). Not only because of the slavery in Brazil, but, according to Minchola (2015, p. 92), because of the whitening process Brazil has experienced, which was already explained above, Senegalese immigrants in Brazil and also other immigrants with black/African phenotypes suffer from stigmatization and racism, which has not yet been overcome by Brazilian society. Making the situation worse, prejudice against these people is a more intensive one, since these immigrants come from the Global South. Moreover, even though in some regions of Brazil immigration played an important role in the region’s history and identity, the race and nationality differences trigger many hostilities towards black immigrants. This is the case, for example, in the South of Brazil, where—given the presence of the descendants of European immigrants (who immigrated in the nineteenth and twentieth century)— the integration of Senegalese immigrants and also of other black immigrants became a difficult task and the even physical aggressions have become a constant issue (Minchola 2015, p. 92). The same hostility can be observed with immigrants who came from Haiti. After being victims of a strong earthquake on January 12th, 2010, that destroyed Port-auPrince and other cities, such as Leogane and Jacmel, leaving 222,570 Haitians dead and affecting 3.5 million people in the entire country (Godoy 2011, p. 45), Haitians also suffer from prejudice within Brazilian territory. Haitians started to flee to South America and the Caribbean,13 including Brazil and, until September 2016, according to Brazilian Government, there were about 80 thousand immigrants from Haiti in Brazil that were either in possession of a humanitarian visa or were about to acquire a permanent residence permit (Portal Brasil 2016). These men and women also suffer 12 The expression racial democracy refers to the fact that racial mixture in a population—in this case, in Brazil—“is emblematic of racial harmony and insulated from racial discord and inequality, along with the presumption that all negative racial distinctions were abandoned with the abolition of slavery”, see: Hernández (2016, p. 189). For more details on this definition, see also: Telles (2004) and Alberto (2013). 13 For an in-depth explanation of the reasons that have taken Haitians to Brazil, see: Silva and Jubilut (2015).

48

3 Historical Aspects of Migration in Brazil and in Germany

from physical and social violence because of their black skin, especially in regions of Brazil where European immigration was present.14 Racism is not the only characteristic of the inflow and outflow of migrants in Brazil. The current political and economic crisis might also be influencing the entry and departure of migrants. From 2013 to present, several other factors might be playing a role in Brazil’s current migration dynamics. Based on Santos’ and Rossini’s researches, one could mention: (a) the fall of international commodity prices, negatively affecting Brazil’s trade balance; (b) long periods of droughts in the Northeast region of the country, adding even more vulnerability to the region; (c) environmental disasters, such as the collapse of a mining dam in Minas Gerais in November 2015, which caused damages to rivers and valleys in a region which is already characterized by emigration; and (d) outbreaks of diseases, such as dengue and yellow fever (Santos and Rossini 2018, pp. 285–286). The authors also consider as pull and push factors of migration the political instability of the country (with recent corruption scandals and the impeachment of the President in 2016), as well as the economic crisis, which will intensify the social inequality in the coming years. Santos and Rossini even mention that, once the social inequality becomes more pronounced, the profile of emigrants might change: even though many Brazilians from different social strata might have their reasons for leaving the country,15 emigration will most probably be restricted to more advantaged social classes because they have more resources to provide and organize a new life abroad. One example of this is the recent increasing of investor visas granted to Brazilians, especially for investments in Portugal (Santos and Rossini 2018, p. 286). When it comes to work opportunities for Brazilians and immigrants as an emigration and/or immigration factor, it can be stated that there was a change on the quantity of work opportunities offered in Brazil, in all sectors. Moreover, it must be said that the service sector has always offered employment—albeit low skilled ones—not only to immigrants, but to Brazilians as well. In order to examine the abovementioned statements, a brief analysis of the profile of foreign workers in Brazil during the last period of economic growth follows (specifically between 2010 and 2011). Between 2010 and 2011 the number of foreigners who were allowed to work in the country increased from 56,006 to 70,524, representing 25.9% more in just 1 year. During 2008 and 2009 the number of authorizations granted was around 43,000 (Guimarães 2012, p. 225). If one takes into consideration the number of temporary working authorizations given to foreigners in 2011, 17,738 of them are related to people who came to Brazil to either work on a foreign vessel, or in a foreign offshore platform, which represents 16.7% more than such authorizations given in 2010.

14

For some examples of the violence suffered by these immigrants, see: Mattos et al. (2015, pp. 76–77). 15 Not only because of the previous mentioned reasons, but also because of the escalation of urban violence, and political instability, as also presented by the authors, see: Santos and Rossini (2018, p. 286).

3.1 Migration in Brazil: Background and Current Trends

49

In addition to that, 14,512 of these temporary authorizations were given to foreign seafarers, who were employed on board of a foreign tourism vessel operating in Brazilian waters; 12,001 authorizations were given to artists or sportsmen, with no employment relationship (an increase of 41.7% compared to 2010); 10,715 in technical assistance, for a term of up to 90 days, without employment relationship; 5540 in technical assistance, technical cooperation and technology transfer, also without an employment relationship; 4615 specialists (without employment relationship) were given the authorization, and the rest (1569) were in other occupations. Regarding the schooling of workers who received temporary work permits in 2011, a contingent of 1734 was composed of masters and doctors, equivalent to 2.6%. Compared to the year 2010, this contingent (then 584) almost tripled. Foreigners with university degrees totalized 36,517 people, representing more than the half (54.8%) of the total number allowed in 2011 to work in Brazil. In this same year, just over a third (35.6%) had completed high school (Guimarães 2012, pp. 225–226). When analyzing permanent authorizations conceded by the Brazilian Government, the number of visas granted to individual foreign investors increased from 820 in 2010 to 1020 in 2011, an increase of 20.3%. Visas granted to members of a company, such as administrators, directors, managers and executives with management powers were increased by 14.6%, from 1218 to 1396 between 2010 and 2011 (Guimarães 2012, p. 226). It is possible to noted that Brazil received in those years a mixed profile of foreign workers, including not only high-skilled immigrants, working as managers of an international company or as executives investing in Brazilian economy, but also people who had solely a high school degree, who work for the secondary labor market. The fact is that one belies the segmentation of the labor market, where the worst working conditions and the lowest incomes inside a society remain with the immigrants, as further explained (Sasaki and Assis 2000, p. 8). Sasaki and Assis explain that segmentation theorists argue that there is a complementarity between the roles of the immigrant and the native in the labor market. These two groups of workers would attend different job opportunities in a labor market that is divided into two categories: the primary and the secondary labor market. The primary is characterized by requiring high qualification, better salaries and possibilities of hierarchical rise and are present in large capitalist enterprises. The secondary often offers low wages, high turnover, low qualification and few possibilities of hierarchical ascension. This secondary market would be occupied by migrant workers. In this sense, segmentation theorists argue that migrants do not compete with natives for employment (Sasaki and Assis 2000, p. 8). This means that, in fact, immigrants have always worked in the service sector, even during the period where there was no economic or political crisis in Brazil, because, according to the segmentation theorists, they do not compete with natives for employment. In fact, “many immigrants tend to be employed in low-skill occupations and experience a sizeable wage gap with natives despite average higher levels of education” (Barret et al. apud Turner 2010, p. 321). Minchola adds that, in Brazil, many Brazilians also make ends meet in this secondary labor market, but, progressively, these positions have been left by

50

3 Historical Aspects of Migration in Brazil and in Germany

Brazilians in search of better job opportunities. For immigrants, however, this sector is—most of the times—the only one available. Even the most qualified immigrants have been struggling to enter qualified positions, due to bureaucratic exigence, such as the revalidation of their foreign degrees in Brazil. In this secondary labor market, civil construction and the work on foodstuff production and meat packing activities consisting of cattle, pig, sheep and poultry slaughtering are usual. Work as a street vendor is also a very common one among immigrants, in which lots of other complexities, such as the availability of the products sell, are involved. It is believed that the result of the current political and economic crisis will rely not necessarily in the acceptance of less skilled working positions in the secondary labor market, but in the emigration and in the giving up on the decision of immigration to Brazil (Minchola 2015, pp. 93–94). Brazil seems to be, nowadays, approaching itself to the similar conditions that led Brazilians to emigrate in the 1980s and in the 1990s. Not only gross social inequality, but also high unemployment rates in all sectors, as well as a collective feeling of pessimism and despair, due to the latest developments on corruption scandals, might be moving not only many Brazilians away from their country, as well as foreigners, in search of better life conditions. Still, between 2006 and 2016, immigrants considered Brazil as a land of opportunities: during these 10 years, according to the Brazilian Federal Police Office, the number of immigrants increased 160%.16 However, as the crisis is still considered as a recent one, and it is early to affirm which path both Brazilian people and immigrants in Brazil are going through.

3.2

Migration in Germany: Backgrounds and Current Trends

The first observation a layperson would make if he or she were asked about the main difference between the movement of people in Brazil and in Germany, would be that Brazil is a country made of immigrants, whereas Germany is a non-mixed race country, which has experienced few migration flows. This assertive is partially right and partially wrong and this is why it is necessary to present a historical perspective of migration movements in Germany, before analyzing the rights immigrants are entitled to in both countries. In fact, Germany is considered as one of the countries in the world that currently receives the greatest number of immigrants (Hailbronner 2014, p. 1).

16

The Federal Government in Brazil allows citizens to ask, through an official website, for all available and non-secret information detained by the Federal Government. The system for access to information, provided by the Federal Government (Sistema de Acesso à Informação), is available online via http://www.acessoainformacao.gov.br/ and it was used in order to ask for data about the increase in the number of immigrants in the country. The information requested through the portal was sent directly to the author by e-mail and are available upon request.

3.2 Migration in Germany: Backgrounds and Current Trends

51

This subchapter concentrates on three main topics: firstly, after a brief explanation on the formation of the German State, it will follow a description of migratory movements from the Thirty Years War until the end of the Second World War. The second topic describes how Germany started to turn into a mainly immigration country in the post-WW II period, while the third part focuses on the responsibilities Germany assumed in the field of migration as a member of the European Union, mentioning the most recent difficulties that derive from the so-called “migration crisis”.17 A disclaimer is once again necessary, as the goal of this chapter is not to exhaust all historic occurrences throughout Germany’s existence, but to briefly outline the historic background of Germany’s movement of people. This retrospective of migration in Germany in this work begins by the creation of the German State. Germany, as a nation state, emerged in 1871, and its material existence as a political entity since the nineteenth century—even though it was formally divided between 1949 and 1990—brings some difficulties in identifying and analyzing the movement of people in the German-speaking territories since then (Relly 2016, p. 274). Behind the unified German state of 1871, there were innumerous sociopolitical realities that could not be reduced to the idea of a unitary nation: Germany was by definition an Empire, a Kaiserreich. (Hobsbawm apud Relly 2016, p. 274). Germany was, then, a late comer under nations and nation states and, besides that, “in the newly stablished German Empire there was no common idea of law of German citizenship, but every state of the former ‘North German Confederation’ maintained its citizenship category (like Prussians, Bavarians, Württemberger)” (Pries 2013, p. 57). Consequently, each state was responsible for the attribution of its citizenship. It is important to mention that, at that time, the territory that comprised the German Empire had experienced few immigration movements. Before the existence of the German Empire, by the time Europe split into Catholic and Protestant, and the Thirty Years War (1618–1648) took place on the continent, regions in Central Europe—including the German states—needed immigrants in order to rebuild their economic and social structures (Harzig and Hoerder 2009, p. 32). As a consequence of the Thirty Years War, German territories lost one third of its population. Not only because of the battles, but also because of everything that was involved in those combats: hunger, epidemics, expulsions from territories and escapes. All these consequences were felt more intensively in the rural areas rather than in the urbanized ones (Bade and Oltmer 2008, p. 142). The occupation of the German territories—in the seventeenth and in the eighteenth centuries, especially after the Thirty Years War—was characterized by a mercantile migration policy developed by the territorial lords, which was centered on the number of economically active population and on the potential tax-paying population (the so-called “Peuplierungspolitik”) (Bade and Oltmer 2008, p. 143).

17

On the migration crisis see Sect. 3.2.2.

52

3 Historical Aspects of Migration in Brazil and in Germany

Religious refugees, such as the Hughenots18—as reformed protestant refugees from Catholic France—also contributed to the intra-European migrations in the seventeenth century (Harzig and Hoerder 2009, p. 32). In German lands, for instance, the Hughenots belonged to the most extensive and most significant group of immigrants in terms of economy, culture and politics (Bade and Oltmer 2008, p. 143). The majority of the Hughenots that were immigrants in German lands19 belonged to the middle and low class, while a very small portion of immigrants20 were among a successful group of business people and retailers (Bade and Oltmer 2008, p. 144). Moreover, the Early Modern Period in the German territories was also marked by several small-scale immigration flows, which derived from family- run businesses, such as marriage, and the moving of servants. In small proportions, there were also in that period immigrations that were more common among some particular groups of workers, such as the Italians that came to German territories in order to work as chimney sweepers (Bade and Oltmer 2008, pp. 144–145). As a consequence of those movements of people, the first two centuries right after the end of the Thirty Years War were marked by a rapid population growth in the German territories. Nevertheless, continental and overseas emigration in the eighteenth and in the nineteenth centuries started to reshape German territories (Bade and Oltmer 2008, p. 146). From the middle of the eighteenth century to the 1830s, the continental emigration from Germans to Eastern and South Eastern Europe dominated the movements; the transatlantic emigration, mainly to the USA,21 occurred until the late nineteenth century (Bade and Oltmer 2008, p. 146). In fact, in the whole European continent, in the century after 1820, there is an estimation that around 55 million people emigrated to the Americas (Moses 2011, p. 372). It is important to mention that in the late 1880s, Germany was exploring lands outside of Europe (i.e., focusing on the colonial expansion, also known as “Platz an der Sonne”) (Wessels 2001, p. 110). Germany had a rapid imperial expansion, which lasted 34 years and also caused emigration movements: Germany became a modern imperial nation in April 1884 with the extension of “protection” to areas of Southwest Africa controlled by Adolf Lüderitz (an area originally known as Lüderitzland, but subsequently identified by the more mundane German Southwest Africa, and finally as Namibia). Later that year, while operating on behalf of the German Colonial

18

For more details about the Hughenots, see: Asche (2008) and Niggemann (2016). It is estimated that, from the 200,000–300,000 Hughenots that fled from France, about 30,000–40,000 settled in German lands, mainly in the north of the river Main, especially in the region Brandenburg-Prussia. For more details, see: Bade and Oltmer (2008, p. 143). 20 For example, Swiss that immigrated to Alsace and Baden; religious refugees from the Austrian territories that moved to Franconia and Swabia; or Saxony and Upper Lusatia territories, where protestant refugees from Bohemia fled to. 21 Brazil was, after the USA and Canada, the third country that received the biggest number of German immigrants. Prussians belonged to the majority of Germans in Brazilian lands. For more information about the presence of the different German people in Brazil (in particular about Prussians), see: Relly (2016). 19

3.2 Migration in Germany: Backgrounds and Current Trends

53

Society, Karl Peters brought German East Africa, now Tanzania, under the protection of the Imperial government. Otto von Bismarck ordered Togo and Cameroon to be incorporated into the German sphere in Africa in the summer of 1884, and the German government expanded its overseas empire by bringing part of New Guinea, Samoa, and the Bismarck, Marshall, Caroline, and Mariana Island chains under its imperial control and by establishing an occupation zone in China around Kiaochow (Poley 2005, p. 12).

In the early 1890s both transatlantic and continental emigrations became less intense and there was a period of immigration of Polish workers that came to the valley of the river Ruhr in order to work in the German urban industrial region (Pries 2013, p. 57). These workers were strictly considered as “foreign workers” rather than immigrants, they were not welcome in Germany they were, besides, subjected to very strict immigration conditions, persecuted by a strong “anti-polish sentiment” (Bade and Oltmer 2008, pp. 150–151). Those foreign worker movements were essential to maintain Germany’s economy active during the First World War and, after the conflict, Polish people were obliged to stay in Germany, as forced workers, so that Germany could control the movement of people on the borders much more easily: from undesired (but necessary) workers,22 they became essential workers for Germany’s economic urgencies (Bade and Oltmer 2008, p. 151). The First World War made space for extreme nationalism, for the exclusion of minorities, as well as for the expansion of xenophobia, making place for the Nazi regime. As in almost every post-war period, escape, expulsion and resettlement contributed to the immigration flows right after the First World War. During the Weimar Republic (1918–1933), not only the prevention of permanent settlement of foreigners became stronger and the rules for immigrants became even more restrictive (especially for Jews), but also Germans opted once again for emigration overseas as well as within the European continent (as an example, German maidservants in the Netherlands and the continuous German immigration to Brazil) (Bade and Oltmer 2008, pp. 152–153). “While the Weimar Republic and the early Nazi years represented the quietest period in German migration history, the economy of the Second World War developed an unquenchable thirst for foreign labour, fitting in with Nazi racial ideology” (Panayi 1998, p. 70). Ironically, the Third Reich period witnessed perhaps the greatest number of foreigners living in Germany, even though Germanness (Volkstum) was the desired ideology of race in the country: “An estimated 13 million forced laborers (Fremdarbeiter) from occupied territories all over Europe contributed to the upkeep of the German economy before and during World War II” (Schunka 2016, p. 14). The historical facts so far exposed, in summary, conclude that, until 1945, Europe was rather a continent of emigration and, in fact, for many European countries, “net emigration continued until well into the 1980s” (Hess and Green 2016, p. 315).

22 In order to understand the anti-polish sentiment, as well as the limited rights Polish people had during the Kaiserreich, see: Gehrke (2016).

54

3 Historical Aspects of Migration in Brazil and in Germany

Germany followed this tendency,23 consecrating itself mainly as an emigration country, “especially during the last quarter of the nineteenth century until the end of World War II” (Pries 2013, p. 57). Nevertheless, it is important to recognize that, even though immigration into Germany was not considered as “historically relevant as the emigrations to the New World, to Russia, and elsewhere” (especially by the most conservative politicians), the idea that “Germany boasts a rich history of hosting different immigrant groups” (Schunka 2016, pp. 1–2), as it has been herewith described, has been recently gaining acceptance.

3.2.1

Germany and the Migration Movements After the Second World War

About ten to twelve million people who were victims of the Nazi Regime managed to survive the work camps, concentration camps and death camps; those people were called “Displaced Persons”, and belonged to 20 different nationalities, speaking more than 35 different languages (Bade and Oltmer 2008, p. 157). In the period between 1945 and 1950, “about ten million people (forced labourers, prisoners of war and concentration camp prisoners) left Germany and returned to their countries of origin” (Rühl 2009, p. 131).24 The post-war period was also marked by large-scale immigration to Germany. According to Rühl, these immigrants consisted mainly of “German refugees (Vertriebene) from the eastern parts of the former ‘German Reich’, from Eastern European countries and from the Soviet Union” (Rühl 2009, p. 131). In 1950, despite the millions of lives lost during the Second World War, Germany’s population was of approximately 68 million people25 and, in the same year, when the forced resettlements came to an end, “7.9 million refugees and expellees were resident in

23

However, it is important to register that Bade and Oltmer consider that the German-speaking world and, more specifically Germany, was, throughout its history, rarely either a country of immigration or a country of emigration. Germany, according to them, was mostly both an emigration and an immigration country at the same time, and with immense differences between the meaning of the two immigration phases, which has brought problems and various integration perspectives. We believe though that immigration and emigration movements happen simultaneously in many regions of the world, and it was not different with Germany. The difference is that, in some periods, the number of immigrants surpasses the number of emigrants, or vice-versa. For more information on Bade and Otlmer’s theories, see: Bade and Oltmer (2008, p. 141). 24 Following the explanation in Sect. 3.1 about slaves and their non-migrant status, we also do not see war prisoners, forced laborers and prisoners of concentration or death camps as migrants. This is the reason why their return to their countries of origin should not be considered as mass emigration movements. 25 In 1940, Germany’s population was of approximately 70 million people. For more details, see: Schunka (2016, p. 15).

3.2 Migration in Germany: Backgrounds and Current Trends

55

the Federal Republic of Germany and 3.6 million in the German Democratic Republic” (Rühl 2009, p. 131). The post-World War II migrations also meant the emergence of various expressions in order to refer to newcomers in Germany: The terms used by the majority, in public discourse and in official statistics ranged from aliens (Fremde), guest-workers (Gastarbeiter), foreigners (Ausländer), migrants (Migranten), immigrants (Einwanderer), to-migrants (Zuwanderer), foreign co-citizens (ausländische Mitbürger), resettlers (Aussiedler), persons with migration background (Menschen mit Migrationshintergrund) or persons with migration history (Menschen mit Migrationsgeschichte) (Pries 2013, p. 55).

These categories demonstrate the way German society started to see certain groups of immigrants, including or excluding them, giving them (or not) rights and access to resources. These denominations are related to the fact that, right after the WWII, in the words of Panayi, “Germany became a vast refugee camp, in which millions of people wandered in all directions, including the foreign workers returning to their homes, mostly in eastern Europe” (Panayi 1998, p. 70). Moreover, ethnic Germans,26 who were expelled from their homelands, also immigrated to Germany, either because they were no longer welcome in the states where they were living in (due to a revenge feeling coming from the local population), or because of the incorporation of Eastern Prussia into Poland, in 1945. In the late 1950s, economic growth and socio-political normalization began in Germany and, during the so-called “German economic miracle” several types of

26 It is important to understand the meaning of the terms “ethnic Germans” or “German ethnic origin” which were defined in that period of history. Pries analyzes the terms and affirms that they were used in different ways. Firstly, Pries refers to the German Constitution of 1949 (Grundgesetz or, referred to in the English version as Basic Law), which defines who are the German nationals by the ius sanguinis criteria, giving Germans their “ethnic origin”:

Article 116 [Definition of “German” – Restoration of citizenship] (1) Unless otherwise provided by a law, a German within the meaning of this Basic Law is a person who possesses German citizenship or who has been admitted to the territory of the German Reich within the boundaries of 31 December 1937 as a refugee or expellee of German ethnic origin or as the spouse or descendant of such person. [. . .]. The full text of the German Constitution in English is available via https://www.gesetze-iminternet.de/englisch_gg/englisch_gg.html#p0724. Besides this general category of ‘German ethnic origin’, which permeates the Basic Law and all minor laws and provisions, there is a second meaning of the category ‘ethnic German’ in the sense of ‘resettler’. Besides the millions of ‘displaced persons’ (‘Vertriebene’) who returned, escaped or were pushed out to Germany as ‘ethnic Germans’ after World War II until the beginning of the 1950s, there are those of ‘German ethnic origin’ who came to Germany since the 1950s either as descendants of the German settlers who migrated towards Russia since the eighteenth century and were forced to resettle in Kazakhstan during the Stalin-era (mainly the ‘Wolga-Germans’) or as having lived in former Eastern German territories or in other Eastern or South-Eastern European regions (Aussiedler). Those who came to Germany since January 1, 1993, normally are called ‘late resettlers’ (Spätaussiedler) (Pries 2013, p. 63).

56

3 Historical Aspects of Migration in Brazil and in Germany

voluntary worker scheme needed to be organized (Pries 2013, p. 63). Until the construction of the Berlin Wall, in 1961, Germans from the GDR fulfilled the social and economic necessities of the Federal Republic of Germany, offering their labor force. After the physical barrier between GDR and FRG was settled, other European nationals were needed in order to support Germany’s economy (Bade and Oltmer 2008, p. 159). In this context, it was developed in Germany a temporary guest-worker program, in which the immigrants were called guest workers (Gastarbeiter); this program became Europe’s largest and most sophisticated program, as not only Germany, but also other European countries were suffering from labor shortages (Goldin et al. 2010, p. 87). Germany signed bilateral agreements with Italy (1955), Spain (1960), Greece (1960), Turkey (1961), Portugal (1964), and Yugoslavia (1968)27 and the goal was to easily “recruit unskilled labor for jobs in the rapidly growing industrial sector” (Goldin et al. 2010, p. 87). As a rule, foreign labor migrants took over unskilled and semi-skilled activities in the industrial production with high physical demands (which caused health problems) and wage conditions that many locals did not want to accept. Men worked mainly in iron and metal production and processing (mechanical engineering and the automotive industry), as well as in the construction industry. Women were particularly found in the manufacturing sector (textile and clothing industry), as well as in the food and beverage industry (Oltmer 2016b, p. 58). Italians, Spaniards and Greeks belonged to the majority of the immigrants in Germany when the program started, but from the end of the 1960s on, Yugoslavian and Turkish immigrants already belonged to the majority of the guest workers’ population. The percentage of immigrants in the Federal Republic of Germany raised from 1.2% in 1960 to more than 4.9% in 1970 and, later on, in 1980, 7.2% of Germany’s population was formed by immigrants (Bade and Oltmer 2008, p. 160). In fact, many of the “temporary” migrants ended up settling down in Germany, starting a family and establishing their roots in German territory (Goldin et al. 2010, p. 88).28 In 1973, when already 11.9% of Germany’s entire workforce was foreign-born and by the time migrant workers were employed in low-skill jobs either in expanding industries or in unattractive trades, the “oil crisis” changed the dynamics of immigration in Germany (Goldin et al. 2010, p. 88). Germany29 stopped the recruitment

27 Besides those ones, according to Bade and Oltmer, Germany also signed bilateral agreements with Morocco in 1963 and with Tunisia in 1965, but both have never entered into force, see: Bade and Oltmer (2008, pp. 159–160). 28 Bade and Oltmer add that, by the end of 1970s in Germany, many foreign families were living under a social paradox, once they were in an immigration situation, but without living in an immigration country. As Germany did not present itself and perceive itself as an immigration country, the welfare state of those immigrants, as well as their other rights was not a priority of the German State in the 1970s, see: Bade and Oltmer (2008, p. 161). 29 Not only Germany, but also other European countries stopped with the recruitment of foreign labor force, such as Switzerland (1970), Denmark and Sweden (1972), see: Oltmer (2016b, p. 59).

3.2 Migration in Germany: Backgrounds and Current Trends

57

of guest workers (Anwerbestopp)30 and prohibited entries of workers that did not belong to the European Economic Community, allowing the extension of the permanence of foreign workers under the condition that no German citizen would apply for those very same jobs (Goldin et al. 2010, p. 88). Therefore, the period between the end of the recruitments and “the end of the 1980s was primarily characterized by migration through family reunification” (Rühl 2009, p. 132). It must be stated, though, that the oil crisis was not the only impulse factor that contributed to the end of the guest worker system in Germany. In fact, according to Schunka (2016, p. 16), the oil crisis was rather an excuse in order to avoid the mass migration. The guest worker system started to be questioned due to several facts. Firstly, in the 1970s, the production processes were intensively being moved to developing countries (Goldin et al. 2010, p. 88) and the old industries (iron and steel industries, textile industry and the mining sector) started to suffer their decline. Besides, the rationalization and automatization of the industries in the 1970s and in the 1980s reduced the need for unqualified workers and, when the digital revolution started in the 1980s, human working force became even less necessary (Oltmer 2016b, p. 58). Moreover, “migrant laborers had supplied replacement labor for German nationals moving out of low-status, low-skilled jobs, a need that had declined with the economic downturn” (Goldin et al. 2010, p. 88). Besides the economic downturn, we believe that, in the 1970s, Germany’s population overcame the human casualties that happened during the war and German population started to become economically active (and, consequently, extra workers from abroad was no longer urgently necessary). Besides those facts, the encouraging to the integration into the German society gave a different view to the immigration into Germany: [. . .] the scarcity of labor during the [economic] boom period of the 1960s had brought about improvements in the rights concerning residence status and family reunification. It became clear that Germany would need foreign workers indefinitely, and this realization led to policy changes toward encouraging greater integration. As result of being granted residence and family reunification rights, workers became less mobile, and the ‘rotation’ principle no longer applied. Germany then had to start addressing the social costs of the labor and supply housing and schooling and undertake steps to facilitate integration, steps never envisaged under the concept of a ‘guest-worker’ (Goldin et al. 2010, p. 88).

In fact, the establishment of the foreign workers had been already observed in the second half of the 1960s, when guest workers, for example, started to leave the accommodations that were offered by the industries and settled down in private apartments (Oltmer 2016b, pp. 58–59). In the beginning of the 1970s, the so-called Niederlassungsprozess (i.e., that means, the establishment of the guest workers in German territory), was enacted by the German government,31 so that policies to this phenomenon have been developed, as a counter-reaction. According to the new

30

See: Bade and Oltmer (2008, pp. 159–160). For a deeper analysis of the decisions of the German government in this point, see: Luft (2006, pp. 54–59). 31

58

3 Historical Aspects of Migration in Brazil and in Germany

policies, the arrival of new immigrants should be avoided, under the allegation that this was necessary in order to integrate the immigrants (i.e., foreign workers) that were already in the country, by offering them all kinds of support. From the offer of social rights to the protection and education against xenophobic animosities or acts of discrimination: Germany’s used its best endeavors, and incurred costs in order to solve the so-called “Problem der ausländischen Arbeitnehmer” (which means “the problem of the foreign workers”) (Oltmer 2016b, p. 59). With the end of the recruitment, however, immigration could not be stopped. According to Oltmer, in many respects, the political and social conception of the controllability of spatial population movements proved to be an illusion: in the past two decades, many new migration channels had been opened which could not be closed by a stop of recruitment (Oltmer 2016b, p. 60). Even the special program developed in 1988 to encourage the voluntary return of immigrants to their countries of origin did not stop or backtrack the migration flows into Germany (the so-called “Promotion to the willingness to return” program, or “Förderung der Rückkehrbereitschaft”) (Oltmer 2016b, pp. 60–61). It is important to mention that, in the German Democratic Republic, immigration was also relatively common.32 Even though in a smaller scale, people from Vietnam33 and Mozambique arrived in the GDR for education purposes (Ausbildungswanderung) and/or were employed under similar circumstances when compared to the guest workers in the Federal Republic of Germany. However, those people were isolated from German society and worked under hard conditions. Contrary to the Federal Republic of Germany, guest workers in the GDR did not have the right to family reunification during their working period in the country and also had to go back to their countries by the time their working contracts expired (Bade and Oltmer 2008, pp. 161–162). The opening of the iron curtain changed the migration movements in Germany and in Europe34: after the reunification of the GDR and FRG, Germany became one of the main destinations for refugees, Jews, and repatriates (Aussiedler) (Bade and Oltmer 2008, p. 163). After the German reunification, a new era of immigration in Germany began, as explored in the upcoming subchapter.

32

For more information about immigration in the GDR, see: Schunka (2016, pp. 17–18). Vietnamese still belong to the largest group of immigrants in Eastern Germany, see: Schunka (2016, p. 18). 34 See also: Jahn (1999, pp. 97–99). 33

3.2 Migration in Germany: Backgrounds and Current Trends

3.2.2

59

Migration in Germany Under the European Union Panorama and the Recent “Migration Crisis”

From the time of the guest worker program until the 2000s, Germany had neither thought about enforcing a rotation system, nor had developed structured immigration policies: there was rather a clear separation between Germans and foreigners (Schunka 2016, p. 19). Even though Germany had been constantly receiving rising and various groups of immigrants, “it was not before 1998, when the new government coalition of the Social Democrats and the Green Party took office, that the country’s traditional defensive self-definition, according to which Germany was not a country of immigration, was abandoned” (Rühl 2009, p. 133). This change of view became apparent through some amendments and reforms of migration laws and policies, such as: the reform of the German Nationality Law (1999); the passing of the Green Card regulations (2000)—allowing high skilled non-German specialists to the labor market—; and the Immigration Act of 2004. For the first time, Germany was thinking of the integration of migrants at a national level. “At the end of 2005, about 6.8 million people in Germany held a foreign nationality”, which was 8.2% of the total German population (Rühl 2009, p. 137). The cultural plurality in Germany was already apparent, so that the country itself finally saw itself as an immigrant society, with a rich migration history (Schunka 2016, p. 19). Mushaben (2017, p. 96) clearly illustrates this profile: By May 2014, migration to Germany had reached its highest level in 20 years; over 1.2 million people had entered since 2013. Among them were many jobseekers from Eastern Europe, finally granted freedom of movement as EU nationals seven years after their countries became members of the bloc in 2004. (Only the UK and Sweden had granted immediate freedom of entry to citizens of these new Member States.)

Therefore, it could be argued that the European Union helped the German government to perceive Germany as an immigration country.35 When the existence of the European Union started to be discussed, the cross-border mobility was a central issue, “and the issue of migration has been on the agenda since the Treaty of Paris in 1951, which established the European Coal and Steel Community” (Goldin et al. 2010, p. 90). Later on, in 1985, the Schengen agreement, between France, Germany, Belgium, Luxemburg, and the Netherlands, joined these countries in a border-free Europe and by the time the Schengen Agreement entered into force in 1995, “it removed systematic border controls for people – including third-party 35

For example, when we refer to Entscheidung des Bundesverfassungsgerichts 83, 37, 50ff (foreigners electoral law). Because of the introduction of EU-citizenship after the Maastricht Treaty, Germany started to question whether EU citizens were entitled to participate in elections on the municipal level or if this new possibility opened by Maastricht would interfere in the text of Art. 28 of German Constitution, which was interpreted in the past as giving the right to vote in municipal elections only to German nationals. After this decision of the constitutional court, the text of the German Basic Law has been modified, giving a more detailed regulation on the right to vote in municipal elections for EU citizens (Article 28(1) sentence 3). For more details on this decision, see: Grabenwarter (2009, p. 117).

60

3 Historical Aspects of Migration in Brazil and in Germany

nationals – moving between Germany, Belgium, Spain, Portugal, Luxemburg, and the Netherlands” (Goldin et al. 2010, p. 90). After other countries adopted the Schengen in the 1990s, it was only with the Amsterdam Treaty, in 1999, that the Schengen Convention was integrated “into the EU framework, introducing the Schengen acquis” (Moses 2011, p. 379). According to Wilson, the Amsterdam Treaty proved that migration policy started to arouse interest of the European Community, bringing into life subjects such as the granting of visas and the migration of third country nationals (Wilson 2007, p. 16). In Moses’ opinion (2011, p. 371), migration plays an important role in the larger European project. Firstly, because free labor mobility plays a central role, by the establishment of a common European market and, secondly, because migration helps to create a common European identity. An important step to be mentioned in the European Union context is the special meeting of the European Council, which took place in Tampere, Finland, in October 1999 with the goal of establishing an Area of Freedom, Security and Justice. The conclusions of the Presidency of the European Council were very significant for the development of a common European migration policy.36 During that meeting, Europe was recognized as an immigration region and some crucial points have been discussed, such as: the partnership of the EU with the countries of origin of the immigrants (i.e., with third countries); a common European asylum system; the fair treatment of third country nationals; and the management of migration flows. Attention must be paid to the fact that the EU decided to dedicate itself also to migration movements of third country nationals into the EU, acknowledging the “need for approximation of national legislations on the conditions for admission and residence of third country nationals” (European Union 1999), also giving importance to an integration policy that should aim at granting third country nationals rights and obligations, comparable to those of EU citizens. In reference to migration of EU citizens inside German territory, it must be stated that Germany stands out from the other EU Member States: the country is currently the main target in EU internal migration (Oltmer 2015a, p. 15). Oltmer describes the characteristics of immigrants in Germany in 2013. In that year, for example, 3.1 million nationals of other EU Member States lived in Germany, representing 3.8% of German population. More than the half of them (1.8 million) came from states that were before 2004 already an EU member state, mainly from Italy (550,000) and Greece (316,000). In Germany, 927,000 immigrants came from EU Member States that joined the EU in 2004: eight countries in Eastern Europe, as well as Malta and Cyprus. The majority of them came from Poland (600,000). Romania and Bulgaria, which were admitted to the EU in 2007, were the countries of origin of 414,000 migrants in Germany in 2013, although Romanians (267,000) clearly surpassed the Bulgarians (147,000) (Oltmer 2015a, p. 15).

36 The conclusions of the presidency are available via http://www.europarl.europa.eu/summits/tam_ en.htm#a.

3.2 Migration in Germany: Backgrounds and Current Trends

61

In the last few years, Germany and Europe have been dealing with intense migration issues. Even though refugees do not belong to the core subject of this book, it is important to briefly draw attention to the subject that has been impacting the daily life of Germans and Europeans37: the so-called migration crisis (Oltmer 2016a, p. 133).38 In the summer of 2015, around one million refugees “fled to Europe by land and by sea, hoping to find peace, security, and a chance to build new lives” (Mushaben 2017, p. 95). Throngs of “Africans and Arabs turn Italian and Greek islands, and eastern European railway stations, into refugee camps (and are found dead in Austrian lorries)”; in this context, with increased xenophobic sentiments, the German chancellor Angela Merkel, in 2015, condemned any kind of xenophobic manifestations and showed Germany’s “readiness to take more Syrian refugees and set out a European solution to a politically explosive problem”.39 It is important to mention that the number of first-time asylum applications (non-EU) had been increasing since 2012, so that the European Union also started to review and amend several directives that deal with the Common European Asylum System. The goal of those modifications was to ensure that the mass arrivals of refugees into Europe could be done in an equal and fair way (Mushaben 2017, p. 96). However, it must be taken into consideration that “the number of first time asylum applicants in the EU-28 (. . .) in 2018 was 581 thousand (. . .)”. In this sense, this marked a decrease of 74 thousand first-time applicants across the EU-28 in comparison with the year before, as the number of first-time applicants fell from 655 thousand in 2017 to 581 thousand in 2018. This followed on from a considerable decrease of 551 thousand firsttime applicants between 2016 and 2017. The main contributions to the decrease were lower numbers of applicants from Syria and Nigeria (Eurostat 2019).

In fact, it is only in the twenty-first century that Germany’s “legal standards, the public discourse and the practical categories used for collective ascriptions are changing substantially”. Pries adds: Germany actually is a highly open and diverse society, geography puts it in the very centre of human mobility in Europe. Germany’s economy is extremely highly globalised, and immigrants and their children represent almost a fifth of the population. Due to demographic reasons, immigration in general is needed for the next decades to come (Pries 2013, p. 81).

However, there are several challenges—or shades of difference—that need to be overcome on the way towards a more inclusive Germany, inside the context of a more tolerant Europe, which are: the integration of migrants40 (especially of third country nationals) and their capacity to adjust to the culture of the host country; the 37

How and if this impact is transformed into fear and is instigated among the population, see: Kleist (2017, pp. 3–4). 38 The migration crisis, and the decrease of population in Germany represent the biggest challenge regarding movement of people in the country. On German demography, see further Chap. 5. 39 From article “Merkel the bold; Europe’s migrant crisis” (2015). The Economist, p. 16. 40 How this integration can be operated is suggested in Luft (2006).

62

3 Historical Aspects of Migration in Brazil and in Germany

control of the increasing right-wing and nationalist policies, manifestations and parties; the fight against xenophobia—especially against islamophobia—; and the balance between nationhood, citizenship and integration (Moses 2011, pp. 389–396). Europe already opened up a space for multiculturalism by the time it created a common sense of identity (i.e. the European Union citizenship and identity) in order to overcome national identities inside the European context. Solely national identities that do not melt have given rise to war and conflicts, and this is what should be avoided by the time third country nationals enter the territory of EU Member States. Furthermore, in Oltmer’s opinion (2015a, p. 16), neither in Germany nor at the European level there is a desire to develop a comprehensive general migration policy concept, which aims to achieve medium and long-term goals for a wide range of forms of migration,41 or that develops instruments that enable an integral migration policy. Therefore, those new shades of difference, and new opportunities, should belong to Germany’s current migration agenda.

3.3

Preliminary Conclusions

Brazil’s and Germany’s migration histories have followed different paths. During Portugal’s colonization, Brazil has witnessed the presence of many nations on its territory: from many African nations to a variety of European immigrants. By the end of the nineteenth century and beginning of the twentieth, independent Brazil starts to define its migration policy, with both economic and social goals. Economic, because immigration was necessary for the administration of sugar cane and coffee farmlands. Social, and above all racial, because an European profile had to be given to the country’s population. Despite being closed for immigration during its dictatorship and having experienced an exodus during its “lost decade”, Brazil is frequently thought as a destination for people in the move (whatever they move for). With the arrival of refugees and with a new legal landmark, Brazil is experiencing challenges and defining the character of its new migration policy. Germany, on the other hand, has shaped its migration policies in accordance with other historic events (mainly during and after war periods), such as the Thirty Years War, the formation of the German State, the two World Wars and the formation and the fall of the iron curtain. In addition to the immigration of different German peoples, the movement of displaced persons in the post war periods, and of the guest worker program in the middle of the twentieth century, Germany continued to receive population after the fall of the iron curtain. By the end of the 1990s the country started to perceive itself as an immigration country, and the formation of the

41

For example: EU free movement of people; recruitment of highly qualified workers and of workers that are needed because of labor shortage; education and training migration; temporary immigration; asylum.

References

63

European Union brought to Germany’s migration policies new perspectives and new challenges to which the country still has to adapt. New shades of movement of people are present in both countries and, in this context, law becomes and essential tool for defining the next steps of these countries’ migration policies.

References Alberto PL (2013) Fraternidad, democracia, mito. Los intelectuales negros y las metáforas cambiantes de la inclusión racial en el Brasil del siglo XX. In: Gúzman F, Geler L (eds) Cartografías afrolatinoamericanas: perspectivas situadas para análisis transfronterizos. Biblos, Buenos Aires, pp 113–138 Andrade RO (2017) Benvenuti, doutores. Pesquisa FAPESP 252:88–91 Araujo AL (2015) Wounded Pasts. In: Araujo AL (ed) African heritage and memories of slavery in Brazil and the South Atlantic world. Cambria Press, Amherst, pp 1–15 Asche M (2008) Hugenotten in Europa seit dem 16. Jahrhundert. In: Bade KJ, Emmer C et al (eds) Enzyklopädie Migration in Europa – vom 17. Jahrhundert bis zur Gegenwart. Ferdinand Schöningh, Paderborn, pp 635–643 Bade KJ, Oltmer J (2008) Mitteleuropa – Deutschland. In: Bade KJ, Emmer C et al (eds) Enzyklopädie Migration in Europa – vom 17. Jahrhundert bis zur Gegenwart. Ferdinand Schöningh, Paderborn, pp 141–170 Bayer C, Juessen F (2012) On the dynamics of interstate migration: migration costs and selfselection. Rev Econ Dynam 15(3):377–401 Brzozowski J (2012) International migration and economic development. Estudos avançados 26 (75):137–156 Cohen J, Sirkeci I (2011) Cultures of migration: the global nature of contemporary mobility. University of Texas Press, Austin dos Santos MS (2015) The legacy of slavery in contemporary Brazil. In: Araujo AL (ed) African heritage and memories of slavery in Brazil and the South Atlantic world. Cambria Press, Amherst, pp 313–338 Eger T, Weber F (2014) Immigration law. Georg J (ed) Encyclopedia of law and economics. Backhaus, New York, pp 1–11 Eltis D (1997) Seventeenth century migration and the slave trade: the english case in comparative perspective. In: Lucassen J, Lucassen L (eds) Migration, migration history, history: old paradigms and new perspectives. Peter Lang, Bern, pp 87–109 European Union, Council of the European Union (1999) Presidency Conclusions, Tampere European Council, 15–16 October 1999. Available via http://www.europarl.europa.eu/summits/tam_ en.htm#a Eurostat (2019) Asylum applications (non-EU) in the EU-28 Member States, 2008–2018. Available via https://ec.europa.eu/eurostat/statistics-explained/index.php/Asylum_statistics#cite_note-1 Fausto B (2002) História do Brasil. Edusp, São Paulo Gehrke R (2016) Between economic interest and nationalism – the policy regarding polish seasonal rural workers in the German Empire before 1914. In: Coy J, Poley J, Schunka A (eds) Migrations in the German lands. Berghahn Books, New York, pp 110–130 Godoy GG (2011) O caso dos haitianos no Brasil e a via da proteção humanitária complementar. In: Ramos A, Rodrigues G, de Almeida GA (eds) 60 anos de ACNUR: perspectivas de futuro. Editora CL-A Cultural, São Paulo, pp 45–68 Goldin I, Cameron G, Balarajan M (2010) Exceptional people: how migration shaped our world and will define our future. Princeton University Press, Princeton

64

3 Historical Aspects of Migration in Brazil and in Germany

Grabenwarter C (2009) National constitutional law relating to the European Union. In: von Bogdandy A, Bast J (eds) Principles of European Constitutional Law. Hart Publishing/C.H. Beck, München, pp 83–130 Guimarães JRS (2012) Perfil do trabalho decente no Brasil: um olhar sobre as Unidades da Federação. OIT, Brasília Hailbronner K (2014) Asyl- und Ausländerrecht. W. Kohlhammer, Stuttgart Harzig C, Hoerder D (2009) What is migration history? Polity Press, Cambridge Hernández TK (2016) Envisioning the United States in the Latin American myth of ‘racial democracy mestizaje’. Latin Am Caribbean Ethn Stud 11(2):189–205 Hess C, Green S (2016) Introduction: the changing politics and policies of migration in Germany. German Polit 25(3):315–328 Jahn A (1999) Von der legalen zur illegalen migration. In: Wolter A (ed) Migration in Europa – neue Dimensionen, neue Fragen, neue Antworten. Nomos Verlagsgesellschaft, Baden-Baden, pp 95–106 Kent RB (2006) Latin America: regions and people. The Guilford Press, New York Kleist JO (2017) Germany: two faces of refugee reporting, big question: “What Role Does the Media Play Driving Xenophobia?”. World Policy J 34(1):3–4 Lesser J (2013) Immigration, ethnicity, and national identity in Brazil, 1808 to the present. Cambridge University Press, Cambridge Lopes CMS (2009) Direito de Imigração. O estatuto do Estrangeiro em uma Perspectiva de Direitos Humanos. Nuria Fabris Editora, Porto Alegre Lucassen J, Lucassen L (1997) Migration, migration history, history: old paradigms and new perspectives. In: Lucassen J, Lucassen L (eds) Migration, migration history, history: old paradigms and new perspectives. Peter Lang, Bern, pp 9–38 Luft S (2006) Abschied von Multikulti – Wege aus der Integrationskrise. Resch, Gräfelfing Mattos AL, Sarturi CA, Borges LA (2015) Políticas públicas de acolhida a imigrantes: discussões e experiências. In: Redin G, Minchola LAB (eds) Imigrantes no Brasil: proteção dos direitos humanos e perspectivas político-jurídicas. Juruá, Curitiba, pp 67–80 Michaelides M (2011) The effect of local ties, wages, and housing costs on migration decisions. J Socio-Econ 40:132–140 Minchola LAB (2015) Salaamaalekun Brasil: o fluxo migratório senegalês e sua acolhida. In: Redin G, Minchola LAB (eds) Imigrantes no Brasil: proteção dos direitos humanos e perspectivas político-jurídicas. Juruá, Curitiba, pp 81–104 Minnaert AC (2016) A Migração Chinesa para Salvador: os Novos Rumos da Diáspora. Revista Eletrônica da Biblioteca Virtual Consuelo Pondé (4). Available via http://bahiacomhistoria.ba. gov.br/?artigos¼a-migracao-chinesa-pra-salvador#_ftnref10 Moses JW (2011) Migration in Europe. In: Tiersky R, Jones E (eds) Europe today: a twenty-first century introduction. Rowman & Littlefield Publishers, New York, pp 371–397 Mushaben JM (2017) Angela Merkel’s leadership in the refugee crisis. Curr Hist 116(788):95–100 Niggemann U (2016) Inventing immigrant traditions in seventeenth- and eighteenth- century Germany – the hughenots in context. In: Coy J, Poley J, Schunka A (eds) Migrations in the German lands. Berghahn Books, New York, pp 88–109 Oliveira AC, Araújo AAA (2018) O Imigrante Haitiano em São Paulo: reflexões a partir do campo etnográfico. In: Baeninger R, Bógus LM, Moreira JB, Vedovato LR, Fernandes D, Souza MR, Baltar CS, Peres RG, Waldman TC, Magalhães LFA (eds) Migrações Sul-Sul. Núcleo de Estudos de População “Elza Berquó” – Nepo/UNICAMP, Campinas, pp 434–445 Oltmer J (2015a) Einwanderungsland Deutschland in der Europäischen Union: aktuelle Debatten und Herausforderungen. vdw-Magazin 2:14–16 Oltmer J (2015b) Migration is historically normal. Europe as source and destination of global population movements. In: Arcarazo DA, Wiesbrock A (eds) Global migration – old assumptions, new dynamics, Volume I. Praeger, an Imprint of ABC-CLIO, Santa Barbara, pp 31–58 Oltmer J (2016a) Globale Migration – Geschichte und Gegenwart. Bundeszentrale für Politische Bildung, Bonn

References

65

Oltmer J (2016b) Migration vom 19. bis zum 21. Jahrhundert. Walter de Gruyter, Berlin Panayi P (1998) Migration in German history. Immigr Minorit 17(3):69–73 Patarra NL (2003) Movimentos Migratórios no Brasil: tempos e espaços. Escola Nacional de Ciências Estatísticas, Rio de Janeiro Patarra NL (2005) Migrações internacionais de e para o Brasil contemporâneo: volumes, fluxos, significados e políticas. São Paulo em Perspectiva 19(3):23–33 Poley J (2005) Decolonization in Germany – Weimar narratives of colonial loss and foreign occupation. Peter Lang, Oxford Portal Brasil (2016, September 14) Governo prorroga visto humanitário para haitianos. Available via http://www.brasil.gov.br/cidadania-e-justica/2016/09/governo-prorroga-visto-humanitariopara-haitianos Pries L (2013) Changing categories and the bumpy road to recognition in Germany. In: Pries L (ed) Shifting boundaries of belonging and new migration dynamics in Europe and China. Palgrave Macmillan, Basingstoke, pp 55–85 Relly E (2016) Imigração alemã ao Brasil (século XIX) e Prússia: fronteiras permeáveis e diálogos entre história global e micro-história. História Unisinos 20(3):273–286 Rühl S (2009) Germany. In: Fassman H, Reeger U, Sievers W (eds) Statistics and reality – concepts and measures of migration in Europe. IMISCOE-Amsterdam University Press, Amsterdam, pp 131–150 Sales T (1995) O trabalhador brasileiro no contexto das novas migrações internacionais. In: Patarra NL (ed) Emigração e Imigração Internacional no Brasil contemporâneo. FNUAP, São Paulo, pp 90–103 Santos AL, Rossini RE (2018) Reflexões geográficas sobre migrações, desenvolvimento e gênero no Brasil. In: Baeninger R, Bógus LM, Moreira JB, Vedovato LR, Fernandes D, Souza MR, Baltar CS, Peres RG, Waldman TC, Magalhães LFA (eds) Migrações Sul-Sul. Núcleo de Estudos de População “Elza Berquó” – Nepo/UNICAMP, Campinas, pp 277–295 Sasaki EM, Assis GO (2000) Teoria das Migrações Internacionais. Paper presented at XII Encontro Nacional de Estudos Populacionais, Caxambu/MG, Brazil. ABEP, Caxambu. Availabe via http://www.abep.org.br/~abeporgb/publicacoes/index.php/anais/article/view/969/934. Accessed 21 Feb 2017 Schunka A (2016) Migrations in the German lands: an introduction. In: Coy J, Poley J, Schunka A (eds) Migrations in the German lands. Berghahn Books, New York, pp 1–34 Silva JCLS, Jubilut LL (2015) A recente migração haitiana para o Brasil e o visto humanitário. In: Redin G, Minchola LAB (eds) Imigrantes no Brasil: proteção dos direitos humanos e perspectivas político-jurídicas. Juruá, Curitiba, pp 33–54 Sykes AO (1992) The Welfare Economics of Immigration Law. A Theoretical Survey with an Analysis of U.S. Policy. Coase-Sandor Institute for Law & Economics Working Paper No. 10, pp 1–46 Telles EE (2004) Race in another America: the significance of skin color in Brazil. Princeton University Press, Princeton Turner T (2010) The jobs immigrants do: issues of displacement and marginalization in the Irish labour market. Work Employ Soc 24(2):318–336 Vainer CB (1995) Estado e Migração Internacional no Brasil: da imigração à emigração. In: Patarra NL (ed) Emigração e Imigração Internacional no Brasil contemporâneo. FNUAP, São Paulo, pp 39–52 Valença MM (1998) The Lost Decade and the Brazilian Government’s response in the 1990s. J Dev Areas 33(1):1–52 Wagner FE, Ward JO (1980) Urbanization and migration in Brazil. Am J Econ Sociol 39 (3):249–259 Wessels W (2001) Germany in Europe: return of the nightmare or towards an engaged Germany in a new Europe? In: Webber D (ed) New Europe, new Germany, old foreign Policy? German foreign policy since unification. Frank Cass, London, pp 107–116 Wilson T (2007) Die Rechte von Drittstaatsangehörigen nach GemeinschaftsrechtUnter besonderer Berücksichtigung des Verhältnisses des Titels IV EG zum EGPersonenfreizügigkeitsrechtund des EuGH-Urteils “Mary Carpenter” Thomas Wilson. Nomos, Baden-Baden

Chapter 4

The Legal Framework of Migration in Brazil and in MERCOSUL

The movement of people is based on a mixture of feelings: while one desires to emigrate and belong to another society, others might have disinterest in receiving and embracing an immigrant’s choice. According to Dolinger and Tiburcio (2016, p. 165), the European societies, even in their last modern centuries, have not developed their ways of seeing the foreigner (as they did not consider foreigners as part of their society), as people ready to contribute to their economic development. In this sense, legal differences between nationals and foreigners in Europe are still identifiable. Both authors believe that, in the American continent, where new societies were built up through the composition of a mixed population, there has been a different approach towards foreigners.1 The authors continue explaining that, in the Americas, there is another mentality towards foreigners, which is expressed in law: people are equal before the law (in the economic and also in the politics fields),2 and this approach has been influencing Europeans in the last years. These abovementioned tendencies will be able to be demonstrated in this chapter and Chap. 5 of this book. Because of the Comparative Law approach proposed by the present work, we firstly present in the following lines the legal treatment given to immigrants in Brazil and in the MERCOSUL.

1 Since the mid-1990s, great part of Latin America has engaged in the approval of new migration laws, such as: Paraguay (Law No 978/1996 and Decree 4,483/2015); Argentina (Law No. 25,871/ 2004); Venezuela (Ley de Extranjería y Migración, 2004); Uruguay (Law No. 18,250/2008); Colombia (Law No. 1,465/2011); Mexico (Ley de Migración, 2011); Bolivia (Law No. 370/ 2013); Equador (Ley Orgánica de Movilidad Humana, 2017), and Peru (Decreto Legislativo 1,350/2017), as provided by Nunes (2017, pp. 14–15). 2 This, to some extent, holds true to Europe as well, as equality before the law is a human right and not a right limited to EU citizens, as set out in Articles 20 (equality before the law) and 21 (non-discrimination) of the Charter of Fundamental Rights of the European Union (OJ C 326, 26.10.2012, pp. 391–407).

© Springer Nature Switzerland AG 2020 E. Lana de Freitas Castro, Transnational Law of Human Mobility, https://doi.org/10.1007/978-3-030-46608-4_4

67

68

4.1

4

The Legal Framework of Migration in Brazil and in MERCOSUL

The Legal Framework of Migration of Non-MERCOSUL Citizens in Brazil

As briefly mentioned in the second chapter of this book, foreigners in Brazil used to have their rights guaranteed by the Brazilian Foreigners’ Statute, which used to regulate the entry, stay, and compulsory departure of a foreigner from Brazilian territory. On May 25th, 2017, the new Brazilian Migration Law (Lei de Migração3)—Law No. 13,445, from May 24th, 2017, was published in the Brazilian Federal Official Gazette. It replaced the Brazilian Foreigners’ Statute, and revoked Law No. 818/49 (which used to regulate the acquisition, loss and reacquisition of the Brazilian nationality) from November 2017 on. The new law is also now being regulated by Decree No. 9.199/2017,4 which also entered into force in November 2017. As it will be mentioned in this book, the latter seems to jeopardize some of the innovations of the new regulations on migration in Brazil because of its strictly administrative approach. In this sense, Brazil’s new Migration Law—together with Law No. 9.474, from July 22nd 1997 (Brazilian Refugees’ Law), as well as with the Brazilian Constitution—represents today the most important legal instrument for the protection of all immigrants in Brazil. These are legal sources that will be referenced in this chapter, when presenting and scrutinizing the treatment given to migrants under Brazilian law. The Brazilian Constitution grants an equal treatment of both Brazilians and foreigners. Article 5 of the Constitution states that all people are equal before the law, i.e., all Brazilians and foreigners residing in Brazil are entitled to the inviolability of the right to life, liberty, equality, security and property: the so-called fundamental rights.5 From the literal interpretation of Article 5, it could be understood that only the foreigners residing in Brazil have their fundamental rights

3

The new Brazilian migration law is available via http://www.planalto.gov.br/ccivil_03/_Ato20152018/2017/Lei/L13445.htm. 4 The Decree (Decreto n
9.199/2017) was published on 21 Nov 2017 and is available via http:// www.planalto.gov.br/ccivil_03/_ato2015-2018/2017/decreto/D9199.htm. 5 “Art. 5
: Todos são iguais perante a lei, sem distinção de qualquer natureza, garantindo-se aos brasileiros e aos estrangeiros residentes no País a inviolabilidade do direito à vida, à liberdade, à igualdade, à segurança e à propriedade, nos termos seguintes: [. . .].” In English: “Article 5. All persons are equal before the law, without any distinction whatsoever, Brazilians and foreigners residing in the country being ensured of inviolability of the right to life, to liberty, to equality, to security and to property, on the following terms: (CA No. 45, 2004)”, translation derived from: Chamber of Deputies, Documentation and Information Center (2010, p. 15). The current constitution of the Federal Republic of Brazil dates from the October 5, 1988, after a 21-year dictatorship period. Since its existence, 105 constitutional amendments have already been carried out. The Constitution of Brazil is available via http://www.planalto.gov.br/ccivil_03/constituicao/ constituicao.htm.

4.1 The Legal Framework of Migration of Non-MERCOSUL Citizens in Brazil

69

guaranteed. However, the doctrinal interpretation6 and the courts7 understand that the text of this article takes into consideration all foreigners, including the ones who are not resident in Brazil. According to the late Foreigners’ Statute, in article 95, foreigners living in Brazil were entitled to the same legal treatment as Brazilian citizens.8 The new Brazilian Migration Law from 2017 clarifies, on its article 4, that the migrant shall be guaranteed, within Brazilian territory, the inviolability of the right to life, liberty, equality, security and property, detailing the rights migrants are entitled to, namely: I. II. III. IV. V. VI. VII. VIII.

IX. X. XI.

XII. XIII.

XIV.

6

civil, social, cultural and economic rights; freedom of movement within Brazilian territory; family reunion with his/her spouse or partner and their children, relatives and dependents; measures to protect victims and witnesses of crimes and/or violations of rights; the right to transfer resources deriving from their income and personal savings to another country, according to the applicable legislation; the right of reunion for peaceful purposes; the right of association, including to trade unions, for lawful purposes; access to public health and social welfare services and to social security, under the terms of the law, without discrimination on the grounds of nationality and migratory status; wide access to justice and full legal assistance free of charge to those who prove insufficient resources; the right to public education, without any discrimination based on nationality and migratory status; compliance with legal and contractual obligations regarding labor relations, as well as with the application of norms of protection to the migrant workers, without discrimination based on nationality and migratory status; exemption of the fees referred to in this Law, under the condition of a declaration of lack of economic self-sufficiency, according to specific regulation; the right of access to information and guarantee of confidentiality regarding the personal data of the migrant, under the terms of Law No 12,527 of November 18, 2011; the right to open a bank account;

From the literal interpretation of Article 5 of the Brazilian Constitution, it could be understood that only the foreigners residing in Brazil have their fundamental rights guaranteed. However, legal scholars interprete the text of this article by including all immigrants, also the ones who do not live in Brazil. The way this article has been written has to do with the political rights, which are enumerated in Article 5, to which only Brazilians and foreigners living in Brazil may have access. For more details see: Dolinger and Tiburcio (2016, p. 179), Carvalho (2007, p. 587), and Lopes (2009, pp. 459–462). 7 See, for example, decision from the Brazilian Supreme Federal Court: STF, HC 94016 MC/SP, rel. Min. Celso de Mello, j. 7/4/2008. Another interesting decision from the Federal Court of the State of São Paulo (TRF 4ª Região, AG 2005040132106/PR, j. 29/8/2006) has guaranteed that even illegal immigrants in the Brazilian territory should have access to fundamental rights. In this case, the judges decided that the so-called “illegal immigrant” should have entire access to publicly funded healthcare system in the country, which is offered free of charge. 8 “Art. 95. O estrangeiro residente no Brasil goza de todos os direitos reconhecidos aos brasileiros, nos termos da Constituição e das leis.”

70

4 XV.

XVI.

The Legal Framework of Migration in Brazil and in MERCOSUL

the right to leave, to stay and to re-enter Brazilian territory, even when pending the application for a residence permit, for the extension of stay or for the conversion of a visa into a residence permit; and the right of the immigrant to be informed of the rights he or she is entitled to, for the purposes of the regularization of his/her immigrant status in Brazil.9

The wording of the new Brazilian Migration Law has managed to clear away any doubts referring to the scope of the law, as it does not mention that the rights are dedicated to migrants residing in Brazil, but to migrants who find themselves within Brazilian territory. The guarantees provided by the law in its article 4 are very extensive, as it frequently occurs in the Brazilian legal system. Article 4 has many sections, such as II, V, X and XIV, which are implied in the wording of sections already existent in article 510 of the Brazilian Constitution. That is why these 9 The free translation of this article (p. 15), as well as of the whole text of the new Brazilian Migration Law and its vetoes mentioned throughout this book derive from: Vasconcelos et al. (2018). 10 Such as the selected sections of Article 5 presented hereunder:

Article 5. All persons are equal before the law, without any distinction whatsoever, Brazilians and foreigners residing in the country being ensured of inviolability of the right to life, to liberty, to equality, to security and to property, on the following terms: (CA No. 45, 2004) I – men and women have equal rights and duties under the terms of this Constitution; II – no one shall be obliged to do or refrain from doing something except by virtue of law; III – no one shall be submitted to torture or to inhuman or degrading treatment; IV – the expression of thought is free, and anonymity is forbidden; [. . .] VI – freedom of conscience and of belief is inviolable, the free exercise of religious cults being ensured and, under the terms of the law, the protection of places of worship and their rites being guaranteed; [. . .] IX – the expression of intellectual, artistic, scientific, and communications activities is free, independently of censorship or license; X – the privacy, private life, honour and image of persons are inviolable, and the right to compensation for property or moral damages resulting from their violation is ensured; XI – the home is the inviolable refuge of the individual, and no one may enter therein without the consent of the dweller, except in the event of flagrante delicto or disaster, or to give help, or, during the day, by court order; [. . .] XIII – the practice of any work, trade or profession is free, observing the professional qualifications which the law shall establish; XIV – access to information is ensured to everyone and the confidentiality of the source shall be safeguarded, whenever necessary to the professional activity; XV – locomotion within the national territory is free in time of peace, and any person may, under the terms of the law, enter it, remain therein or leave it with his assets; XVI – all persons may hold peaceful meetings, without weapons, in places open to the public, regardless of authorization provided that they do not frustrate another meeting previously called for the same place, subject only to prior notice to the competent authority; [. . .] XXII – the right of property is guaranteed; [. . .]

4.1 The Legal Framework of Migration of Non-MERCOSUL Citizens in Brazil

71

sections appear to be legally irrelevant for a de facto protection of migrants under Brazilian law. However, there is a point which might raise doubts over the scope of the law, especially regarding whom it is addressed. It is referred to § 4 of article 4, which has been vetoed at the suggestion of the Ministry of Finance. The wording of the vetoed paragraph provided as follows: “§ 4. The rights provided for in the head of this article and in items I, II, IV, VI, VIII, IX, X, XI, XII, XIII, XIV and XV shall apply to visitors” (Vasconcelos et al. 2018, pp. 89 and 91). This means that the veto of this paragraph prevents visitors11 from having access to civil, social, cultural and economic rights; to the freedom of movement within Brazilian territory; to measures to protect victims and witnesses of crimes and/or violation of rights; to the right of reunion for peaceful purposes; to access to public health and social welfare services and to social security, without discrimination on the grounds of nationality and migratory status, to wide access to justice and full legal assistance free of charge to those who prove insufficient resources; to the rights of access to information, among others. But the complete veto of article 4 § 4 could be interpreted as a veto of the heading of article 4 as regards visitors. The problem is that the heading of article 4 guarantees fundamental rights, such as: the inviolability to the right to life, liberty, equality, security, and property. From a Public International Law perspective, this should be unacceptable.

XLI – the law shall punish any discrimination which may attempt against fundamental rights and liberties; XLII – the practice of racism is a non-bailable crime, with no limitation, subject to the penalty of confinement, under the terms of the law; XLIII – the practice of torture, the illicit traffic of narcotics and related drugs, as well as terrorism, and crimes defined as heinous crimes shall be considered by law as non-bailable and not subject to grace or amnesty, and their principals, agents, and those who omit themselves while being able to avoid such crimes shall be held liable; [. . .] LII – extradiction of a foreigner on the basis of political or ideological crime shall not be granted; LIII – no one shall undergo legal proceeding or sentencing save by the competent authority; LIV – no one shall be deprived of freedom or of his assets without the due process of law; [. . .] LXXIV – the State shall provide full and free-of-charge legal assistance to all who prove insufficiency of funds; LXXV – the State shall compensate a convict for judicial error, as well as a person who remains imprisoned for a period longer than the one established by the sentence; LXXVI – for all who are acknowledgedly poor, the following is free of charge, under the terms of the law: a) civil birth certificate; b) death certificate; [. . .] Translation extracted from Chamber of Deputies. Documentation and Information Center (2010). Constitution of the Federative Republic of Brazil, pp. 15–20. 11

See definition of visitor in the following lines.

72

4

The Legal Framework of Migration in Brazil and in MERCOSUL

Reasons for the veto, as explained by the Ministry of Finance, were: The provision extends to all visitors, among other rights, access to public health and social welfare services and to social security, as described in item VIII of the article, which would represent additional budget pressures to the Union and to other national entities, harming the consistency of public expenditures with the constitutionally foreseen expenditure limit, recommending its veto (Vasconcelos et al. 2018, p. 91).

The Executive Power has, therefore, presented an economic and financial argument in order to preclude visitors from the access to public health, to social welfare services, and to social security. It could be interpreted that in its argument the Ministry of Finance’s veto is only a limited one, guaranteeing the fundamental rights enshrined in the heading of article 4 of the new law and in article 5 of the Brazilian Constitution. Moreover, it has been proved that Brazil has no control over the costs expended in regard to foreigners (in this case, visitors) when providing them access to public health (Castro and Vasconcelos 2017),12 which demonstrates the argument of the Ministry of Finance to be unsubstantiated. Furthermore, excluding an article of the law which guarantees visitors the access to fundamental rights does not prevent the abovementioned interpretation of article 5 of the Brazilian Constitution (which is also addressed to migrants within Brazilian territory), nor the inclusive interpretation of article 4 of Brazil’s Migration Law, which guarantees all “migrants” (including, consequently, visitors as well) the rights enshrined by the law.13

12 Not only to public health, but also to welfare state and public education, as proved by Castro and Vasconcelos (2017, pp. 125–126) after having conducted a research on the costs of migration for the Brazilian State. The authors concluded that, because Brazilian State does not register the costs it has with foreigners within public health system (once it actually does not know how many foreigners—visitors or not—have profited from Brazilian public health service), the country cannot develop an effective migration policy: “Um eine effektive Migrationspolitik betreiben zu können, müsste sich der brasilianische Staat aber im Klaren darüber sind, was genau die Kosten der Ein-und Auswanderungsbewegungen sind, die Brasilien betreffen. Er müsste wissen, wie viele Migranten durchschnittlich die Angebote der brasilianischen Versorgungsbetriebe in Anspruch nehmen und wie viel der Staat dadurch in Migranten investiert. Ohne sich über diese Kosten und die ökonomische Seite der Zuwanderung im Klaren zu sein, kann der brasilianische Staat die Migration nicht effektiv durch Gesetze lenken, da er sich über die Folgen von Gesetzesänderungen (insbesondere über ihre Kosten und Nutzen) nicht im Klaren ist. Die Migrationskosten und die ökonomische Seite der Zuwandererwelle spielen eine große Rolle bei der Organisation eines Staates und bei dem Entwurf neuer Gesetze”. 13 In fact, there has been a discussion on the social assistance granted to foreigners within Brazilian territory, especially in relation to the assistance provided by article 203, V of the Brazilian Constitution. This provision guarantees a monthly benefit of one minimum wage to the handicapped and to the elderly who prove their incapability of providing for his/her own support or having it provided for by his/her families. The Brazilian Supreme Federal Court, Brazil’s constitutional court, understands that the social assistant enshrined in article 203, V, of the Constitution also applies to foreign residents in Brazil (Recurso Extraordinário No. 58,7970, published at DJe n. 88, from 28 April 2017, p. 45). For more details on the background of this decision, see: Nunes (2017, pp. 45–46).

4.1 The Legal Framework of Migration of Non-MERCOSUL Citizens in Brazil

73

Due to its recent entry into force,14 Brazilian legal academia is still exploring and dealing with the new Brazilian Migration Law. The changes brought by the law and its new provisions will be constantly discussed by academia and will also be developed throughout the following years. In the present book, there is our attempt to explore and to examine some of the provisions of Brazil’s new Migration Law, once this is also one of the goals of this work. This analysis, as it will be possible to observe within this chapter, will also be based on very few recent studies that have been developed since the entry into force of the new law, as indicated throughout the text. The division of the topics to follow was made based on the new structure presented by the law, as well as on the didactic used in Private International Law classes and literature according to Brazilian academia, according to which the rights and duties of immigrants (or, as exposed before, the legal status of immigrants) in the country are analyzed. This division considers the definitions for “migrant” the new law gives, i.e. to whom the law addresses, followed by an explanation on (i) the entry of immigrants into Brazilian territory; (ii) their stay in the country and their rights derived from their stay; and (iii) their (compulsory) withdrawal from Brazil.

4.1.1

The Immigrant

When one considers the definitions provided by the new law, there are several points to be covered. The first one of them refers to the term both laws use in order to address immigrants. Whereas the revoked Foreigners’ Statute referred to immigrants as the “aliens” or “foreigners”—estrangeiros—the new law uses the expression immigrant to refer to people who immigrate to Brazil, which is a softer and more inclusive way to refer to newcomers in Brazilian territory. This change marks the new approach of the law: non-nationals start to be perceived as human beings rather than as outsiders who could possibly threaten national security. The new Brazilian Migration Law not only defines the rights and duties of immigrants in Brazil, but also considers rights and duties of visitors, regulating the entry and stay of immigrants in the country, and also stablishing the protection norms of Brazilians living or being abroad, which is also a new point covered by the law. In this sense, and according to André de Carvalho Ramos (2017), the new migration law pays a historic debt of the Brazilian legal system as regards the treatment previously given to migrants in general. In Ramos’s opinion, the new law represents a new beginning, in which the treatment granted is governed by the respect for human rights and the dignity to which every human being is entitled. In fact, whereas the Foreigners’ Statute used to impose conditions to the application of its articles, such as the national security, the institutional organization, the political,

14

The new Brazilian Migration Law entered into force on November 21st 2017.

74

4

The Legal Framework of Migration in Brazil and in MERCOSUL

social-economic and cultural interests of Brazil15 (almost criminalizing migration), the new Brazilian Migration Law reaffirms the freedom of movement in the country and defends a human rights-based approach. The Foreigners’ Statute did not dedicate itself either to the definition of “foreigner” or to any other migrant. The definition of the term “foreigner” was implied and based on the classic definition mentioned in the second chapter of this book, in which being a foreigner means that a particular person does not hold a specific nationality from a specific country. On the other hand, the new migration law defines in article 1, § 1 to whom the law addresses16 and, consequently, who is considered, under Brazilian law, an immigrant. In this context, an immigrant is a person who is either a national from another country or stateless, who works or resides and establishes himself/herself temporarily or permanently in Brazil.

4.1.2

The Emigrant

The same article 1 of the law (article 1, § 1, III) also defines the emigrant as the Brazilian national who establishes himself/herself abroad temporarily or permanently. Whereas the previous law did not establish any rights to Brazilians living abroad, the new migration law considers the rights to Brazilian emigrants, dedicating Section II of Chapter VII to this purpose. The first article on this issue (article 78) ensures that any emigrant who decides to return to Brazil willing to establish residence may bring into the country, free of import and customs duties, new or used goods which a traveler, in accordance with the circumstances of his/her travel, may assign for his/her personal or professional use or consumption. In this case, depending on the quantity, nature and variety of the product, an import or export for commercial or industrial purposes cannot be presumed. This provision protects Brazilians (who are moving back to their country of origin) from indiscriminate customs and tax demands upon the admission of their personal belongings into Brazilian territory. Article 79 of the new law assures protection to Brazilians abroad, in the event of a threat to social peace and public order due to serious or imminent institutional

15

In articles 1 to 3 of the former Brazilian Foreigners’ Statute the national security issue was a very important point for the application of the statute: “Art. 01. At times of peace, any alien shall have permission to enter this country and depart from it, provided all requirements of this Law have been complied with, and the national interests are safeguarded. [. . .] Art. 02. The application of this Law shall attend primarily to the national security, the institutional organization, the political, social-economic and cultural interests of Brazil, as well as the defense of the Brazilian workers. Art. 03. The award of visas, and extension or transformation thereof shall at all times be conditional unto the national interests.” Translation derived from: Lima et al. (2009, pp. 283–307). 16 Law 9474/1997 (Brazilian Refugee Law) provides the definition on refugees, which is neither an object of study of this work nor a point to be covered by Brazil’s new migration law.

4.1 The Legal Framework of Migration of Non-MERCOSUL Citizens in Brazil

75

instability or major natural disaster. In these cases, according to article 79, special assistance must be provided to the emigrant by Brazilian representations abroad. In fact, it is interesting to reflect upon the necessity of this provision, once receiving protection and assistance from his/her own State is the consequence of owing the nationality of that specific State. According to Paul Lagarde (1989, p. 1), nationality is generally defined as the juridical and political link between a person and his/her State. According to him, a person is subordinate to his/her State, so that his person has some obligations before the State (for example, obligation of loyalty to the State, or sometimes military obligations, etc.). In return, the State provides its protection and assistance, when the person is outside of the State’s borders.17 Decree 9,199/2017 has also added the same content of the Migration Law to the treatment of emigrants, defining principles and guidelines of public policies for emigrants within articles 256 to 258 and providing rights to emigrants in articles 259 to 261. The strategy and guidelines of public policies for emigrants reveal a supportive approach. Not only protection and diplomatic assistance are cited as ways of giving assistance to Brazilians abroad, but also dignified living conditions such as facilitation of consular registry and provision of consular services related to education, healthcare, work conditions, social security and culture also play an important role according to the Decree (article 256, I, II, respectively). It is interesting to point out that one of the goals of the public policies for emigrants is conducting studies and research on emigrants and on the Brazilian communities existent abroad, so that the Brazilian State could better formulate public policies related to emigrants (article 256, III). Brazil also commits itself to dismantling bureaucracy, as well as to modernizing and updating the systems that are used to support Brazilians abroad. These provisions prove that Brazil is aware of the difficulties that emigrants go through. The country proposes a joint and integrated action of the diplomatic corps and governmental bodies, in order to assist Brazilians abroad following the precepts of International Law. A relevant difference between the provisions of the Migration Law and the Decree is that the Decree defines what the consular assistance consists of, namely: support upon accidents, hospitalization, death and imprisonment abroad; localization and repatriation of Brazilian nationals; and support in case of armed conflicts and natural catastrophes (article 257, reemphasizing the obligation contained in Article 79).

17 It is important to mention that this relationship between a state and its national refers to the vertical dimension of nationality. Lagarde also refers to the horizontal dimension of nationality, which puts the national of a state in the position of member of a community, i.e., as part of the population which constitutes the state and benefits from being a national of that state.

76

4

4.1.3

The Legal Framework of Migration in Brazil and in MERCOSUL

The Border Resident

The border resident is also being defined in the new law and this also represents a difference in relation to the 1980s law. Under the terms of the current law (article 1, §1, IV), a border resident is the person who is either a national from a neighboring country or is a stateless person who maintains his/her habitual residence in a border town in a neighboring country. It could be concluded, therefore, that the border resident is a non-Brazilian national who has strong connections to Brazil, because he or she lives near the Brazilian border and is most probably crossing the border to Brazil several times (even during only 1 day), and this is called commuting movement rather than “migratory movement” (Marques et al. 2013, p. 867). The definition of the term border resident given by the new law is of great importance18 for Brazilian society because it includes and supports many migratory movements which are typical for the borders of Brazil, as for example the situation of the brasiguaios (or, brasiguayos).19 According to researches conducted by Marques et al., the cross-border movements of the brasiguaios are motivated by their interest in public services in the areas of health and education, as well as in welfare benefits. Brasiguaios also cross the border to Brazil in order to go shopping, to visit friends and family, to work and to go to religious cult (Marques et al. 2013, p. 866). It is important to stress the fact that commuters, in this case the brasiguaios and any other group of individuals who cross the border under the conditions mentioned hereinabove, are not typically defined as migrants. In order to make this difference between commuters and migrants clear, we decided to cite the words of Cohen and Sirkeci (2011, p. 54): [. . .] migration emphasizes the mobility of a group over space and time; commuters, on the other hand, are thought of as relatively immobile and tied to a fairly circumspect region. In fact, the relative availability of labor, of opportunities, and of affordable housing encourages commuting locally and should mitigate the need for migration.

Nevertheless, and once again quoting Cohen and Sirkeci, “commuters are moving and their mobility is critical to their well-being”. This is why it is relevant to assure the rights of people living in border regions. Although they are not migrants, they might be foreigners and the new migration law proves to be pertinent in this sense.

18 The Brazilian Federal Senate, according to its technical opinion on the new Migration Law, considers the new legal definition of the term border residence of utmost importance. See: http:// legis.senado.leg.br/sdleg-getter/documento?dm¼5225079&disposition¼inline. 19 The history and origin of the brasiguaios are straight connected to economic, agricultural and military policies developed by both countries in the 1960s. The brasiguaios mixed the culture of both countries and established social, cultural and political bonds both in Brazil and in Paraguay. These people have either the Brazilian or the Paraguayan nationality (sons and daughters of Brazilians who represent the second generation of immigrants resident in Paraguay) and stablish strategic social networks in order to connect people along the border, see: Marques et al. (2013, p. 874). For more information on the brasiguayos see also: Lambert (2016), Albuquerque (2009), and Salim (1995).

4.1 The Legal Framework of Migration of Non-MERCOSUL Citizens in Brazil

77

In this context, Section I of Chapter III of the new law could meet the needs not only of the brasiguaios, but also of any other border resident with a similar behavior. According to Article 23 of the new law, the border resident can have his/her free movement facilitated, when him/her is granted, after application, an authorization for carrying out acts of the civil life20 within Brazilian territory. According to article 24, § 1, of the law, once this authorization for carrying out acts of the civil life within Brazilian territory is granted, the border resident will enjoy the same guarantees and rights enshrined by the Brazilian general migration regime. It is important to note, however, that the sole paragraph of this article provides that the exercise of this right is subjected to subsequent regulations or treaties. In fact, Decree No. 9.199/2017 specified some of these conditions for border residents in its articles 86 to 94. One of the most curious articles refers to the identification document the border resident is obliged to present when crossing the border and entering Brazilian territory. Article 86 of the Decree allows the entrance of these people if they present a valid travel document, or the identification document which is issued by the authorities of his/her country of nationality. In fact, this provision includes the majority of countries related in MERCOSUL’s Decision CMC No. 46/2015, which approved the Agreement on Travel Document and Return Document for MERCOSUL Member States and Associated States, which is studied at the end of this chapter. There are two other relevant points of the Decree which should be mentioned. The first one refers to the possibility that the border resident (who owns the authorization for carrying out acts of the civil life) applies for the Brazilian Work and Social Security Registry (CTPS), and registers in the Brazilian Individual Taxpayers Register (CPF/MF). The issuance of these documents does not imply that the right to reside within Brazilian territory will be granted by the Brazilian State (article 94). The second one relates to the abovementioned authorization, granted by the Brazilian Federal Police Office, which will issue the National Migration Registry Card. This Card proves that the authorization has been granted, allowing the border resident to freely exercise his/her acts of civil life in the territory determined by the Brazilian State (article 89). Moreover, according to the wording of article 24 of the new law, the authorization mentioned in Article 23 will indicate the border municipality21 in which the border resident is authorized to exercise his/her rights. This geographical limits and the validity of the authorization will be specified on the document of the border resident, as stated by article 24, §2 of the law. It is possible to revoke this document at any time, as prescribed by article 25 of the law. This may happen if (a) the border resident

20

The acts of the civil life are legal acts which enable the exercise of the civil rights. Legal acts are events which derive from a person’s will. These events might or not have the intention of producing legal effects. In the case of border residents, one could cite as an example a person who lives on the border, and who crosses the border and enters Brazilian territory in order to sign a sales contract, to get married, to register the birth of her/his child or to open a bank account in the bank branch which is closest located to her/his domicile. For more information on civil facts and acts under Brazilian law, see: Venosa (2014, chapter 17), and Gagliano and Filho (2011, pp. 331–345). 21 I.e. the city/town located immediately at the Brazilian border.

78

4

The Legal Framework of Migration in Brazil and in MERCOSUL

has forged the document or has used a false document in order to obtain it; (b) if the border resident acquires another migration status; (c) if the border resident is subjected to criminal penalty; or (d) if the border resident exercises his/her rights outside the limits given by the authorization.22

4.1.4

The Visitor

A very particular and important term defined by the Migration Law is referenced to the visitor (article 1, §1, V). The visitor is the person who is either a national from another country or a stateless person, who goes to Brazil for short-term stays, without the intention of establishing himself/herself temporarily or permanently in Brazil’s territory (as, for example, tourists, people in Brazil for the sake of business affairs, those who are in transit or who are engaging in artistic or sports activities). The visa rules for visitors are defined in article 13 of the new Migration Law and they will be analyzed in Sect. 4.1.7.

4.1.5

The Stateless Person

A new point mentioned by the law refers to the importance given to statelessness. Even though Brazil has been protecting stateless people in the light of the Convention Relating to the Status of Stateless Persons from 1954 (promulgated in Brazil by Decree No. 4,246, from May 22nd 2002), the new Brazilian Migration Law provides a new definition for stateless people. Those are defined under Art. 1, §1, VI as people who are not considered to be national of any State, considering the legislations of any State, as well as the terms of the 1954 Convention. Also, a stateless person is considered as such if so recognized by the Brazilian State.23 However, according to Bichara (2017, pp. 242–243), the definition given by the new law only provides the concept of statelessness de jure. This concept refers to the fact that the welcoming 22 It is important to mention that in the MERCOSUL level, there have also been discussions related to border residents: in its Working Subgroup No. 18 on border integration, the Common Market Group (GMC), represented by the Ministers of Foreign Affairs of each of the Member States, discusses issues related to health, education, work, migration, transport, infrastructure, urban and economic, indigenous people, cooperation, as well as other points which are relevant for the integration of border communities. In this sense, see: MERCOSUR/GMC/RES n
59/2015, available via http://www.mercosur.int/innovaportal/file/7420/1/res_059-2015_es_integracionfronteriza. pdf. 23 According to Dolinger and Tiburcio, the statelessness is the negative effect of the conflict of nationalities and it refers to the opposite of the dual nationality. For example, a child who is born in the territory of a country which has ius sanguinis as a criteria for acquiring nationality and who is son or daughter of a person whose nationality is defined according to the ius soli criteria. For more details on statelessness see: Dolinger and Tiburcio (2016, pp. 154–160).

4.1 The Legal Framework of Migration of Non-MERCOSUL Citizens in Brazil

79

State verifies the inexistence of, or the impossibility of proving, the legal bond that should ordinarily exist between a person and a State (i.e. his or her nationality), after the applicable law of the State of origin of that person is consulted. Moreover, the author affirms that the new law’s wording lacks definition on the stateless refugee, or on statelessness de facto. In this sense, de facto stateless people are by definition outside the State of their nationality and lacking in that State’s protection. The protection in question is diplomatic and consular protection and assistance, i.e. “external protection” vis-à-vis the host State, not “internal protection” within the territory of the State of nationality. In other words, de facto stateless persons have a nationality in name, but their nationality is ineffective because they are unprotected by the State of their nationality (Massey 2010, p. 26).

Bichara, however, recognizes that, even though the wording of the new law does not mention this other category of statelessness, the fact that the 1954 Convention on Statelessness is mentioned in the text compensates for the incompleteness of the article, since the Convention refers to the two categories of statelessness (Bichara 2017, p. 242). However, it should be mentioned that the new law does makes reference to statelessness de facto and de jure in its article 49, §4, when it prohibits the repatriation of unaccompanied minors and minors who have been separated from their families, and who are in situation of refuge or statelessness de facto or de jure. That means that, even though the law does not expressly mention both types of statelessness when defining the individuals the law is addressing, it does refer to them when considering the repatriation of individuals (i.e. the return of a person who has been refused entry into the country of origin or of nationality; in this case, for example, in order to protect minors). Moreover, according to Bichara, notwithstanding the limitation of the article when referring to stateless people, the Brazilian State admits its obligation to ensure the minimum rights of such individuals. In this sense, the law provides, in its article 31, §4, that a person who applies for the stateless status is guaranteed the right to reside in Brazil until the statelessness status request is disposed. In this respect, the new law represents a significant advance, even though it indicates neither the administrative body which should be responsible for the granting of the statelessness status, nor the executive body which should be responsible for conducting the naturalization process of a stateless person after he/she is recognized as stateless. It only specifies that it should be done by a competent body of the executive branch (article 26,§7) (Bichara 2017, p. 243). Nevertheless, the Decree 9,199/2017 complements article 26 of the migration law by describing the process of recognition of a person’s statelessness (articles 95 to 107). The person might initiate his/her process of recognition of statelessness either in the Ministry of Justice24 or in any unit of the Federal Police Office (article 96, § 2). The process will be conducted

24 Even though the name of this Ministry was modified in 2016 by Law 13,341/16, renaming Ministry of Justice and Citizenship (Ministério da Justiça e Cidadania) to Ministry of Justice and Public Security (Ministério da Justiça e da Segurança Pública), as well as many other Ministries and State Departments, we prefer to refer to it in this work as Ministry of Justice.

80

4

The Legal Framework of Migration in Brazil and in MERCOSUL

by providing copies of all of the documents owned by the applicant without excluding consultation to national and international bodies and institutions which could prove the facts pleaded by the applicant (article 96, § 3). As mentioned above, the applicant of the statelessness status receives a provisional resident permit until the process comes to an end, and, during this period, the applicant has also the right to obtain a Brazilian Work and Social Security Registry (CTPS), to register in the Brazilian Individual Taxpayers Register (CPF/MF) and to open a bank account (article 96, §4, § 5). If one or more factors indicate a possible refusal to the statelessness recognition process, the National Committee for Refugees (Comitê Nacional para Refugiados) shall comment on the case. After that, the Ministry of Justice shall deliver a reasoned decision on the determination of the applicant’s statelessness status (article 96, §6, §7). When applying for the statelessness status, the applicant has the right to apply for the Brazilian nationality in case his/her status is recognized. There are many other provisions of the Decree which describe the entire statelessness recognition process, but one of the most important refers to the rights the stateless people are entitled to while residing in Brazil (article 102), which are the same as provided by article 4 of the new migration law, already presented. These provisions reveal one more connection between the new migration law and its decree, and the refugee thematic principles. They also further attest the extent of protection to migrants that the Decree provides in some regards, especially in those indirectly related to refugee protection. It is important to note that the prevention and reduction of statelessness is one of the main international principles on nationality matters. This principle can be found in other international conventions on nationality, such as the United Nations Convention on Reduction of Statelessness (1961), in its article 1,25 and the European Convention on Nationality (1997), articles 4.b, 6.1 b, 7.3 and 8.1.26 Before analyzing the principles and guarantees stated by Brazil’s new migration law, it is important to mention that the Brazilian Federal Senate, according to its official opinion on the new Migration Law,27 considers the new law as an innovative one, as it contemplates not only the rights of statelessness people and people in search of asylum, but also the rights of Brazilian emigrants.28 The Senate 25

Promulgated and, therefore, integrated to Brazilian law by Decree No. 8.501, from 18th August 2015. 26 For more information see: Tiburcio and Barroso (2013, pp. 283–286). 27 The opinion of the Brazilian Federal Senate is available via http://legis.senado.leg.br/sdleg-getter/ documento?dm¼5225079&disposition¼inline. 28 We would like to draw attention to the veto of article 1, § 2 of the new law, which used to provide rights to indigenous peoples and traditional populations: “the original rights of indigenous peoples and traditional populations, especially the right to free movement in traditionally occupied lands, are fully guaranteed”—see Vasconcelos et al. (2018, p. 87). According to Paulo Henrique Faria Nunes, this provision was consequence of the ongoing law evolution on the subject. In this context, the author highlights Convention No. 169 of the International Labor Organization on Indigenous and Tribal Peoples, from 1989, as well as the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), from 2007. Nunes considers the veto a delicate subject, once in Brazil there are indigenous populations on border regions and the Brazilian Constitution considers

4.1 The Legal Framework of Migration of Non-MERCOSUL Citizens in Brazil

81

acknowledges that the new law adopts a contemporary vision of the migratory movements, as immigration and migration are not dissociated from each other. For that reason, the law receives the name of “Migration Law” instead of “Immigration Law”. In order to demonstrate this contemporary approach of the law, its most significant provisions will be presented and analyzed in the following pages. However, it must be stressed that it is not the proposal of this work to draw up comments on the entire law. The comments presented in the scope of this book are relevant in order to understand the profile of the new Brazilian approach on migration.

4.1.6

Principles and Guarantees According to Brazil’s New Migration Law

Article 3 of the new Brazilian Migration Law lists the principles and guidelines on which the Brazilian migratory policy is based: Article 3. The Brazilian migratory policy is based on the following principles and guidelines: I. II. III. IV. V. VI. VII. VIII. IX. X. XI.

XII. XIII.

universality, indivisibility and interdependency of human rights; rejection to and prevention from xenophobia, racism and any other ways of discrimination; non-criminalization of migration; nondiscrimination on the grounds of the criteria or of the proceedings that have been considered when admitting a person into Brazilian territory; promotion of regular entry and documental regularization; humanitarian protection; development of the economy, tourism, society, culture, sports, science and technology of Brazil; guarantee to family reunion; equality of treatment and of opportunities given to migrants and their family members; social, labor and productive inclusions for the migrants by means of public policies; equal and free access of the migrant to services, programs and social benefits, public goods, education, integral public legal assistance, work, housing, banking system and social security; promotion and dissemination of migrants’ rights, freedoms, guarantees and obligations; social dialogue in the formulation, execution and evaluation of migration policies and promotion of citizen participation of migrants;

the borderland strip a fundamental issue for the sake of the defense of the national territory. For more considerations on the subject, see: Nunes (2017, p. 34). In fact, the reasons for the veto of this provision was: “The provision violates the articles 1, I; 20, §2; and 231 of the Constitution of the Republic, which settle the defense of the national territory as an element of sovereignty, by means of the actions of Brazilian institutions at the frontier points on the control of entrance and departure of indigenous peoples and non-indigenous peoples, and the Union’s attribution to fix the boundaries of traditionally occupied lands to protect and grant respect for the property of the Brazilian indigenous peoples.”, see: Vasconcelos et al. (2018, p. 87).

82

4 XIV.

XV.

XVI.

XVII. XVIII. XIX. XX. XXI. XXII.

The Legal Framework of Migration in Brazil and in MERCOSUL

strengthening of the economic, political, social and cultural integration of the peoples of Latin America, upon the constitution of spaces for citizenship and free movement of persons; international cooperation with the States of origin, transit and destination of migratory movements, so as to guarantee effective protection of migrants’ human rights; integration and development of border regions as well as articulation of regional public policies capable of guaranteeing the effectiveness of border residents’ rights; integral protection and attention to the best interest of the migrant child and adolescent; compliance with treaty provisions; protection to the Brazilians who are abroad; migration and human development in the place of origin as inalienable rights of all people; promotion of academic recognition and professional practice in Brazil, in accordance with the law; and rejection to collective deportations or expulsion practices (Vasconcelos et al. 2018, pp. 11 and 13).

The new Migration law presents a more extensive list of principles and guarantees when compared with the revoked Foreigners’ Statute. The Foreigners’ Statute, in its article 2, used to provide five fundamental principles to which the Statute should attend, namely: national security, institutional organization, the political, socialeconomic and cultural interests of Brazil, as well as the defense of the Brazilian workers (Lima et al. 2009, p. 283). As already mentioned in this work, the Foreigners’ Statute contains a very strong political influence, once it mentions several times the expression “national security” in its text (Nunes 2017, p. 37). When analyzing Brazil’s current migration law, it is possible to identify that article 3 contains principles and guidelines based on the Brazilian Constitution, as well as in international legal provisions related to the protection of Human Rights. Attention must be drawn to principles adopted, for the first time, by a Brazilian legal provision on migration, such as: humanitarian protection; guarantee to family reunion; rejection to and prevention from xenophobia, racism and any other ways of discrimination; as well as nondiscrimination on the grounds of the criteria, or of the proceedings that have been considered when admitting a person into Brazilian territory (Varella et al. 2017, p. 264). Nunes compares some of the items of article 3 of the Brazilian Law with some provisions of the New York Declaration for Refugees and Migrants from 2016, which endorsed “a set of commitments that apply to both refugees and migrants, as well as separate sets of commitments for refugees and migrants”29 and which is dedicated to the protection of migrants from an international law perspective. As an example of Nunes’ references, we cite item V, which is in accordance with

29 See: UN General Assembly, New York Declaration for Refugees and Migrants; resolution/ adopted by the General Assembly, 3 October 2016, UN doc. A/RES/71/1, p. 5.

4.1 The Legal Framework of Migration of Non-MERCOSUL Citizens in Brazil

83

paragraphs 41, 57 and 71 of the New York Declaration, as well as item X of the law, which is expressed in paragraphs 39 and 81 to 84 of the Declaration (Nunes 2017, pp. 38–39). Also, the non-criminalization of migration30 enshrined in item III of the Brazilian law is in harmony with the New York Declaration, which urges the States to find alternative measures to detention (paragraph 33), especially when it comes to policies that criminalize cross-border movements (Nunes 2017, p. 41). Notwithstanding the stricter content of the Foreigners’ Statute, these principles and guidelines were already being put into practice during the last years of its effectiveness (through academic interpretation of the revoked law’s provisions or through the application of the revoked law by authorities). It is nowadays possible to affirm that the principles and guidelines of the Brazilian Migration Law reverberates with international and human rights-based policies and ideals which are guaranteed by international law instruments, such as the recent New York Declaration for Refugees and Migrants from 2016.31

30 Crimmigration is a term used to describe the convergence of the criminal justice and immigration law and enforcement systems and is one of the most debated points when referring to the current migration policy of the United States. For more details on the USA’s migration policy and on how crimmigration has been proposing a race-based approach in that country, see: Armenta (2017). The term crimmigration was thought by Juliet Stumpf, who realized that two areas of law (criminal law and immigration law) had wrapped themselves together and in which “criminal law is poised to swallow immigration law”. According to her, “Immigration law today is clothed with so many attributes of criminal law that the line between them has grown indistinct.”, see Stumpf (2006, p. 376). Also, in order to better understand the “criminology of mobility” as a new field of study, as well as the process of mobility based on two outcomes (criminal sentence and deportation), see: Stumpf (2013). For a more specific debate on crimmigration, focused on the Brazilian perspective, see: Moraes (2016), and, from the perspective of the new Brazilian migration law, see: Amaral and Costa (2017). 31 Important to mention the significance of the New York Declaration, even if it is a soft law instrument. For Manisha Thomas, the Declaration is historic, once “never before (. . .) so many States committed to responding better to refugees and migrants.”, see: Thomas (2017, p. 69). It is important to note that, because Nunes uses the New York Declaration as a parameter of comparison, we are not mentioning UN’s latest development on migration and refugees which is The Global Compact for Safe, Orderly and Regular Migration (GCM) from December 2018. According to IOM’s website, “The Global Compact is the first inter-governmentally negotiated agreement, prepared under the auspices of the United Nations, covering all dimensions of international migration in a holistic and comprehensive manner. It is a non-binding document that respects states’ sovereign right to determine who enters and stays in their territory and demonstrates commitment to international cooperation on migration”, available via https://www.iom.int/globalcompact-migration. The Brazilian Government communicated in January 2019 that it would leave the Global Compact for Migration.

84

4.1.7

4

The Legal Framework of Migration in Brazil and in MERCOSUL

The Entry and Stay of Immigrants Into/Within Brazilian Territory Under Brazilian Law

As stated by Kelsen, from an International Law perspective and as an expression of a State’s sovereignty, no State is obliged to admit foreigners in its territory.32 In this context, even though the new Brazilian Migration Law provides migration policies in the country with a human rights-based approach, it must be borne in mind that a State, as a consequence of its sovereignty rights, still holds its right to implement a border control policy.33 Therefore, not only migration, but also smuggling, embezzlement, drug trafficking and biosafety issues justify the control on the borders of a country (Nunes 2017, p. 55). When a foreigner decides to enter the Brazilian territory, he/she needs to present a proper travel document to the Brazilian authorities. Article 5 of the Migration Law provides the acceptable travel documents that a non-Brazilian must present in order to enter into, and to move within, Brazilian territory, namely: passport; laissez-passer; authorization for return; safe-conduct; seafarers’ identity document; consular identification card; civil identity document or equivalent foreign document, when admitted by a treaty; flight crew certificate; and other documents that shall turn out to be accepted by the Brazilian State by specific regulations (Vasconcelos et al. 2018, pp. 11 and 17). Whereas the revoked Foreigners’ Statute only provided two possible valid documents (the passport and the laissez-passer), the new law lists nine items, since it is based on the Regulation of Travel Documents, which was approved in 1996 by Decree No. 1,983 (Nunes 2017, p. 56). In this way, we understand that the new law provides a debureaucratization effect, as it gives more possibilities of identification of a foreigner, facilitating his/her daily activities of civil life. Also, the entry into the territory of a country might be conditional upon the presentation of a visa (if conditions of reciprocal or unilateral waivers of visa are not in force). It is important to note that a visa owned by a non-Brazilian is a document 32 Kelsen affirms that once the State decides for the admission of a non-national into its territory, the legal order of the state in the territory of which the foreigner is staying must grant him/her a minimum of rights, “and must not impose upon (. . .) certain duties (. . .)”. “As far as the rights are concerned, every state is by general international law obliged to grant to aliens at least equality before the law with its citizens in respect to safety of persons and property” (Kelsen 1952, p. 243). Even though this principle is still applied, it should not be mistaken for the principles on which refugee matters are based. Refugee Law issues are based on specific treaties (such as the 1951 Convention Relating to the Status of Refugees), and also on human rights treaties and principles, such as for example the non-refoulement principle, which should be primarily considered. On the admission and non-rejection of persons at risk, see: Perruchoud (2012, pp. 131–135). 33 Saskia Sassen explains from the exclusive territoriality of the modern (and classic model of) state until how globalization contributes to a new geography of power. The author also analyzes how economic globalization denationalizes national economies and how immigration is renationalizing politics. According to her, states try to “lift border controls for the flow of capital, information, and services and, more broadly, to further globalization.” However, “when it comes to immigrants and refugees, whether in North America, Western Europe, or Japan, the national state claims all its old splendor in asserting its sovereign right to control its borders”, see: Sassen (1996, p. 63).

4.1 The Legal Framework of Migration of Non-MERCOSUL Citizens in Brazil

85

that merely provides expectation of entry into Brazilian territory, as stated by article 6 of Brazil’s Migration Law (Vasconcelos et al. 2018, pp. 11 and 17)—meaning that a foreigner might own a visa to enter Brazil, but might not be allowed to cross the border if Brazilian authorities so determine. In this sense, the border control starts by the issuing of a visa (including the conditions for the granting of a visa—articles 9 to 11 of the same law), and ends up with the control of a non-Brazilian’s entry into Brazilian territory (by allowing him/her or not to cross the borders of Brazil) (Tiburcio and Albuquerque 2015, p. 227). Once having entered Brazilian territory with the applicable visa, immigrants are allowed to stay within Brazilian territory and must, therefore, be aware of the visa regulations (provided by the new law from articles 6 to 16), which are important not only for the issuing and granting of the visa, but also for immigrants’ conduct within Brazilian territory. Compared to the revoked Foreigners’ Statute, the new law defines with more accuracy the types of visa that might be awarded to migrants. Whereas the Foreigners’ Statute, in its article 4, mentioned seven types of visa (transit visa; tourist visa; temporary visa; permanent visa; courtesy visa; official visa; diplomatic visa), article 12 of the new law provides five types of visa, namely: (i) visitor visa; (ii) temporary visa; (iii) diplomatic visa; (iv) official visa; and (v) courtesy visa. The new law transformed some of the visa types of the revoked law into subcategories of the visitor visa. The subcategories of the visitor visa are for people (i) who go to Brazil for a short stay, (ii) do not engage in remunerated activities in the country,34 (iii) and have no intention to reside in Brazil (for the purposes of tourism, business affairs, transit,35 artistic, sport-related activities, and other cases defined in specific regulation). In fact, the Decree No. 9,199/2017 refers to these other cases cited by the law and defines, in its article 29, § 8, that the exceptional cases in which a visitor visa will be granted shall be in accordance with Brazil’s national interest. These exceptional cases for the granting of a visitor visa shall be defined by (i) an act of the Ministry of Foreign Affairs; or (ii) by a conjoint act of both the Ministry of the Foreign Affairs and the Ministry for Labor, when labor-related issues are involved. In this case, we observe the use of the national interest argument, which was commonly used in the revoked Foreigners’ Statute and now is present again (seven times) throughout the Decree’s text, bringing the new law a step backwards when it comes to immigrants’ legal protection. Moreover, putting the authority of deciding on a new type of visitor visa in the hands of the executive power, in this case, constitutes legal uncertainty. The opinions and

34 This does not mean that the visitor is not allowed to get payment from a Brazilian source. The new law, in its article 13, § 2, as well as Decree No. 9,199/2017, in its article 29, § 9, state that the beneficiary of the visitor visa is allowed to receive payment from the Brazilian government, from a Brazilian employer, or from a Brazilian private entity in the form of travel allowance, subsistence allowance, artistic fees, remuneration or other travel expenses, as well as to compete for prizes, including cash prizes, in sports competitions or in artistic or cultural competitions. 35 The visitor visa will not be required in case of stopover or connection within the Brazilian territory, provided that the visitor does not leave the international transit area, as provided by Article 13, § 3 of the new Migration Law, as well as by article 29, § 10 of Decree No. 9,199/2017.

86

4

The Legal Framework of Migration in Brazil and in MERCOSUL

understandings of executive bodies referring to possible visitor visa types might change according to an immigrant’s case, and ministerial ordinances are easily modified and amended. Under the same logic, by a joint act of both the Ministry of Justice and the Ministry of Foreign Affairs, the visitor visa requirement might be waived for specific time periods and for specific nationalities, if in accordance with Brazil’s national interest (article 25, § 2 of the Decree).36 When it comes to the temporary visa, the new law, in comparison with the revoked statute, presents a wider range of purposes that justify the issuing of this type of visa.37 In Nunes’ opinion, the new law was interested in reserving a category of visa for short-term stays (namely, the visitor visa) and another category for stays that grant people a transitory/provisory immigrant status. According to the author, the wording given of Brazil’s new law tends to favor the activity in which the immigrant is engaged, in rather than his/her status (as a visitor or temporary immigrant), what proves the law to be in harmony with the principles provided by Brazilian Constitution and international instruments (such as the protection to family and the supremacy of human rights) (Nunes 2017, p. 76). Nevertheless, it is important to note that the temporary visa can also be limited to some discretionary actions of the Brazilian State. One of these limitations can be identified in the legal definition of the temporary visa. Different from the visitor visa,38 the temporary one might be granted to the immigrant who goes to Brazil with the purpose of establishing his/her residence in the country during a specific period of time. Moreover, one of the purposes for the issuance of a temporary visa must be: researching, teaching, or outreaching academic projects; health care; humanitarian protection; studying; working; vacation working; practice of religious activity or voluntary service; undertaking of investment or an activity with economic, social, scientific, technological or cultural relevance; family reunion; or artistic or sports activities with a time-limited work contact (article 33, letters a) to l) of item I of the Decree, as well as article 14, letters a) to j) of item I of the Law). Apart from these purposes, there are two other non-cumulative prerequisites for the granting of a temporary visa: (i) if the immigrant is beneficiary of an international treaty which regulates visa matters or (ii) if the immigrant attends to the interests of Brazil’s national migration policy. (article 33, items I, II, and III of the Decree). The Decree No. 9,199/2017 limits the granting of visa based on a subjective criteria, as the expression “interests of Brazil’s national migration policy” has a volatile character, since it may change according either to the interests of the incumbent governments or to the public officer who is responsible for the issuing of the temporary visa. In 36 Not only reasons for the waiver of the visitor visa or the definition of special categories of visitor visa, but also the validity/duration of the visitor visa (which, as a general rule, is from one year according to article 15 of the Decree) might be reduced by the Ministry of Foreign Affairs (article 15, § 2, Decree No. 9,199/2017). 37 The Foreigners’ Statute used to present eight purposes for the issuing of a temporary visa, while the new law provides twelve, as presented in the following lines. 38 It is important not to mistake the visitor visa for the temporary visa, once both of them might also be issued, for example, for the conduction of artistic or sports activities.

4.1 The Legal Framework of Migration of Non-MERCOSUL Citizens in Brazil

87

addition, article 14, III of the new law provides that a temporary visa may be granted in other cases according to regulation. In this sense, the Decree No. 9,199/2017, in its article 48, states that the temporary visa may be granted in order to attend to the interests of Brazil’s national migration policy in other circumstances defined in a joint act of the Ministry of Justice, of the Ministry of Foreign Affairs and of the Ministry for Labor. At the same time that the Decree follows the instruction of the new law (in its article 14, III), it does not fill the gap left by the law, since the Decree that regulates it refers once more to the decisions of the Executive Power that again may change according to the interests of the incumbent governments. The abovementioned Ministries have broad discretion to determine new temporary visa categories in ministerial ordinances that might easily be revoked and/or altered. In this way, the law and the Decree leave room for a policy which “selects” the immigrants to receive the temporary visa. Another relevant point to be mentioned is the temporary visa for the purpose of humanitarian protection. According to article 14, § 3 of the Migration Law, the temporary visa for the purpose of humanitarian protection may be granted to stateless people and to people who come from any country which is experiencing severe or imminent institutional instability, armed conflicts, widespread calamities, environmental disasters or serious violation of human rights or international humanitarian law, or in other cases, as defined by regulation (Vasconcelos et al. 2018, p. 23).

In fact, Decree No. 9,199/2017, which regulates article 14 of the Migration Law, provides, in its article 36, § 1, that a joint act of the Ministry of Justice, of the Ministry of Foreign Affairs and of the Ministry for Labor will define the conditions, deadlines and requirements for issuing the temporary visa for the purpose of humanitarian protection. According to § 3 of article 36 of the Decree, the full freedom to work in Brazil will be granted to those who acquire the temporary visa for the purpose of humanitarian protection. This category of temporary visa (for humanitarian protections) was not provided by the revoked Foreigners’ Statute. However, when the Statute was still in force, CONARE (Comitê Nacional para os Refugiados, or National Committee for Refugees) and CNIg (Conselho Nacional de Imigração—National Immigration Council) were already providing this kind of protection through their resolutions (Nunes 2017, p. 76). Normative Resolution from CNIg No. 97/2012 (which had its validity extended up to October 30th, 2017) provided a permanent visa to Haitians who had been affected by the strong earthquake in January 2010, the so-called permanent visa on humanitarian grounds. This special category of visa was thought for Haitians for a single purpose. Due to a lack of legal definition, in both the Geneva Convention and Brazil’s Refugees Act, which do not apply specifically to people fleeing from natural catastrophes, Brazil could not classify these people fleeing from natural catastrophes as refugees, but as immigrants on humanitarian grounds. Therefore, Haitians’ immigration processes could not be carried out by CONARE (Godoy 2011, pp. 62–65). CONARE, which was created by the above mentioned Refugee Act, is a committee responsible for reviewing applications and granting approval of

88

4

The Legal Framework of Migration in Brazil and in MERCOSUL

refugee status in the first instance, whereas CNIg39 is responsible for other immigrants’ processes that are not those related to the granting of the refugee status (Jubilut 2006, p. 32). Under very similar circumstances, CONARE had to act in relation to Syrians, and therefore issued Normative Resolution No. 17/2013. According to this resolution, for humanitarian reasons an appropriate visa should be granted to Syrians (Nunes 2017, p. 76). Those humanitarian reasons are the ones caused by the living conditions of the population in Syrian territory or in the regions bordering it, as a result of the armed conflict in the Syrian Arab Republic.40 As it can be observed, the new migration law included other visa types which were already being granted by these and other Normative Resolutions. Until present, CNIg has not stated any Normative Resolution regulating the temporary visa for humanitarian protection, presented by article 14, § 3 of the new law.41 We believe that such a new Normative Resolution referring to article 14, § 3 would serve rather as a guideline for the visa application proceeding (as many of these Resolutions are) rather than a resolution which creates another type of temporary visa (as Normative Resolution from CNIg No. 97/2012 used to be until October 2017), since the purpose of humanitarian protection in specific cases is already guaranteed by the new law. Another relevant point on this issue is that, as its very name indicates, the temporary visa is a visa and not an application for asylum. That means that, as already explained before, the Brazilian State might or not grant an immigrant a visa, and the same applies to the temporary visa for the purpose of humanitarian protection, which depends on the joint decision of the Ministries in order to be granted. By contrast, the protection given by a state to a person with the refugee status is an international obligation, subject to other principles such as the non-refoulement principle.42 Though the temporary visa is normally valid for 1 year (article 16 of the Decree), it might be transformed, within Brazilian territory, either into a residence permit or into a diplomatic, official or courtesy visa (article 50 of the Decree). This means that the humanitarian protection intended by the temporary visa might be extended with the granting of a residence permit. In this case, the residence permit for humanitarian shelter might be granted to the stateless person, as well as to people who come from

39 CNIg has already produced more than 90 Resolutions. Apart from developing immigration policies and coordinating immigration activities, CNIg is a body from the Ministry for Labor, which is responsible for the completion of Brazil’s migration national policy. For more information on CNIg, see: Lopes (2009, pp. 562–564). 40 Some aspects on the protection to refugees in Brazil have to be presented in this section of the book, once it is essential for the understanding of the current Migration Law. 41 The Normative Resolutions from CNIg, which are currently in force, are available via http:// trabalho.gov.br/mais-informacoes/cni/nova-legislacao. 42 The non-refoulement principle contained in the Geneva Convention represents the main obligation for the states on human rights issues. The principle, provided by Art. 33 of the Convention, protects refugees through banning States from expelling or from returning refugees in case their lives or freedom would be in danger or threatened on account of their race, religion, nationality, membership of a particular social group or political opinion.

4.1 The Legal Framework of Migration of Non-MERCOSUL Citizens in Brazil

89

any country which is experiencing severe or imminent institutional instability, armed conflicts, widespread calamities, environmental disasters or serious violation of human rights or international humanitarian law (article 145, items I to V of the Decree). Similar to the rules for the granting of a temporary visa, the residence permit for humanitarian shelter will depend on a joint act of the Ministry of Justice, of the Ministry of Foreign Affairs and of the Ministry for Labor to define the conditions for the grating of the residence permit based on humanitarian shelter, as well as the extension of the validity of the residence permit, including the possibility of transforming it into a permit with unlimited duration (article 145, § 1 of the Decree). Also, differently from the revoked Foreigners’ Statute, which used to provide rules for the permanent visa in its article 16, the new Migration Law does not provide for a permanent visa. This is because in the new law the visas are issued in order to allow a person to enter Brazil’s territory. The permanent visa, which used to be granted to immigrants who intended to stay for indefinite time in Brazil, was substituted by the residence permit (article 30 to 36 of the Migration Law) (Nunes 2017, p. 85). The difference is that the residence permit might be granted both to the temporary immigrant (as in the case of the temporary visa for humanitarian protection explained above) and to the permanent immigrant. In this last case, the permanent immigrant fixes in Brazil his/her residence with several purposes, such as: research, teaching or outreach academic purposes; health care; humanitarian protection; studying; working, vacation working; practice of religious activity or voluntary service; undertaking of investment or activity with economic, social, scientific, technological or cultural relevance; family reunion; ownership of refugee status, domestic asylum, or statelessness status (Vasconcelos et al. 2018, p. 33), among other situations which might also not be listed in article 30 of the law. Prerequisite to the granting of the residence permit is the registration/civil identification of the immigrant as such to Brazilian authorities (National Migratory Register), according to articles 19 to 22 of the Migration Law. The granting of the permit does not depend on a regular migratory situation of the immigrant within Brazilian territory.43 These and many other conditions are imposed by the law for entering Brazilian territory and also for staying in the country. If not observed, the new law confers the status of irregular immigrants.44 Some of these irregular conditions will be approached in the next topic, which analyses the compulsory exit of immigrants from Brazilian territory under the terms of the new Brazilian Migration Law.

43 This simplifies the proceedings of making a refugee a regular/legal immigrant within Brazilian territory, as many of them do not have sufficient documents, which prove their entry into the country. 44 On the definition of irregular immigration, see: Anderson and Ruhs (2008, 2010), Bloch and Chimienti (2011) and Düvell (2011).

90

4.1.8

4

The Legal Framework of Migration in Brazil and in MERCOSUL

The Compulsory Exit of Migrants Under Brazilian Law

Before we analyze the cases in which immigrants in Brazil are forced by law to leave Brazilian territory, it is important to mention that this section will not address the following three topics: extradition; transfer of enforcement of sentence; and transfer of sentenced persons. Even though these three topics are provided by the new law (from article 81 to article 105), they are subject of study of international judicial cooperation and are more relevant for both civil and criminal procedure law studies.45 These topics are based on international cooperation and preservation of the prosecutorial interest of the states within a procedure in which an immigrant is involved (Cahali 2011, p. 258). In this sense, we are considering three other aspects that are related to the legal status of immigrants in Brazil that are also covered by the new law, and are expressly considered as compulsory withdrawal measures under article 178 of the Decree, namely: deportation, repatriation, and expulsion. According to article 179 of the Decree, in these three imposing withdrawal measures, the migrant/visitor will have to return either to the country of his/her nationality or origin, or to a country that accepts him/her in accordance with international law treaties the country is part of. Important to note is that these three measures will not be applied to people who find themselves at risk. For instance, when there are reasons to believe that one of these measures could endanger an immigrant’s life and personal integrity, or when, due to one of these measures, his/her freedom is threatened because of his/her ethnicity, political opinion, religion, nationality, or belonging to a social group (article 180 of the Decree). Therefore, the beneficiaries of the refugee status, stateless status or political asylum shall not be either repatriated, deported or expelled (article 62 of the new law and article 181 of the Decree); i.e. the non-refoulement principle is to be observed in these cases. Also, in the context of a human-rights oriented migration policy, collective repatriation, deportation or expulsion shall not be carried out in Brazil (article 61 of the Migration Law) (Vasconcelos et al. 2018, p. 49).

4.1.8.1

Repatriation

The remedy of the repatriation46 was not provided by the revoked Foreigners’ Statute. As an innovation,47 article 49 of the new law defines repatriation as “the administrative measure to return a person in situation of refusal of entry to the country of origin or of nationality” (Vasconcelos et al. 2018, p. 43). According to

45 International judicial cooperation consists of the set of international and national rules governing acts of collaboration between states, or even between states and International Organizations, with the aim of facilitating access to justice, see: Ramos (2013, p. 624). 46 As debated by Long (2011, pp. 232–241). 47 Innovation relatively considered, as the Ministry of Justice has already recognized the repatriation as an autonomous compulsory exit measure of immigrants, see: Nunes (2017, p. 115).

4.1 The Legal Framework of Migration of Non-MERCOSUL Citizens in Brazil

91

Nunes (2017, pp. 115–118), repatriation consists of the coercive and unilateral measure of a state, when it does not accept an immigrant while he/she is entering the territory of that state. In this case, the person did not officially enter the territory of a state, even though he/she finds himself/herself within its territory. Repatriation, under this context, is not interpreted as a simple return “home”, (i.e., not as a solution for displacement caused by rights-deprivation, or as a political act, which focuses on (re)admission of for example refugees to the national political community as citizens). Repatriation in the present work means the removal of a person from a particular territory, because he/she does not fulfill—or does not seem to fulfill— the necessary requirements for entering a foreign country. Even though it is possible to fit repatriation hypotheses into some of the provisions of article 45 of the new law (refusal of entry48), repatriation still holds a discretionary character, where reasonability is on its brink and might develop into arbitrariness (Nunes 2017, p. 118).

4.1.8.2

Expulsion

According to article 54 of the new law, expulsion “consists of an administrative measure of compulsory withdrawal of migrants or visitors from the national territory, combined with the prohibition against reentry for a specific period” (Vasconcelos et al. 2018, p. 45). In Sibert’s opinion, the expulsion is a spontaneous and voluntary act of a state, performed in its own interest, through which non-nationals are obligatory brought outside of a state’s territory due to state security reasons (Sibert 1951, p. 628). Under this context, expulsion is not an arbitrary, but is a discretionary act of the state (Dolinger and Tiburcio 2016, p. 216). As defined by Dolinger and Tiburcio (2016, p. 208), an expulsion is the procedure by which a country expels from its territory a resident foreigner, because he/she either committed a crime in the territory of the state, or exhibited harmful behavior against national interests. As a consequence, the foreigner is forbidden to return to that country. By analyzing its definition, it is not difficult to conclude that expulsion opens the way for further discussions, not only because it refers to the expulsion of a foreigner from a specific territory, but also because a state does so, when it considers a foreigner to be harmful to the security and interests of the state. Nevertheless, 48

Reasons for the refusal of entry into Brazilian territory, according to article 45 of Brazil’s Migration Law, might be given to a person: who was previously expelled from the country as long as the effects of the expulsion are in force; who was convicted or is facing trial due to act of terrorism or to the crime of genocide, to crime against humanity, to war crime or to a crime of aggression; who was convicted or is responding to proceedings in another country for a willful crime subject to extradition under Brazilian law; who has had the name included in a list of restrictions due to judicial order or to commitment assumed by Brazil before an international organization; who presents a travel document that is not valid for Brazil, is expired, or is scratched out or is or appears to be false; who does not present an adequate travel document; whose reason for travel is not consistent with the visa or with the reason for the visa exemption; who defrauded his/her documents or provided false information when applying for a visa or who has committed an act contrary to the principles and purposes established in Brazilian Constitution.

92

4

The Legal Framework of Migration in Brazil and in MERCOSUL

today expulsion is recognized by legal scholars as an expression of a state’s sovereignty and as a necessary measure for states to take action so as to be free of foreigners who are harmful to social order and to internal institutions (Cahali 2011, p. 195). Indeed, the expulsion is the logical consequence of the fact that a state might accept or decline the entry of a foreigner into its territory, as already explained above (Dolinger and Tiburcio 2016, p. 211). However, expulsion shall not cross a legitimacy boundary: legitimate expulsions refer only to those that aim at the conservation of the State as such (Sibert 1951, p. 621) and any arbitrariness during expulsion proceedings shall not prevail. In order to avoid that states exercise their legal right of expulsion only to cause harm to a foreigner, that is, in order to avoid a state’s abuse of rights, states should orient themselves by following the principle of humanity (Dolinger and Tiburcio 2016, p. 212).49 In order to better define the cases of expulsion and in order to avoid the abuse of rights, the Brazilian Migration Law also places a number of conditions upon the expulsion of a migrant or visitor from the Brazilian territory. The clearest case of expulsion refers to the existence of a final criminal conviction of the migrant/visitor. In this case, the final criminal conviction should be related to: (i) crime of genocide, crime against humanity, war crime or crime of aggression, as defined by the 1998 Rome Statute of the International Criminal Court; (ii) a common willful crime punishable by deprivation of liberty, considering the seriousness and the possibility of resocialization in the national territory (article 54, § 1) (Vasconcelos et al. 2018, p. 45). Also, no expulsion shall be performed when: I. the measure matches extradition prohibited by Brazilian law; II. the person to be expelled: a) has a Brazilian child who is under his/her legal guardianship or economic or socioaffective dependency, or has a Brazilian person under his/her legal tutorship;50

49

Legal expression of the principle of humanity combined with the respect to the rule of law is, for example, Article 32 of the 1951 Convention relating to the Status of Refugees (Geneva Convention), which establishes that “The Contracting States shall not expel a refugee lawfully in their territory save on grounds of national security or public order and in pursuance of a decision reached in accordance with the process of law.” The entire text of the Geneva Convention, including its protocol, is available via http://www.unhcr.org/3b66c2aa10. 50 The Foreigners’ Statute did not provide that “socio-affective dependency” between the child and the foreigner to be expelled could be a reason not to perform the expulsion. This provision was added to the new law, after many decisions of the Brazilian Superior Court of Justice (Superior Tribunal de Justiça—STJ), under the aegis of the revoked law, prohibited the expulsion of a foreigner because the child did not depend economically, but social-sentimentally on the mother/ father to be expelled. In this sense, see: HC No. 38946, judged on May 11, 2005, DJ 06.27.2005, p. 205; HC No 31449, judged on May 12, 2004, DJ 05.31.2004, p. 169; HC No. 43604, judged on August 10, 2005, DJ 08.29.2005, p. 139; HC No. 90760, judged on February 27, 2008, DJ 03.17.2008, p. 1; and HC 88882, judged on February 27, 2008, DJ 03.17.2008, p. 1. Also, there are some decisions of the Brazilian Supreme Federal Court (STF) in the sense that, even if the child was conceived after the foreigner had committed a crime, the Brazilian State shall not proceed with his/her expulsion proceedings. See, in this sense: HC No. 114.901, judged on October 25, 2013, DJ-e-215 10.30.2013; and Rec. Extr. No 608.898, judged on March 10, 2011, DJe-186 09.28.2011. Dolinger and Tiburcio (2016, pp. 220–225) are very critical to both of these aspects (socio-affective

4.1 The Legal Framework of Migration of Non-MERCOSUL Citizens in Brazil

93

b) has a judicially or legally recognized spouse or partner with legal residence in Brazil, without any discrimination; c) has entered Brazil until he/she was 12 (twelve) years old, having since then legal residence in the country; d) is a person older than 70 (seventy) years old with more than 10 (ten) years of legal residence in the country, considering the seriousness and the reason for the expulsion (Vasconcelos et al. 2018, p. 47).

Apart from these cases, neither the law nor the Decree establishes more precise rules for the Brazilian State to decide for the expulsion of a foreigner. It is notable that neither the Brazilian law nor its Decree mentions national security to be one of the reasons for expulsion of foreigners. That leads Nunes to conclude (2017, p. 125) that article 54 of the Migration Law provides a legal definition of the term expulsion, as well as the only possible means by which the Brazilian State could consider expelling a foreigner from its territory. Nunes (2017, p. 130) believes that the new judicial regime for expulsion conceived by the new Migration Law is a step forward, as the administrative process of expulsion is bound to a prior judicial decision (i.e., the final criminal conviction). We tend to agree with the author. However, we must be aware that the traditional definition of expulsion, already explained in the beginning of this section, which does not limit itself solely to the existence of final criminal convictions but also to a state’s decision on the harmfulness of a foreigner, shall not be ignored. In this context, we believe it is important to refer to the International Law Commission of the United Nations that has been discussing, since year 2000, the topic “Expulsion of Aliens”. In its sixty-sixth session, in 2014, the Commission produced the latest version of a set draft articles on protection of the human rights of persons who have been or are being expelled. The draft articles define grounds for expulsion in article 5: Article 5 Grounds for expulsion 1. Any expulsion decision shall state the ground on which it is based. 2. A State may only expel an alien on a ground that is provided for by law. 3. The ground for expulsion shall be assessed in good faith and reasonably, in the light of all the circumstances, taking into account in particular, where relevant, the gravity of the facts, the conduct of the alien in question or the current nature of the threat to which the facts give rise. 4. A State shall not expel an alien on a ground that is contrary to its obligations under international law (United Nations 2014).

Even though the draft articles constitute soft law, the United Nations showed their interest in the criteria a state uses to determine whether a foreigner is a threat to its territory, upon deciding on expulsion. The report of the International Law Commission, 66th session, in 2014, decided “to recommend to the General Assembly: (a) To

dependency and children conceived after perpetration of the crime) related to expulsion proceedings.

94

4

The Legal Framework of Migration in Brazil and in MERCOSUL

take note of the draft articles on the expulsion of aliens in a resolution, to annex the articles to the resolution, and to encourage their widest possible dissemination; (b) To consider, at a later stage, the elaboration of a convention on the basis of the draft articles” (A/69/10).51 In October 2017, in its 72nd session, the International Law Committee introduced a draft resolution entitled “Expulsion of aliens” (A/C.6/ 72/L.13). In this opportunity, the General Assembly decided “to include in the provisional agenda of its seventy-fifth session the item entitled “Expulsion of aliens”, with a view to examining, inter alia, the question of the form that might be given to the articles or any other appropriate action”.52 If the draft resolution will take form of a recommendation, or of a convention, will be decided during the seventy-fifth session of the International Law Commission, which will take place in 2020.

4.1.8.3

Deportation

Article 50 of the new law states that “deportation is a measure resulting from an administrative procedure that consists of the compulsory withdrawal of a person who is under an irregular migratory situation in the national territory” (Vasconcelos et al. 2018, p. 43). Just as in repatriation, the deportation is also related to the irregularity of an immigrant. However, in the deportation, the irregular migratory situation might refer to an irregular entry or to an irregular stay of the immigrant in the country, whereas in the repatriation the irregularity is observed when admitting an immigrant into the territory of a state (i.e., when the person tries to officially enter the territory of a state) (Nunes 2017, p. 118). In comparison with the previous Foreigners’ Statute, deportation continues to have an administrative (and not criminal) nature, determining the compulsory departure of the irregular immigrant (either to his/her country of nationality or to his/her country of origin). Nevertheless, deportation is not the only sanction applied to irregular immigration cases. Article 109 of the law defines administrative infractions and sanctions, established as follows: I. unauthorized entry in the national territory: Sanction: deportation, in case the person neither leaves the country, nor regularizes the migratory status in due time; II. overstaying in the national territory after the expiration of the legal term of stay established in the migratory documents: Sanction: fine per day of overstaying and deportation, in case the person neither leaves the country, nor regularizes the migratory status in due time; III. lack of registration within 90 (ninety) days from the entry in the country, in the cases where civil identification is mandatory; Sanction: fine; IV. lack of registration of the immigrant, for the purpose of a residence permit, within 30 (thirty) days from the notification by the competent body: Sanction: fine per day of delay;

51 52

Available via: http://www.refworld.org/docid/5539ee604.html. Available via http://undocs.org/A/C.6/72/L.13.

4.1 The Legal Framework of Migration of Non-MERCOSUL Citizens in Brazil

95

V. transportation to Brazil of a person without regular migratory documents: Sanction: fine per transported person; VI. breach by the carrier company of the agreement to support the stay of, or to promote the removal from the national territory of a person who was conditionally authorized to enter Brazil due to the lack of the required migratory documents: Sanction: fine; VII. escaping from migratory controls, either in the entry in or in the exit from the national territory: Sanction: fine (Vasconcelos et al. 2018, pp. 73 and 75).

Items I and II of article 109 refer to deportation. The irregular entry or stay is not a crime, but a misdemeanor and deportation is a sanction or penalty to this misdemeanor (Nunes 2017, p. 119). Whereas the Foreigners’ Statute used to provide, in its article 61, that an immigrant subject to deportation could wait for the end of his/her proceeding, either at liberty or in jail, the new law does not allow for any imprisonment of the immigrant who illegally enters or stays in Brazil. It is important to mention that items V and VI of article 109 refer to the facilitator of the irregular immigrant, i.e., people who transport undocumented immigrants and, by doing so, consequently violate the provisions of the law.53 Deportations, together with the fines, are part of the possible penalties to which immigrants and facilitators are subject.54 Being irregular under Brazilian law means to be (or not) in compliance with the law’s requirements concerning, for instance, visa aspects, legal travel documents, and residency rules within Brazilian territory, which might develop into a deportation proceeding. Once the situation that has given cause to deportation is regularized, the deported immigrant might return to Brazilian territory (Nunes 2017, p. 121). In this sense, the research of Anderson and Ruhs on the three levels of compliance of an immigrant within the territory of a country summarizes the variety of possibilities that a person may go through considering whether he/she is an irregular immigrant: Compliant migrants are legally resident and working in full compliance with the employment restrictions attached to their immigration status. Non-compliant migrants are those without the rights to reside in the host country (i.e. those “illegally resident”). Semicompliance indicates a situation where a migrant is legally resident but working in violation of some or all of the employment restrictions attached to the migrant’s immigration status (Anderson and Ruhs 2008, p. 10).

53

Article 115 of Brazil’s Migration Law has modified Brazil’s Criminal Code, adding article 232-A to it, penalizing also under Criminal Law facilitators who promote, by any means, illegal migration, with the aim of obtaining economic advantage of the illegal entry of a foreigner in the national territory or of a Brazilian in a foreign country. Likewise, if facilitators promote, with the aim of obtaining economic advantage, the exit of a foreigner from the national territory so as to illegally enter a foreign country, they will also be subject to a penalty of 2 (two) to 5 (five) years of imprisonment. 54 The amount of the fine is determined during the administrative process the irregular immigrant or facilitator is subject to and follows the instructions contained in articles 300 to 311 of Decree No. 9,199/2017.

96

4

The Legal Framework of Migration in Brazil and in MERCOSUL

Analyzing this explanation from the perspective of Brazilian law, we could exemplify these distinctions as follows. A compliant immigrant is a businessperson entering the country with a valid travel document according to article 5 of the Migration Law and owning a business affairs/temporary visa (article 12, II combined with article 13, II) during the time stipulated by the Brazilian authority. A noncompliant immigrant would be the case of this same businessperson if he/she decides to establish his/her residence in Brazil after having done business in the country, holding the document and visa cited in the example above, rather than having a residence permit in accordance with article 30 of the Migration Law. In this case, this person would be subject to deportation proceedings. Finally, the semi-compliant immigrant would be, in the case of this very same businessperson who is now in possession of a valid residence permit, but who exclusively owns a newspaper company, infringing then article 222 of Brazilian Constitution, which provides that newspaper companies, sound broadcasting companies, or sound and image broadcasting companies shall be owned exclusively by native Brazilians or those naturalized for more than 10 years, or by legal entities incorporated under Brazilian laws and headquartered in Brazil. In this case, this immigrant, if not in the process of regularizing his/her situation, could also be subject to deportation.55

4.2

Understanding MERCOSUL’s Structure and Its Relation to the Movement of People Within the Regional Integration System

In this subchapter, we would like to situate Brazilian legal provisions on migration into the context of MERCOSUL’s migration movements, considering the regional cooperation project that MERCOSUL represents. We will start by linking migration to trade negotiations. According to Ferrie and Hatton, with the intention of making migration policies less restrictive, it would be necessary to sign multilateral agreements to lower the barriers to migration in the same way as the GATT/WTO has done for international trade. However, the authors draw attention to the fact that trade flows are balanced, whereas migration flows are not: Despite the fact that freer trade is normally in each country’s individual interest, negotiations at the WTO are based on the exchange of “concessions” for market access. Thus, one of the key principles is reciprocity. But while trade flows are balanced, migration flows are not. It is difficult to imagine that access to the labor markets of poor countries would be a sufficiently attractive concession to induce rich countries to open their labor markets. Added to that, those countries that send migrants do not, on the whole, place any value on seeing more of their citizens emigrate (Ferrie and Hatton 2015, p. 82).

55

On a deeper explanation of an immigrant’s levels of compliance, on the illegal immigrant under Brazilian law and on the veto to article 118 of the new Brazilian migration law, see: Castro and Ribeiro (2018).

4.2 Understanding MERCOSUL’s Structure and Its Relation to the Movement. . .

97

Alternatively, the authors suggest linking migration to international trade from a different perspective, i.e., building migration upon existing regional cooperation in trade and other dimensions. The authors cite the European Union as the most advanced example of regional cooperation in trade and other aspects, but they also consider MERCOSUL (among other regional cooperation models), even though MERCOSUL is considered today as an imperfect customs union. Ferrie and Hatton believe that, within a regional cooperation, “development gaps between the countries are small by world standards,” so that “migration is driven more by comparative advantage, making two-way flows a more realistic prospect and offering some potential for building agreements based on reciprocity” (Ferrie and Hatton 2015, p. 82). This abovementioned logic applies to regional cooperation, especially because the cultural gaps between the countries which compose that regional cooperation are normally not wide. The problem is, however, when the countries united by a regional cooperation pact have to deal with migration originating from outside of the regional cooperation. This is when it could be proposed that MERCOSUL should not be considered a role-model for developing migration laws and policies related to people coming from third countries. In order to first comprehend the movement of people in the MERCOSUL region it is important to briefly understand what MERCOSUL is and what is behind its institutions and ideals. “Latin America is second only to Europe in terms of the intensity and extension of the phenomenon of regionalism both in the past and today” (Gardini 2012, p. 51). As stated by Baquero-Herrera, regional integration is not a new subject in Latin America. In fact, Latin American integration56 represents the “unfinished political dream” of Simon Bolívar, after he made Andean countries free from Spanish conquerors between 1817 and 1820 (Baquero-Herrera 2005, p. 140). According to Carvalho de Vasconcelos, regionalism in Latin America was not thought of as a linear process; the former Iberian colonies have always tried to move closer, but they have all experienced instabilities and failed while searching for regional consolidations.57 Nevertheless, according to Gian Luca Gardini, the Common Market of the South (MERCOSUL) “is by far the most sophisticated, long-lasting and successful example of regional integration involving Latin American countries, despite its everpresent limits and contradictions” (Gardini 2012, p. 61). MERCOSUL has been facing difficult political tensions within its Member States, especially when it comes to the readmission of Paraguay in 2013, and to the admission and suspension of

56 Referring herewith not only to MERCOSUL, but also to all of the many integration movements and agreements that have emerged and disappeared since the 1960s, such as the Latin America Free Trade Association (LAFTA), the Andean Pact, the Caribbean Community and Common Market (CARICOM), the Latin American Integration Association (LAIA), and more recently in 2019, the Union of South American Nations (USAN). For more details see: Baquero-Herrera (2005). 57 As an example, the failure of the Latin American Free Trade Association (LAFTA), as well as the difficulties of the Latin American Integration Association (ALADI), see: Vasconcelos (2017, p. 64).

98

4

The Legal Framework of Migration in Brazil and in MERCOSUL

Venezuela of the region, which occurred, respectively, in 2012 and 2017.58 The current instability might negatively influence not only the development of MERCOSUL as a regional integration project itself, but also, as consequence, any project that could aim at the management of migratory flows and integration of MERCOSUL citizens within the region. The first initiatives that brought MERCOSUL to life were based on bilateral relations between Brazil and Argentina. Already in 1979 Argentina and Brazil signed the Itaipu Treaty, formally starting a phase of cordiality and friendship between the two countries, which has been lasting until the present time (Gardini 2012, p. 62). Later on, in the 1980s, when the world was suffering an economic crisis and when Brazil, Uruguay and Argentina returned to democracy, bilateral relations started with meetings between the presidents Alfonsín (Argentina) and Sarney (Brazil) (Sánchez 2001, p. 39). “Economic modernization and democratic consolidation seem to have been the triggers for the bilateral economic integration process initiated” by both countries (Gardini 2012, p. 62). In this context, both presidents met in Foz do Iguaçu on November 30th 1985, and ended up signing the Declaration of Iguaçu, which had as it utmost goal the promotion of the joint development of both countries (Sánchez 2001, p. 39). The two most important points covered by the Declaration were the joint economic development and the consolidation of democracy. In Olivier Dabène’s words (2009, p. 74), “this Declaration inaugurated a circular type of thinking about democracy, development, and regional integration” and, even though Brazil and Argentina had been rivals since their independence, “their growing economic interdependency required new commercial approaches towards each other” (Rivera 2014, p. 227). Less than 1 year later, in July 1986, the Buenos Aires Act determined a system of sectorial protocols (twenty-four were signed) whose goal was to reduce gradually customs barriers59 to bilateral trade between Brazil and Argentina. Two years later, in 1988, a common economic area was planned to be created by a treaty of integration between Brazil and Argentina (Tratado de Integración, Cooperación y Desarrollo entre la Republica Argentina y La Republica Federativa del Brasil): The Argentina-Brazil Treaty of Integration announced the constitution of a free trade area within ten years. However, at this juncture the initial motivation seems to have petered out and the systems of protocols soon ran out of production sectors with a significant interest in integration (Gardini 2012, p. 62).

With two neoliberal governments in Brazil and in Argentina in the early 1990s, the idea of using MERCOSUL in order to confront economic global competition became stronger. It has been thought that a joint and stable market in the Southern Cone of the Americas could be more attractive to investments from developed

58

On the legality of the admission of Venezuela, see: Sloboda (2015). The first time there was an attempt to created a customs union in Latin America was in 1909, when Argentina, Chile, Paraguay and Uruguay started—without success—to negotiate an agreement in this sense. See: Vasconcelos (2017, p. 66). 59

4.2 Understanding MERCOSUL’s Structure and Its Relation to the Movement. . .

99

countries, putting the region in a better position than, at that time, transition economies. On 26th March 1991, the treaty for the constitution of a common market between Argentina, Brazil, Paraguay and Uruguay (also known as the Treaty of Asunción) was signed, and Bolivia, Chile, Colombia, Ecuador and Peru became Associated States to the MERCOSUL (Campa 2014, p. 229). The Treaty of Asunción officially created the MERCOSUL and figures as the legal basis of this regional integration project. The aim of the Treaty was to promote the logic of the right to development through the common external tariff (TEC), as well as through the free circulation of goods, services and persons (Maia Tavares 2014, pp. 13–14). The plan in 1991 was to make the common market operational by 1995 (Gardini 2012, p. 63), also by reaching the customs union (Sosa 2013, p. 122). For Adelaida Sánchez, the Treaty of Asunción reaffirms Latin America’s political will to lay the foundations for a closer union among its peoples in order to achieve the objectives of integration, economic development and social justice (Sánchez 2001, p. 41).60 After all, the four founding members of MERCOSUL deal and have always had to deal with severe social issues, as well as with several economic crises, not to mention that the four member States of the MERCOSUL share very recent re-democratization processes. MERCOSUL maintains until today its intergovernmental profile, rather than a supranational one (Vasconcelos 2017, pp. 70–73). In 1992, MERCOSUL met in Las Leñas, Argentina, where the presidents of the four MERCOSUL Member States stated that the “full functioning of democratic institutions was an indispensable condition to the existence and development” of the Common Market of the South (Gardini 2010, p. 168). During this historical summit, the presidents realized that MERCOSUL’s integration processes was irreversible and feasible (Sánchez 2001, p. 43). The most important result of the Las Leñas Summit was the Decision 1192, which established a timescale for the achievement of the goals provided by the Treaty of Asunción. In fact, the Decision 1192 was a realistic plan of action which should be followed in order to reach the goals for the transitional period of the integration. Another outcome of the Las Leñas Summit was the Decision 03/92, which consists of the elaboration for a procedure for complaints and consultations on unfair trade practices. Finally, Decision 10/92 provides for the definition of common criteria which should be used by MERCOSUL when negotiating during the transitional period with ALADI countries. Sánchez affirms (2001, p. 43) that the Summit of Las Leñas contributed to the credibility of economic integration between the four countries. By beginning of 1995, the common external tariff has been implemented by the four countries. The constitution and the organization of MERCOSUL was provided solely by the Treaty of Asunción until 1st January 1995, “when it was bolstered by the Protocol of Ouro Preto, which was signed on December 17, 1994” (Rivera 2014, p. 226). Article 34 of the Ouro Preto Protocol (POP) has granted MERCOSUL an

60 In this sense, focusing on the idea of social justice that the Asunción Treaty provides, see: Santestevan (2007, p. 365).

100

4

The Legal Framework of Migration in Brazil and in MERCOSUL

international legal personality. Since then, MERCOSUL figures as an international organization, having its right and duties before other subjects of Public International Law (Vasconcelos 2017, p. 74). The Protocol of Ouro Preto (POP) also extended the organization of MERCOSUL by creating councils, commissions and secretariats and clearly defining their functions.61 This institutional structure allowed MERCOSUL to accomplish the provisions of the Asunción Treaty, as well as of other treaties that could be ultimately signed by this regional integration entity (Suñe 2015, p. 213). The Ouro Preto Protocol consolidated MERCOSUL as an intergovernmental actor, creating a structure composed of: the Common Market Council (CMC), which is the supreme actor of MERCOSUL; the Common Market Group (GMC), which figures as MERCOSUL’s executive organ and which is able to create Working Subgroups; the Joint Parliamentary Commission; the Trade Commission of MERCOSUL (CCM); the Administrative Forum; the Economic and Social Consultative Forum (FCEE); as well as by MERCOSUL’s Administrative Secretary (Vasconcelos 2017, p. 73; Camargo 2010, p. 501). This means that MERCOSUL’s structure has gained an institutional identity. The Joint Parliamentary Commission, for example, became the representative organ of the parliaments of each MERCOSUL’s Member State and, according to the Ouro Preto Protocol’s wording (article 22 to 27), this Commission should be the one responsible for facilitating the internalization of the norms of MERCOSUL by each of the Legislative Powers of the Member States, harmonizing their internal legislation.62 In 1998, the four MERCOSUL members, together with Bolivia and Chile, “signed the Ushuaia Protocol on democratic commitment, which gave a binding character to the democratic principles set out in previous presidential statements” (Gardini 2010, p. 192). The conclusion of the Ushuaia Protocol was triggered by a 1996 attempted coup in Paraguay; according to the Protocol’s text, in case of breach of the democratic order in any of the MERCOSUL Member States, the other signatory parties may, after consultation, take the necessary measures to restrain the violation of democracy. These measures consist of the temporary suspension of rights and obligations related to the country’s integration process. In this context, the right to deliberate on the entry of new members into the MERCOSUL, provided by article 20 of the Asunción Treaty, is one of those rights to be suspended (Sloboda 2015, p. 706). The Ushuaia Protocol was the instrument used for the suspension of Paraguay (2012), as well as of Venezuela, in 2017, and figures as an instrument of maintenance of democracy within MERCOSUL.63

61

See the full text of the Ouro Preto Protocol via http://www.planalto.gov.br/ccivil_03/decreto/ d1901.htm. 62 In reality, this goal could not be achieved. Vegevani and Ramanzini mention many reasons for that, including the fact that the norms debated in the Joint Parliamentary Commission were not decisive for the sake of the integration process. The Commission remained as a body depended on the Executive Power and merely with an advisory character. For further details, see: Vigevani and Ramanzini Júnior (2013, p. 203). 63 For more information on the suspension of Paraguay in 2012, after President Lugo’s impeachment process, see: Monte and Anastasia (2017, p. 12).

4.2 Understanding MERCOSUL’s Structure and Its Relation to the Movement. . .

101

In the following years, MERCOSUL kept developing itself, bringing to its structure some characteristics which aimed at the deepening of its integration, but which appeared to be insufficient to strengthen the integration process. One example is the Olivos Protocol, from 2002, which provided the creation of a dispute resolution system, creating the MERCOSUL’s Permanent Review Court (Tribunal Permanente de Revisión—TPR) (Suñe 2015, p. 217). Also, in December 2005 the Common Market Council approved the Constitutive Protocol of the MERCOSUL Parliament, which was officially stablished in December 2006, substituting the Joint Parliamentary Commission and aiming at the representation of the interest of MERCOSUL’s citizens (Vigevani and Ramanzini Júnior 2013, p. 205). The so-called PARLASUL aims at “strengthening the cooperation between national parliaments; streamlining the incorporation of MERCOSUR norms into national law; facilitating the participation of civil society in communitarian issues; and increasing the democratic content of the MERCOSUR project” (Mariano et al. 2017, p. 7). However, national governments have strong resistance to make PARLASUL a supranational organization; decision-takings in MERCOSUL are based on national executive powers.64 The lack of improvement of PARLASUL proves that, even in free market zones, a minimum of transfer of sovereignty is necessary, so that the integration project can move forward. When observing the regional integration context from a national legal perspective, it is important to mention that Brazil’s engagement with regional and multilateral initiatives (not only economic ones) is supported by the Brazilian Constitution, in its Article 4. This Article states that the international relations of Brazil are governed by, among others, the principle of cooperation among peoples for the progress of mankind. Furthermore, the Brazilian constitution, in the same Article 4, in its sole paragraph, with more intensity expresses the necessity of the pursue of the economic, political, social and cultural integration of Brazil with the peoples of Latin America, aiming the formation of a Latin-American community of nations. However, the goals of the creation of a common market in South America65 are still far from being reached: at least since 1997, MERCOSUL has been dealing with difficulties which prevent this integration initiative from developing itself into a solid union of South American nations. Not only domestic politic situations, but also foreign policies, besides political instability and cultural characteristics of the countries have maintained them far from the initial goals of the Asunción Treaty. It is still not possible to affirm that, from an economic point of view, this regional integration has managed to create a notable interdependence between its Member States (Zelicovich 2015, p. 99). In Gardini’s point of view, although MERCOSUL has been existing for more than 25 years, it still cannot be defined as a common market, 64

For more information on the difficulties PARLASUL has to develop itself as a supranational organ, representing MERCOSUL’s citizens, see: Mariano et al. (2017, pp. 6–9) and Barral and Perrone (2007, pp. 237–247). 65 As of February 2020, Member States of MERCOSUL are: Argentina, Brazil, Paraguay, Uruguay and Bolivia (Bolivia signed the Protocol of Adhesion to MERCOSUL in 2015, which will only enter into force when all Member States of MERCOSUL ratify the protocol).

102

4

The Legal Framework of Migration in Brazil and in MERCOSUL

as “it is a hybrid of a free trade area and an incomplete customs union” (Gardini 2012, p. 63). This affirmation is based on the fact that an economic integration between countries is based on a four-level development. Even though this book does not aim at exploring the theories of economic integration, it is important to mention that economic integration starts by a free trade zone, in which customs tariffs, as well as non-tariff-related obstacles to trade are abolished between the countries that belong to the zone. On a second level, there is the customs union, which consists of the elements of a free trade zone mentioned above, together with the implementation of a common external tariff (CET) to the imports derived from non-member States of the union (third countries). The third level of economic integration of countries is the common market (after which MERCOSUL is actually named), in which one can find all the characteristics of the other two levels, adding the free movement of persons, services, goods, and capital within the Member States, as well as the coordination and harmonization of common economic policies. The common market, when advanced, could reach the fourth and last level of integration between the countries, which is the single market or economic union. Once these levels are reached, it is possible to create a political union, which is the case of the European Union.66 In the case of MERCOSUL, even though the free trade zone has been implemented by the elimination of all tariff and non-tariff barriers that could affect the economies of the Member States, the common external tariff, which has been adopted by the MERCOSUL countries in 1995, still suffer various exemptions.67 Each MERCOSUL Member State maintains a separate exceptions list of items over which the common external tariff is inapplicable. In the case of Brazil, for example, there are currently over 200 goods listed to which the common external tariff from MERCOSUL is not applied.68 The incompleteness of MERCOSUL is one of the most discussed points related to its existence. MERCOSUL’s incompleteness is also related to the lack of integration among its Member States. According to Basedow, integration is not only a matter of transfer of sovereignty and communitarization of the political decision-making. For him, integration is more than the progress of the cross-border search for comparative cost advantages: it is above all a cultural phenomenon (Basedow 2001, p. 11). It must be said that not only the economy and commercial conditions within the region, but also the citizens of MERCOSUL play an important role in the integration of the region. In fact, the Common Market of the South can never be achieved if the citizens of its Member States are also excluded from the integration process (Stelges 2002, p. 61) and, especially, if they do not perceive themselves as members of the same cultural milieu. As stated by Maia Tavares, one cannot create an active and influential Latin-American political space in the international society, if

66

This explanation on the levels of integration can be found in Carneiro (2007, pp. 283–284). On the possible development of MERCOSUL into a common market: see: Casella (2003). 68 The mentioned list is available via http://www.mdic.gov.br/comercio-exterior/estatisticas-decomercio-exterior-9/arquivos-atuais under “Lista de Exceções à TEC”. 67

4.3 The Legal Framework of Migration in MERCOSUL

103

Latin-American citizens are not empowered (Maia Tavares 2015, p. 460). Empowerment means not only the participation of the citizens on MERCOSUL’s decisions and policies, but also their free movement within the region, and their integration among non-MERCOSUL citizens. How (and if) this empowerment is possible through migration will be discussed in the following section.

4.3

The Legal Framework of Migration in MERCOSUL

The empowerment of Latin American people also goes through common and stable migration law and policies within the MERCOSUL countries. “The migratory flows in the region are particular and are connected to the regional cultural similarities which are present in South America, as well as in Latin America”.69 According to Ana María Santestevan (2007, p. 364), “the evolution of migratory patterns of the region have been influenced not only by the circumstances of economic ‘boom and bust’, but also by contingent social and economic factors”. However, as researched and stated by Modolo (2015, p. 574), the regional politics of MERCOSUL lacks basic information on migration, which could be justified by the almost exclusive economic profile MERCOSUL had in the beginning of the integration process. Modolo emphasizes that, because of this economic approach of the integration process and because of a relatively young integration process, there is an underestimation of the migration topic within the region, so that even today one finds relatively few literature on the movement of people within MERCOSUL. Nevertheless, the cooperation of MERCOSUL Member States in migration matters is represented, for example, in Brazil’s new Migration law. In its article 3, item XIV, where the new law describes the principles and guarantees of the Brazilian migration policies (Vasconcelos et al. 2018, p. 13), it is aimed the strengthening of the economic, political, social and cultural integration of the peoples of Latin America, through the constitution of spaces for citizenship and the free movement of persons. In this sense, Karoline Popp considers MERCOSUL to be “a classic example of an institution that commenced (in 1991) as a common market with focus on economic integration and gradually added migrations to its agenda” (Popp 2012, p. 369). According to the author, some mobility provisions have been consolidated by the end of the 1990s and beginning of the 2000s. Nevertheless, attention must be drawn to two concepts that, according to Aline Moura (2015, p. 632), are often confused, but should be clarified, especially when analyzing MERCOSUL’s policy on migration. Moura refers to the difference between migration and free movement of people. Migration relates to the notion of closed borders and to the power of a particular State in controlling the entry of

69

In order to better understand the similarities between Latin American/South American States and to comprehend the difficulties related to the definition of the Latin America and South America regions, see: Diniz (2007) and Brandalise (2013).

104

4

The Legal Framework of Migration in Brazil and in MERCOSUL

foreigners into its territory; the free movement of people evokes the idea of open borders, and the possibility of people to freely move within the integrated territory of a certain region. Even though we agree with the difference given by the author, we do believe that, once the movers (as an immigrant or as a citizen of a regional integrated area) are settled in another territory which is not the one of their home country, they face different life experiences in comparison with those from nationals (which might also include cultural experiences and/or even cases of prejudice). This means that the process and the background related to immigrants, and to citizens of a specific regional integration area, might be different, but their conditions as migrants in the territory of a State are, in their essence, alike. This is because they are all migrants, carrying out migratory movements and intending to live outside their country of origin, experiencing different cultures and ways of life, often subjected not to the same life experiences, rights and duties nationals are. We believe that the difference between migration and free movement of people relies solely on the juridical nature of the person who is entitled to some specific rights (either as a migrant or as a citizen) and, therefore, we do consider in our analysis the slight difference between free movement of persons and migration. However, we believe that the conjoint analysis of each of them gives this research a more complete aspect on the movement of people, especially because, in the case of MERCOSUL, the rights of MERCOSUL citizens and non-MERCOSUL citizens are not very different from each other, as we argue in this chapter. The Asunción Treaty,70 in its article 1, states that the Common Market of the South Cone leads, among other issues, to the free movement of goods, services, and factors of production between the Member States. These can be achieved through the elimination of customs duties, and non-tariff restrictions, on the movement of goods and any other measures having equivalent effect.71 Even though the Asunción Treaty envisions the formation of a common market, its provisions do not include the free movement of people within its Member States. As stated by Camila Fernandes and João Carlos Silva, the lack of regulation of one of the most important elements of production of goods, (i.e. the lack of regulation of the free movement of the working force), contradicts the economic integration model that has been proposed for MERCOSUL (Fernandes and Silva 2013, p. 360).72 Notwithstanding its hybrid status of free trade area and incomplete customs union, explained above, and the difficulties in implementing and harmonizing in

70

For a complete and detailed understanding of MERCOSUL’s legal framework, see: Giupponi (2010). 71 Original text of article 1, in Portuguese: “Este Mercado Comum implica: A livre circulação de bens, serviços e fatores produtivos entre os países, através, entre outros, da eliminação dos direitos alfandegários e restrições não tarifárias à circulação de mercadorias e de qualquer outra medida de efeito equivalente”. Available via http://www.planalto.gov.br/ccivil_03/decreto/1990-1994/ d0350.htm. 72 In the same sense, see: Araya (1998, p. 144).

4.3 The Legal Framework of Migration in MERCOSUL

105

all Member States the norms developed by its legislative bodies,73 MERCOSUL did have the initiative of developing migration-oriented (or at least free movement of people-oriented) norms and/or declarations. Fernandes and Silva believe that the first time MERCOSUL explicitly dealt with migration was in December 2010, during the 40th Ordinary Meeting of the Common Market Council, when it was agreed that all acts of racism, discrimination, and xenophobia shall be repudiated (Fernandes and Silva 2013, pp. 375–376). During this meeting, a document was signed, namely, the Special Declaration of the Presidents of the MERCOSUL Member States and its Associated States on Migration.74 In this document, the Member States agreed that it is necessary to guarantee respect for, and promotion of, the human rights of migrants and their families, regardless of their nationality, migratory status, ethnic origin, gender, age or any other discriminatory issue. The importance of the gradual move towards the creation of a regional space for the free movement of people, respecting the domestic legislation of the receiving State, and in accordance with the full exercise of the rights of migrants is also guaranteed by the document. This gradual move towards a common law and policy for migration within the MERCOSUL region was thought as one of the fundamental pillars of the process of integration. According to the Presidents, this new approach should contribute to the full integration of migrants in their countries of destination, providing them with equal conditions of access to education, health and work, as well as with the development of the countries of origin of the MERCOSUL migrants. It is important to note, however, that these Declarations of the Presidents do not figure in the Protocol of Ouro Preto (POP) as a legal source of MERCOSUL.75 According to the POP, in its article 41, the legal sources of MERCOSUL are (besides the Treaty of Asunción and its protocols, additional documents, and agreements based on it) the Decisions of the Common Market Council, as well as the Regulations of the Common Market Group and the Directives of MERCOSUL’s Trade Commission, which have been adopted since the Treaty of Asunción’s entry into force.76 The Declarations of the Presidents, drafted during ordinary meetings, represent a non-obligatory instrument that simply manifests the interests of the

73

As explained in the previous section, the Ouro Preto Protocol does not set deadlines or sanctions in case of no internalization of the MERCOSUL norms in each of the Member States. 74 Available via https://www.mrecic.gov.ar/declaracion-especial-de-los-presidentes-de-los-estadospartes-del-mercosur-y-estados-asociados-sob-0. 75 On this issue also see Mansueti (2010, p. 249). 76 Artigo 41 As fontes jurídicas do Mercosul são: I. o Tratado de Assunção, seus protocolos e os instrumentos adicionais ou complementares; II. os acordos celebrados no âmbito do Tratado de Assunção e seus protocolos; III. as Decisões do Conselho do Mercado Comum, as Resoluções do Grupo Mercado Comum e as Diretrizes da Comissão do Mercosul, adotadas deste a entrada em vigor do Tratado de Assunção.

106

4

The Legal Framework of Migration in Brazil and in MERCOSUL

Presidents and are therefore not legally binding.77 Thus, it can be considered that these Declarations retain a symbolic importance rather than an effective one.78 Unlike Fernandes and Silva, however, we believe that there are some migration law and policy frameworks developed by MERCOSUL that pre-date 2010, and that are also relevant for the freedom of movement of MERCOSUL citizens. When referring to Santestevan’s research, conducted in 2007, one could note some concrete main advances of MERCOSUL in the field of free movement of persons (Santestevan 2007, pp. 366–374). For instance, the Working Subgroup No. 10 (WSG No. 10) of the Common Market Group. This Working Subgroup on Labor Affairs, Employment, and Social Security has been set up under Resolution 20/95 of the Common Market Group (Uriarte 1997, p. 19), intended to adopt a “framework of minimum rights for the workers of the region, the creation of a database and the encouragement of information exchanges regarding the labour policies applied by each Member” (Santestevan 2007, p. 367). This Working Subgroup (WSG) was responsible for the drafting of the MERCOSUL Social-Labor Declaration (in 1998),79 and the Labor Market Observatory, both of them stating the non-discrimination principle, and the equality of the rights of migrant/frontier workers and national workers (Santestevan 2007, p. 367). An important achievement of the WSG No. 10 is the Draft Mercosur multilateral social security agreement, which incorporates the fundamental material principles of basic international social security law (Uriarte 1997, p. 23). Today, the WSG No. 10 is divided into three thematic commissions: (i) labor relations; (ii) employment, migrations, qualification and vocational training; and (iii) health, safety at work, labor inspection, and social security.80 Several other initiatives related to social and labor matters within the MERCOSUL have been developed. For instance, the Social-Labor Commission of the MERCOSUL, which is an organ within the framework of the Common Market Group and which has been “created to assist with and promote the application of the MERCOSUR Social-Labour Declaration” (Santestevan 2007, p. 369). The Social-

77

For further information on MERCOSUL’s sources of law, see: Giupponi (2012). Nevertheless, some of these Declarations should be cited, such as the Special Declaration of the States Parties and Associated States of Mercosul on the Humanitarian Crisis of Migratory Movements’ Management (Declaração Especial dos Estados Partes e Estados Associados do Mercosul Sobre a Crise Humanitária de Gestão dos Movimentos Migratórios), from December 21st 2015, as well as the Special Declaration of the States Parties and Associated States of Mercosul on the Situation of Central American Migrant Children and Adolescents Retained at the Southern Border of the United States of America (Declaração Especial dos Estados Partes e Estados Associados do Mercosul sobre a Situação das Crianças e Adolescentes Centro-Americanos Migrantes Retidos na Fronteira Sul dos Estados Unidos da América), from October, 7th 2014. These and other Declarations are available via http://www.mercosur.int/innovaportal/v/4677/3/innova.front/declarac%C3% B5es-e-decis%C3%B5es-presidenciais. 79 On the Social-Labor Declaration, it must be stated that there are discussions on its legal nature, as well as on its enforceability. For more details, see: Mansueti (2010, pp. 249–251). 80 The complete organic structure of MERCOSUL is available via http://www.mercosur.int/msweb/ portal%20intermediario/es/estructura.html#gmc. 78

4.3 The Legal Framework of Migration in MERCOSUL

107

Labor Commission also seeks to monitor the accomplishments of MERCOSUL with international labor norms as well as with the promotion of the free movement of workers within the territory of the MERCOSUL. Also, the Economic and Social Consultative Forum (provided for in articles 28 and 30 of the POP), which represents the economic and social sectors of the Member States, must be mentioned as the organ of MERCOSUL responsible for analyzing and debating the economical, commercial, and social-labor difficulties that migrant workers in the region have to endure. Instead of being composed by government officials (as the WSG No. 10 and the Social-Labor Commission), the Economic and Social Consultative Forum is composed by delegates from trade unions and companies, by NGOs’ representatives, and members of research centers and social organizations, (i.e., by civil society) (Santestevan 2007, p. 369). During the meetings of the Forum, the idea of a simplified agreement on the free movement of people within the region with the only approach of working force supply has been rejected, giving place to the concept of labor migration, and focusing on it in order to debate the migratory movements of MERCOSUL (Mendes 2016, p. 85). In Mendes’ opinion, when referring to the initiatives of the Economic and Social Consultative Forum, MERCOSUL acted under the light of a citizenship for people coming from MERCOSUL Member States. The idea of establishing a citizenship for MERCOSUL was forgotten until 2010, when the Member States approved a multilateral Plan of Action for a MERCOSUL Citizenship Statute (Mendes 2016, p. 89). The Plan of Action for a MERCOSUL Citizenship Statute was approved by decision MERCOSUL/CMC/DEC N
64/2010 and it prescribes equal fundamental rights as well as other benefits to MERCOSUL citizens. One of the principles of the Statute, besides the creation of a regional citizenship for the nationals of MERCOSUL’s Member States, is the free movement of people, equality before the law and equal civil, social, cultural and economic liberties among nationals of MERCOSUL Member States. Also the freedom of settlement, freedom of practicing a profession, access to health assistance and education, free exercise of rights within the MERCOSUL region, and the right to choose the representatives of MERCOSUL in the Parliament (political rights) are points covered by the Statute (Nicolao 2015, p. 11). In order to reach these goals, the Plan of Action provides for the adoption of several measures that are divided into 11 (eleven) chapters: (i) free movement of people; (ii) borders; (iii) identification; (iv) documentation and consular/diplomatic cooperation; (v) work and employment; (vi) social security; (vii) education; (viii) transport; (ix) communication; (x) consumer protection; and (xi) political rights (Ventura et al. 2012, p. 62). However, according to Mendes (2016, p. 90) and Nicolao (2015, p. 12), very few developments have been recently made regarding the Citizenship Statute81 and, in 81

According to the Brazilian version of MERCOSUL’s official website, the most recent developments of the Plan of Action towards the creation of a MERCOSUL citizenship include, but are not limited to: the development of MERCOSUL’s mobility integrated system (SIMERCOSUL), which perceives the amplification and unification of scholarship programs for the exchange of students, professors and researches in higher education institutions; the creation of a common model for

108

4

The Legal Framework of Migration in Brazil and in MERCOSUL

fact, it would be much easier to follow the development of this document if MERCOSUL would provide more transparency, organization and social participation during the process of drawing up its legal norms (Ventura et al. 2012, p. 62). The Statute was an initiative from the Brazilian Government and its full implementation should be completed by 2021, i.e., the Statute should become and additional Protocol to the Asunción Treaty, when the Treaty will celebrate its 30th year of existence. Mondelli identifies the difficulties of implementing the Citizenship Statute, but also believes that the Statute is “a strategic tool – on the level of guidelines and policies – to guide, coordinate and deepen the work to be developed in the region of citizenship rights” (Mondelli 2018, p. 796). Mondelli believes that a deeper integration of MERCOSUL will contribute to the fulfillment of the goals of the Statute. In this sense, the author argues that once MERCOSUL expands its regulations on regional plans especially in relation to the social and citizenship agenda, the project of the Citizenship Statute will move forward (Mondelli 2018, p. 796). In other words: by the time the MERCOSUL citizen identifies his/her rights and obligations under the context of an intergovernmental entity (including the right to freely move within the region, labor rights, education, among others) he/she will be able to understand the concept and the meaning behind the idea of a regional citizenship. It is important to mention the right to recognition and to integration of an individual inside the region, once those who feel excluded from this concept are the ones who might generate instabilities not only within their State of origin, but also within the context of MERCOSUL (Peña 2017, p. 26). Moreover, not only the auto-recognition of MERCOSUL citizens as such, but also the sharing of sovereignty within MERCOSUL Member States (rather than the competition of sovereignty) would contribute to the formation of a MERCOSUL Citizenship, which would facilitate the mobility of MERCOSUL citizens in the region. However, we understand that this sort of engagement would depend on a supranational character of MERCOSUL, which is still far from being reached. In this regard: “Given the low institutionalization within the bloc and the lack of supranational institutions, it remains to be explored whether, and how, rights are implemented by member states, and whether national norms limit or expand those rights for certain groups and in certain countries” (Margheritis 2018, p. 772). Therefore, the consolidation of a citizenship and, consequently, of a clearer movement of people within the region is yet to come. With regard to integration of MERCOSUL citizens, Santestevan also draws attention to the meetings of MERCOSUL Internal Affairs Ministers, of the Employment Ministers and of Education Ministers. Like the Presidents’ Meetings, the Ministers’ meetings are not formally part of the institutional structure of MERCOSUL (Santestevan 2007, pp. 369–370). Nevertheless, some suggestions

vehicle identification signs; the revision of the Recife Agreement, regulating an integrated border control and facilitating the migratory flows between the State Parties; the harmonization of labor and social security legislations. See: http://www.mercosul.gov.br/o-mercosul-na-vida-do-cidadao/ estatuto-da-cidadania.

4.3 The Legal Framework of Migration in MERCOSUL

109

for free movement of people which originated from meetings of MERCOSUL Internal Affairs Ministers have been endorsed by the Common Market Council, such as the Agreement on Residence for Nationals of the State Parties of MERCOSUL and Associated States, as well as the Visa Waiver Agreement. While dignifying working conditions and respect for labor and social security rights have been emphasized by successive meetings of MERCOSUL Employment Ministers, MERCOSUL Education and Culture Ministers have also joined for the sake of developing a common system of mutual recognition of degrees and professional qualifications. In this regard, the Education Ministers have developed three noteworthy Educational Integration Protocols, which were later submitted for ratification to the Member States, and which have an impact on the facilitation of employment and trans-frontier mobility of people: a) the Educational Integration Protocol on the Recognition of Certificates, Degrees, and Primary- and Non-Technical Secondary-Level Studies (1994); b) the Educational Integration Protocol on the Revalidation of Diplomas, Certificates and Degrees, and the Recognition of Secondary-Level Technical Studies (1995); and c) the Educational Integration Protocol on the Recognition of University Degrees for the Pursuit of Postgraduate Studies at the University of MERCOSUR countries (1995) (Santestevan 2007, p. 372).82

Moreover, under the basis of the Asunción Treaty, and aiming at the gradual liberalization of the free movement of services, an Ad Hoc Group of Services has been created inside the structure of the Common Market Group. This Ad Hoc Group 82 The Educational Integration Protocol on the Recognition of Certificates, Degrees, and Primaryand Non-Technical Secondary-Level Studies (approved in 1994 under MERCOSUL/CMC/DEC. No. 4/94) was signed in 2002, ratified by Brazil in 2008 and internalized in Brazil by Decree No. 6.729, from 12 January 2009 under the name Protocolo de Integração Educativa e Reconhecimento de Certificados e Estudos de Nível Fundamental e Médio Não-Técnico entre os Estados Partes do Mercosul, Bolívia e Chile, assinado em Brasília, em 5 de dezembro de 2002. Also the Educational Integration Protocol on the Revalidation of Diplomas, Certificates and Degrees, and the Recognition of Secondary-Level Technical Studies (approved in 1995 under MERCOSUL/CMC/DEC. N
7/95) was signed in 1995, and became internally valid in Brazil through Decree No. 2.689, from 28 July 1998 under the name Protocolo de Integração Educacional, Revalidação de Diplomas, Certificados, Títulos e de Reconhecimentos de Estudo de Nível Médio Técnico. Lastly, the Educational Integration Protocol on the Recognition of University Degrees for the Pursuit of Postgraduate Studies at the University of MERCOSUL countries (approved in 1996 under MERCOSUL/CMC/DEC. No. 8/96) entered into force in Brazil in 1999 and was internalized by Decree No. 3.196, from 5 October 199 under the name Protocolo de Integração Educacional para Prosseguimento de Estudos de Pós-Graduação nas Universidades dos Estados Partes do Mercosul. Another instrument in the field of education, which is also important to mention, refers to the Agreement on Titles and University Degrees for the Exert of Academic Activities in MERCOSUL Member States (free translation from Acordo de Admissão de Títulos e Graus Universitários para o Exercício de Atividades Acadêmicas nos Estados Partes do Mercosul), which was ratified by Brazil in 2004 and entered into force in Brazil in 2005, through Decree No. 5.518, from 23 August 2005. According to this agreement, the academic exchange between the higher education institutions in the MERCOSUL countries shall be facilitated, in order to optimize the scientific, technological and cultural qualification of the academics in the MERCOSUL Member States. For more information on the recognition of Masters’ and Doctorate titles from the MERCOSUL countries, see: Mazzuoli (2011).

110

4

The Legal Framework of Migration in Brazil and in MERCOSUL

of Services should regulate the relationship between the Member States by drafting an additional Protocol to the Asunción Treaty on trade in services (Modolo 2015, p. 582). In 1997, The Ad Hoc Service Group drew up the Protocol of Montevideo on Trade in Services in the Southern Common Market,83 as well as, among others,84 an Annex on Movement of Natural Persons Supplying Services, which entered into force in 2005 (Modolo 2015, p. 582). Even though the Protocol has a foreign investment approach, it clearly states in its article 2 that the presence of natural persons in the territory of other Member States is essential to provide the region with services. Before the entry into force of this Protocol in 2005, the Agreement for the MERCOSUL Visa was approved at the end of the year 2003. This Agreement established rules also referring to the temporary limited free movement of natural persons supplying services. However, as explained by Modolo (2015, p. 583), the Agreement used to refer to people from any of MERCOSUL’s Member States who were exercising highly qualified and specific professions and were allowed to stay 2 years in the territory of the Member State.85 We must agree with the author when she affirms that the population referred to in both the Protocol and the Agreement does not represent a significant number, adding the fact that it is neither rare nor difficult for workers with this profile to acquire a working visa. Another example of MERCOSUL’s engagement on migration issues over the years is the MERCOSUL Forum for Political Consultation and Agreement, which engaged itself on the creation of an Ad Hoc Group on Border Integration. This Group aimed at promoting the integration of the border regions in order to improve the life of border residents. The Forum suggested the MERCOSUL Provisional Travel Document,86 which should be issued by Member States’ representations abroad so that MERCOSUL citizens are allowed to return to their country of origin when their State of origin does not have a consular (or any diplomatic) representation capable of issuing the National Travel Document in the country the MERCOSUL citizen finds him/herself at that moment (Santestevan 2007, p. 374). In 2004, the decision No. 38 of the Common Market Council approved the provisional travel document.87 However, according to Argentinian National Migration Office, the decision mentioned has been approved but has not yet entered into force for MERCOSUL Member States.88 In our opinion, the existence of a temporary travel 83

The Protocol is available via http://investmentpolicyhub.unctad.org/Download/TreatyFile/2463. Annexes on Financial Services, Annex on Land and Water Transport, Annex on Air Transport Services. 85 Such as: managers and executive directors, business administrators, legal representatives, scientists, researchers, professors, artists, sportsmen, journalists, highly qualified technicians, higher education specialists and professionals. 86 Documento de Viaje Provisorio MERCOSUR or Documento de Viagem Provisório do MERCOSUL. 87 MERCOSUL/CMC/DEC N
38/04. 88 According to search on the CMC decision No. 38/04 entered at https://www.dnm.gov.ar/extranet/ infomig_new/index.php. See also: Ventura et al. (2012, p. 57). 84

4.3 The Legal Framework of Migration in MERCOSUL

111

document which could be issued by all MERCOSUL Member States would mean not only a step forward to the creation of a MERCOSUL Citizenship (because of the reciprocal support given by MERCOSUL Member States to the individuals), but also a facilitated free movement of people in the region. Recent research supported by the Brazilian Ministry of Justice (2015, p. 34) and conducted by Professor Liliana Jubilut mapped twenty-eight legal documents of MERCOSUL that address to migration issues. In addition to those, Jubilut’s research team collected five other declarations dealing with refuge, human trafficking and establishing migratory principles. The study concluded that there is a real interest in MERCOSUL in advancing the adoption of a common migration policy and in facilitating human mobility among its Member States, which can be proved by the fact that there is a considerable number of agreements that have been adopted concerning this issue. In the following lines, we will comment some of the most relevant norms considered by this study. One of the most relevant legal provisions presented by the research team that supports the free movement of people within the MERCOSUL area is the Agreement on Residence for Nationals of the State Parties of MERCOSUL and Bolivia and Chile (Acordo sobre Residência para Nacionais dos Estados Partes do Mercado Comum do Sul – Mercosul, Bolívia e Chile), herein referred as Residence Agreement.89 The agreement was signed in 2002 during the XXIII Meeting of the Common Market Council90 and allows the issuing of a temporary and/or permanent visa for MERCOSUL citizens and Associated States. The agreement allows that nationals of all MERCOSUL Member States and of MERCOSUL’s Associated States have the right to establish their residence in the territory of any signatory State of the agreement (Ribeiro and Simoni 2015, p. 270). These people may not only reside, but also work for a period of 2 years in a host State. The right to work can be exercised as self-employment or the immigrants can be employed by a third party, working in the same conditions and with the same rights as nationals from the host country do.91 In Brazil, for example, the self-employed people, during these

89 Internalized by Brazil in 2009, under Decreto No. 6.975, from 7 October 2009, available via http://www.planalto.gov.br/ccivil_03/_ato2007-2010/2009/decreto/d6975.htm. 90 It is important to mention that, during the same meeting of the Common Market Council, it was also approved the Agreement on Residence for Nationals of the State Parties of MERCOSUL (Acordo sobre Residência para Nacionais dos Estados Partes do MERCOSUL), which entered into force on 6 December 2002 within MERCOSUL State Parties. This Agreement was also internalized under Brazilian law under Decreto No. 6.964, from 29 September 2009, available via http://www. planalto.gov.br/ccivil_03/_Ato2007-2010/2009/Decreto/D6964.htm. The Agreement on Residence for Nationals of the State Parties of MERCOSUL includes, as its names indicates, the very same conditions on residence, but exclusively to MERCOSUL’s State Parties. Because of this similarity, we decide to refer to and analyze the text of the Agreement on Residence for Nationals of the State Parties of MERCOSUL and Bolivia and Chile only, as it includes more countries even though both of the agreements are part of Brazilian law. 91 See Decreto n
6.975, from 7 Oct 2009, art. 8 (2).

112

4

The Legal Framework of Migration in Brazil and in MERCOSUL

2 years, might even register their companies or might register themselves as individual businesspersons.92 According to the Residence Agreement, this temporary residence registry of 2 years can be transformed into a permanent one, once the immigrant presents specific documents (provided by art. 5 of the Agreement) 90 (nighty) days prior to the expiration of the temporary registry. MERCOSUL’s Residence Agreement also prescribes, in its article 9,93 the rights of MERCOSUL immigrants and their families within any of the State Parties. These are: civil rights; right to family reunification (when family members do not have any of the nationalities of MERCOSUL’s Member States or of MERCOSUL’s Associated States); as well as the same labor standards and labor law equality between nationals and immigrants (especially referring to remuneration, working conditions, and social security). The same article 9 also includes the commitment between the State Parties for the drafting of social security agreements as well as the facilities immigrants of the State Parties

92 According to Normative Instruction No. 111 from 1 Feb 2010 of the National Department of Commercial Registration (DNRC—Departamento Nacional de Registro do Comércio), a department of the Ministry of Industry, Foreign Trade and Services. See: Ventura et al. (2012, pp. 61–62). 93 Artigo 9 DIREITO DOS IMIGRANTES E DOS MEMBROS DE SUAS FAMÍLIAS 1. IGUALDADE DE DIREITOS CIVIS: Os nacionais das Partes e suas famílias, que houverem obtido residência, nos termos do presente Acordo, gozarão dos mesmos direitos e liberdades civis, sociais, culturais e econômicas dos nacionais do país de recepção, em particular o direito a trabalhar e exercer toda atividade lícita, nas condições que dispõem as leis; peticionar às autoridades; entrar, permanecer, transitar e sair do território das Partes; associar-se para fins lícitos e professar livremente seu culto, conforme as leis que regulamentam seu exercício. 2. REUNIÃO FAMILIAR: Aos membros da família que não tenham a nacionalidade de um dos Estados Partes, será concedida uma autorização de residência de idêntica vigência a da pessoa da qual dependam, sempre e quando apresentem a documentação que estabelece o artigo 3o e não possuam impedimentos. Se, por sua nacionalidade, os membros da família necessitarem de vistos para ingressar no país, deverão tramitar a residência ante a autoridade consular, salvo quando, nos termos das normas internas do país de recepção, este último requisito não seja necessário. 3. IGUALDADE DE TRATAMENTO COM OS NACIONAIS: Os imigrantes gozarão, no território das Partes, de tratamento não menos favorável do que recebem os nacionais do país de recepção, no que concerne à aplicação da legislação trabalhista, especialmente em matéria de remuneração, condições de trabalho e seguro social. 4. COMPROMISSO EM MATÉRIA PREVIDÊNCIÁRIA: As partes analizarão (sic) a exequibilidade de firmar acordos de reciprocidade em matéria previdenciária (sic). 5. DIREITO DE TRANSFERIR RECURSOS: Os imigrantes das Partes terão direito a transferir livremente, ao seu país de origem, sua renda e suas economias pessoais, em particular os valores necessários ao sustento de seus familiares, em conformidade com as normativas e legislação interna de cada uma das Partes. 6. DIREITO DOS FILHOS DOS IMIGRANTES: Os filhos dos imigrantes, que houverem nascido no território de uma das Partes, terão direito a ter um nome, ao registro de seu nascimento e a ter uma nacionalidade, em conformidade com as respectivas legislações internas. Os filhos dos imigrantes gozarão, no território das Partes, do direito fundamental de acesso à educação em condições de igualdade com os nacionais do país de recepção. O acesso às instituições de ensino pré-escolar ou às escolas públicas não poderá ser negado ou limitar-se a circunstancial situação irregular de permanência dos pais.

4.3 The Legal Framework of Migration in MERCOSUL

113

should have when remitting abroad, in accordance with the law of each State Party. Another relevant aspect of this article refers to the immigrants’ children. When in the territory of the State Parties, they are entitled to the right to education, under the same conditions as nationals of the receiving State. The access to preschool or to public education institutions shall not be denied, or should not depend on the irregular or illegal status of the children’s parents inside the territory of a State Party. MERCOSUL’s Residence Agreement can be considered a milestone for the integration of MERCOSUL’s Member States and Associated States, facilitating the life of the nationals of its ten Signatory States, comprising around 400 millions of people (Moura 2015, p. 632). For Arcarazo, the Residence Agreement “has transformed the migration regime for South Americans” (Arcarazo 2015b, p. 217) and, from Margheritis’ perspective, the Residence Agreement “was a turning point in the harmonisation of migration policies”, and shows MERCOSUL’s intentions “to redirect the integration process towards placing a strong emphasis on social issues as a remedy for the ‘excesses’ of the previous market-centred approach” (Margheritis 2015, p. 59). From a Brazilian migration law perspective,94 for instance, the Residence Agreement, in force in the country since 2009, relieved MERCOSUL immigrants from registering at CNIg (Conselho Nacional de Imigração—National Immigration Council) (Ribeiro and Simoni 2015, p. 270), which is the national body responsible for all immigrants’ processes that are not those related to the granting of a refugee status. In Brazil, when referring to the MERCOSUL’s Residence Agreement cases, the application for a temporary residence registration is either processed by the Federal Police Office in Brazil or by the Brazilian consulate located in one of the contracting States. Also, the Federal Police Office is the authority which is responsible for processing the applications for the transformation of the temporary residence registry in accordance with the Residence Agreement into a permanent residence registry.95 Besides the Residence Agreement, one can mention the Visa Exemption Agreement (Acordo sobre isenção de vistos entre os Estados-partes do MERCOSUL - DEC. N
48/00),96 signed in 2000, which aims at facilitating the temporary movement of persons of MERCOSUL who provide services in the region (Camargo 2010, pp. 503–504). Workers of any of the State Parties of the Agreement may stay without a visa in the territory of any State Party up to ninety (90) calendar days (extendable for more 90 days), within the limit of one hundred and eighty (180) days

94 Due to the scope of this work, analyses based on MERCOSUL’s legal provisions on migration will solely refer to the consequences and developments in Brazil’s internal legal order. 95 For more information on the process see the website of Brazil’s Federal Police Office at http:// www.pf.gov.br/servicos-pf/imigracao/pedido-de-permanencia/pedido-de-transformacao-acordomercosul (for the permanent registry) and at http://www.pf.gov.br/servicos-pf/imigracao/cedula-deidentidade-de-estrangeiro/registro-temporario-acordo-mercosul-e-associados (for the temporary one). 96 The Agreement is available via http://www.mercosur.int/msweb/portal%20intermediario/ Normas/normas_web/Decisiones/PT/Dec_048_000_Acordo%20Isen%C3%A7%C3%A3o%20de %20Vistos_Ata%202_00.PDF. As of February 2020, the Agreement has not yet entered into force.

114

4

The Legal Framework of Migration in Brazil and in MERCOSUL

per year (both periods will be counted from the first entry into the State Party’s territory). This agreement, however, had its application limited to a certain category of migrant workers: only artists, professors, scientists, athletes, journalists, and specialized professionals and technicians are covered by the special visa determination. Therefore, the idea of free movement of people in the region has not been guaranteed by this agreement; this lets Migration issues depending on internal legal standards of each of the State Parties of the Agreement (Moura 2015, p. 635). In Margheritis opinion, not only the Visa Exemption agreement, but also the Agreement for Creation of a MERCOSUL Visa of 2003, as well as the 2004 Agreement to Facilitate Entrepreneurial Activities within the region, in the same sense indicate MERCOSUL’s lack of interest in an open-doors policy, reflecting “a persistent concern with controlling human mobility and preserving governments’ capacities to decide selectively on the movement and settlement of people across borders” (Margheritis 2015, p. 61). There are other instruments mapped by the abovementioned research group (Brazil 2015, p. 172) which are also important to mention in the present work.97 The first one is MERCOSUL’s Multilateral Agreement on Social Security, approved by the Common Market Group No. 19/199798 (Acordo multilateral de seguridade social do Mercado Comum do Sul e seu Regulamento administrativo)99 which entered into force within MERCOSUL Member States in June 2005. According to Margheritis, this agreement “paved the way for further harmonisation” once it “established common norms to guarantee the right to social security benefits for Mercosur nationals residing and working in a member state other than their place of origin” (Margheritis 2015, p. 59). In Cynthia Carneiro’s opinion (2015, p. 75), the social security agreement was the first MERCOSUL treaty to approach the free movement of workers within the region. According to the author, the agreement guarantees to all workers and their families access to rights related to health care and social security which are in force in any of MERCOSUL’s Member States in which these workers are currently working, or in which they have already worked for more than 12 (twelve) years, under the terms of articles 2 and 7 of the agreement. The contributions paid by MERCOSUL workers during less than 12 years shall not be considered. This means that the time worked and the amount paid in terms of social security contributions will be considered in the retirement calculation formula and that the retirement can be applied in any of MERCOSUL Member States. The agreement also provides other social security benefits, such as sick pays and disability retirement. In order to administrate the rights provided by this agreement, it was thought about a managing body of the social security system, which is the

97 Relevant not only in terms of thematic, but also because they either have been approved by Brazilian Legislative Power or because they have in fact entered into force under Brazilian law. 98 MERCOSUL/CMC/DEC No. 19/97. 99 The multilateral agreement has been internalized under Brazilian law under Decreto No. 5722 of 13 March 2006, available via http://www.planalto.gov.br/ccivil_03/_ato2004-2006/2006/decreto/ d5722.htm.

4.3 The Legal Framework of Migration in MERCOSUL

115

Interamerican Organization of Social Security (Organização Interamericana de Seguridade Social—OISS), and also about a body which is entitled not only to coordinate the retirement processes within the Member States, but also to standardize the norms and proceedings under the light of the agreement, which is the Permanent Multilateral Commission of the Social Security Agreement (Comissão Multilateral Permanente do Acordo de Seguridade Social—Compass) (Carneiro 2015, p. 76). The research group also makes reference to the Resolution on Valid Documents that Allow the Free Movement of People within MERCOSUL (Resolução sobre documentos de cada Estado-parte que habilitam o trânsito de pessoas no MERCOSUL100), which has been revoked by Resolution GMC No. 31/08 due to Decision CMC No. 18/08. The 2008 Decision approved the Agreement on Travel Documents for MERCOSUL Member States and Associated States (Acordo sobre Documentos de Viagem dos Estados Partes do MERCOSUL e Estados Associados), that specified for each of the 10 (ten)101 Signatory States which identification documents are accepted for the sake of the free movement of people in the region, so that no visa is necessary for moving between any of the Signatory States (Modolo 2010, p. 43). More recently, though, in 2015, Decision CMC No. 18/08 was derogated by Decision CMC No. 46/2015, called Agreement on Travel Document and Return Document for MERCOSUL Member States and Associated States (Acordo sobre Documentos de Viagem e de Retorno dos Estados Partes do MERCOSUL e Estados Associados102). According to MERCOSUL’s directory,103 the Agreement from 2015 has been in force since 2016 for all MERCOSUL Member States—in fact, according to Article 5 of Decision CMC No. 46/2015, this Decision does not need to be incorporated to each one of MERCOSUL Member States’ law, once it provides for aspects related to the organization and functioning of MERCOSUL system.104

100

MERCOSUL/GMC/RES. No. 75/96. Namely: Argentina, Brazil, Paraguay, Uruguay, Bolivia, Chile, Colombia, Ecuador, Peru and Venezuela. The Decision CMC No. 18/08 is available via http://www.mercosur.int/innovaportal/v/ 584/2/innova.front/decisiones-2008. 102 Available via http://gd.mercosur.int/SAM%5CGestDoc%5Cpubweb.nsf/ F2045FA2B0A4C9310325823C00528D4F/$File/DEC_046-2015_ES_ AcuerdoDocumentoViajeRetorno.pdf. 103 Available via http://gd.mercosur.int/SAM/GestDoc/pubweb.nsf/Normativa?ReadForm& lang¼ESP&id¼216553AD259722CA03257F240061D461#. 104 Succinctly, according to the POP, in its article 42, the norms derived from MERCOSUL bodies (i.e., GMC, CMC, and CCM) are binding and shall, when necessary, be incorporated into Member States’ legal order according to their internal law-making process. The expression “when necessary” presented by POP’s wording caused innumerous discussions. In this context, Decision CMC No. 23/00 has been created in order to clarify what has been stated by the POP. According to article 5 of this Decision, the norms emanated from the abovementioned bodies do not need to go through law-making processes in each of MERCOSUL’s Member States when (i) the Member States conjointly understand that the content of a specific norm is related to the internal functioning of MERCOSUL. In this case, the MERCOSUL norms will enter into force by the time of its 101

116

4

The Legal Framework of Migration in Brazil and in MERCOSUL

This Agreement recognizes some identification documents (annex 1 of the agreement) issued by Member States and Associated States as valid travel documents within MERCOSUL territory and within the territory of Associated States, and it is applicable not only for nationals of the Signatory States, but also for people who are regular residents in any of MERCOSUL Members States or Associated States (article 1). Another point covered by the Agreement on Travel Document refers to the so-called return documents. These are temporary documents that are provided by the diplomatic representation of the Member States and Associated States when a person loses the original travel document (or it is stolen or misplaced). In this case, the Signatory States are obliged to recognized the return documents described in the agreement (annex 2 of the agreement) with the condition that the return document is used for returning the person to the country of her/his nationality. A relevant point of the agreement is the possibility that third-country nationals have to use one of the identification documents listed in the agreement, provided that, because of his/her nationality, a visa is not required to enter the territory of that specific MERCOSUL Member State or Associated State. If this is the case, the thirdcountry national will have to present his/her passport with the respective required visa (article 2). We could state that this aspect of the Agreement reveals another example of a timid approach of MERCOSUL in relation to third country nationals’ rights of freely moving within the region. The abovementioned study supported by the Ministry of Justice also refers to the Agreement on Internal Migratory Regularization of MERCOSUL Citizens (Acordo sobre regularização migratória interna de cidadãos do MERCOSUL), as well as to the Agreement on Internal Migratory Regularization of MERCOSUL, Bolivian and Chilean Citizens (Acordo sobre regularização migratória interna de cidadãos do MERCOSUL, Bolívia e Chile).105 These agreements made the migratory regularization possible to all people holding the nationality from Argentina, Bolivia, Chile, Paraguay and Uruguay within Brazilian territory: it became possible for individuals of these countries to apply for a temporary or permanent residence permit at the closest Federal Police Office. It is important to mention that the right to migratory regularization did not depend on the person’s migratory status: even if the individual illegally entered the country, the regularization would still be possible. These regularization agreements, however, did not enter into force as a MERCOSUL norm and its content was impaired by the approval of the Residence Agreement, which amplified the conditions for the regularization of a person’s migratory status (Carneiro 2015, p. 76).

approval; (ii) there is already a national law in force, which contemplates the exact same terms of the MERCOSUL norm. The internalization of MERCOSUL’s norms in the Member States’ legal order is an often discussed topic which involves not only legal, but also political issues, requiring, therefore, deeper analysis, which is not in the scope of this work. For more information on MERCOSUL’s rules for incorporating/internalizing MERCOSUL law, see: Rocha (2011) and Ventura et al. (2012). 105 MERCOSUL/CMC/DEC. No. 28/02.

4.3 The Legal Framework of Migration in MERCOSUL

117

It is important to state that many of the already mentioned agreements and norms have been declared as superseded by the Ministers of Justice and by the Ministers of the Interior in the occasion of the XXVIII Meeting of the Ministers of the Interior in November 2010.106 During this meeting, the authorities have approved the “Brasília Declaration on the Entry into Force of the Migration-Related Norms originated from the Meetings of the Ministers of the Interior of MERCOSUL and Associated States” (free translation from Declaração de Brasília sobre Entrada em Vigência das Normas Migratórias Emanadas das Reuniões de Ministros do Interior do MERCOSUL e Estados Associados). As an initiative from the Specialized Forum on Migration (Foro Especializado Migratório—FEM),107 the authorities, during this meeting, signed this declaration with the intention of accelerating the process of approval, ratification and implementation of some of the migration agreements developed by MERCOSUL’s Meetings of Ministers of Interior. At the same time, though, according to the Brasília Declaration, the authorities have also decided that the proceedings of some agreements on migration should not move forward, and should not, therefore, be implemented, namely: the Visa Exemption Agreement; the Agreement for the Creation of a MERCOSUL Visa in Cooperation with Bolivia and Chile; and the Agreement on the Regularization of Internal Migratory Movements within MERCOSUL, Bolivia and Chile.108 After showing that the MERCOSUL is struggling for a common policy for its citizens to move freely within its territory, it is not surprising that its migration policies for third country nationals have a timid approach. According to Modolo (2015, p. 584), every aspect related to a third country national’s stay in or entry into the MERCOSUL territory is still determined by the national law of each MERCOSUL Member State. At present, the legal rules for admission into the territory and the conditions of residence are determined by each country without any influence or any conjoint decision of MERCOSUL. Undoubtedly, the adoption of agreements such as the Residence Agreement deals with third country nationals by the way it excludes them when not referring to them as people who could apply

106 MERCOSUL/RMI/ATA N
2/10, available via https://gestorweb.mercosur.int/files/ 564e87c9c9344903fc3df798. 107 The Specialized Forum on Migration (Foro Especializado Migratório do Mercosul e Estados Associados—FEM) is an advisory body composed by the Ministers of Interior and by the Ministers of Social Development of MERCOSUL’s Member States which played a relevant role on the drafting of the Residence Agreement and all its correlate agreements. The FEM was founded during the XIV Meeting of Ministers of the Interior, which took place in Montevideo in 2003. Therefore, the FEM is subjected to the Meetings of Internal Affairs Ministers, which forward its discussed topics on migration to the CMC, which might or not adopt the decisions of the Ministers. Since 2004, FEM has been working on MERCOSUL’s institutional memory on migration matters and offers free access to many relevant migration-related topics at http://www.migraciones.gov.ar/foro_ migratorio/. For more information on FEM, see: Carneiro (2015, pp. 72–73). 108 The Brasília Declaration corresponds to Annex IV of MERCOSUR/RMI/ATA N
2/10, and is available via https://gestorweb.mercosur.int/files/564e87cac9344903fc3df7b4.

118

4

The Legal Framework of Migration in Brazil and in MERCOSUL

for a residence registry. We agree with Modolo when she argues that the granting of common rights to MERCOSUL citizens109 reveals the suppression of rights of entry and settlement in relation to third country nationals (Modolo 2015, p. 585), which is the reason why the present work also engages into discussing a blueprint for the treatment of third country nationals under MERCOSUL law. In December 2014, MERCOSUL has signed a memorandum of understandings with the International Organization for Migration, in which both of the organizations commit themselves not only to the movement of people within the region and migration in the borders, but also to subjects such as: migration and development; migration and gender; the protection of migrants and their human rights; and, inter alia, mixed migratory flows.110 This engagement of MERCOSUL, by cooperating in an international level, reveals its intention of acting in the name of the protection and the humanization of the movement of people on a global level.

4.4

Preliminary Conclusions

This chapter presented and analyzed Brazil’s and MERCOSUL’s legal provisions on migration. Even though, under the scope of this work, we do not intend to comment on each of Brazil’s new migration law’s provisions, it is important to set out some considerations on the developments of the law. Brazil is still adapting to its migration law which entered into force in November 2017, and is still being analyzed and interpreted by academia. The new categorizations of migrants presented by the law—as, for example, the definitions given to border migrants and emigrants— provide more rights and protection for these people, as it could be observed in the beginning of this chapter. Also, the principles and guarantees provided by the law positively reflect the intention of the legislative authority in giving migrants a human rights-based protection. For the first time, a Brazilian legal provision dedicated to migration adopted principles such as humanitarian protection; a guarantee of family reunion; rejection of and prevention from xenophobia, racism and any other ways of discrimination; as well as nondiscrimination on the grounds of the criteria or of the proceedings that have been considered when admitting a person into Brazilian territory. Nevertheless, we have also observed that Decree No. 9,199/2017 undermines many of the new law’s provisions. Not only because the Decree limits some of the new law’s provisions to “national interest”, but also because it allows the Executive Power to decide on some of migrants’ rights (such as the maximum period of stay in the country, which might vary from person to person when it comes to the granting

For practical reasons, during this work, we will refer to the expression “MERCOSUL citizens” even though it has been proved that the creation of such a citizenship is still being developed. 110 Available via http://www.mercosur.int/innovaportal/file/6335/1/mou-oim-mercosur-espfirmado-oim.pdf. 109

4.4 Preliminary Conclusions

119

of a temporary visa). The compulsory withdrawal of migrants in Brazil has also undergone some changes since the entry into force of the new law. We could cite as a positive example the provisions regarding repatriation in the law, which gives the immigrant/visitor greater legal security when trying to enter Brazilian territory. Even though the refusal of entry of a person into a state’s territory has always been possible in Brazil (in accordance with the international law principle that no state is obliged to admit foreigners in its territory), the proceedings of the refusal of entry were not expressed under the terms of the revoked Foreigners’ Statute. Also, in the light of the new law, expulsion cases are motivated by a final criminal conviction to which the foreigner/immigrant is subjected rather than by the possible harmfulness of the foreigner/immigrant, as provided by the revoked statute. Other developments of the law could also be cited, including the fact that, as a rule, the current law does not allow the imprisonment of immigrants who are undergoing deportation proceedings, which demonstrates a humanized approach of Brazil’s migration policies. One of the first important points to mention on MERCOSUL’s migration law and policy approach is that, during the transition period for the formation of the common market, migration was necessarily attached to the free movement of capital, goods, and services in the region. After the Protocol of Ouro Preto, migration issues still had exclusively a labor migration character, disregarding any international migration law aspect human mobility requires. In fact, MERCOSUL showed a free movement of citizens orientation rather than an international migration law approach. It was also seen during this chapter that MERCOSUL’s migration laws, norms, decisions, or any other statement that refers to migration or free movement of people in the region reveals an unstable character, since it not only corresponds to the will of a specific Member State acting in the name of a specific government plan, but also because the content of many of the documents analyzed in this work lacks profundity. Several decisions on migration, especially the CMC and GMC decisions, acknowledge the necessity of a migration legal framework for MERCOSUL, often approaching a far too wide range of subjects on the same document. A deep discussion of these issues or the elaboration of a plan of action remain pending. In addition to this, it appears that the competence to legislate on migration issues within MERCOSUL’s structure is still uncertain: travel documents issues, for example, have been firstly regulated by Resolution GMC No. 75/96, which has been revoked by Resolution GMC No. 31/08 due to Decision CMC No. 18/08. This last decision from 2008 was also derogated by Decision CMC No. 46/15, from which we can conclude that there is no clear division of competence between GMC and CMC. The importance given to the migration and movement of people norms depends on the MERCOSUL body which is involved in the deliberation of the norm. The main body for discussions on migration nowadays is FEM, which is subjected to the Meetings of Internal Affairs Ministers (RMI), as it is composed by them. Once the projects are discussed within the RMI, their suggestions might be sent to the CMC, which might or not adopt the decisions of the Ministers. This is the case, for example, of the Agreement on Residence for Nationals of the State Parties of MERCOSUL and Associated States, which has been endorsed by the CMC and received the status of an agreement. However, we have also seen other instruments,

120

4

The Legal Framework of Migration in Brazil and in MERCOSUL

as for example the minutes of the Meetings of Internal Affairs Ministers (RMI), which have even declared some Agreements of the CMC as outdated and not worthy of further discussions and developments, such as the “Brasília Declaration on the Entry into Force of the Migration-Related Norms originated from the Meetings of the Ministers of the Interior of MERCOSUL and Associated States”. As already explained in the course of this chapter, these minutes and declarations (also including the declarations of the Presidents and not only of the Ministers) do not have representation under the terms of the POP ( i.e., they do not figure as official legal source of MERCOSUL law). We suggest (based on the Asunción Treaty and on the POP terms) that any sort of migration-related norms should exclusively originate from MERCOSUL bodies that have a decision-making capacity, such as the CMC, which is responsible for the accomplishment of the goals provided by the Asunción Treaty, and that produces the so-called “Decisions”, which are binding instruments to the Member States. We can therefore infer that, because the Asunción Treaty does not explicitly state that the Common Market of the South Cone also aims at the movement of people, MERCOSUL does not insert migration or free movement of people issues as one of the points to be enforced by the CMC for the sake of turning MERCOSUL into an effective common market. It is also important to mention how difficult it is to identify not only the validity of the norms within the MERCOSUL, but also the implementation of the norms into the Brazilian legal system. Many of the MERCOSUL sources are outdated (and we refer specifically to the database available on the internet), and no organized, clear and structured repository of legal and/or administrative instruments is offered. There are no clear rules, for example, on the necessity of internalizing a Decision of the CMC in order to make it valid for a specific Member State (even though these decisions are binding). There is, in fact, a repository of MERCOSUL Treaties available on the website of the Ministry of Foreign Affairs of Paraguay.111 However, the list of MERCOSUL Treaties not always provides an accurate and correct list with information on the legal norms which made a specific MERCOSUL instrument enter into force. This is the case, for example, of the Agreement on Residence for Nationals of the State Parties of MERCOSUL: while it has been internalized to Brazilian legal system in 2009, the repository of MERCOSUL makes reference to its approval by the Brazilian Senate (through Decreto Legislativo No. 210/2004), and does not mention that the referred agreement entered into force in Brazil through Decreto No. 6.964, from 29 September 2009. Therefore, researchers have to take into consideration not only inaccurate information provided by MERCOSUL’s official sources, but most consult various academic works in order to verify the status quo of MERCOSUL’s and its State Parties’ legal texts. One last relevant point regarding MERCOSUL’s migration policies that should be mentioned is MERCOSUL’s lack of definition on citizenship. As debated during

111

A list of all MERCOSUL treaties and acts is available via http://www.mre.gov.py/tratados/ public_web/ConsultaMercosur.aspx.

References

121

this chapter, the project of MERCOSUL’s Statute on Citizenship would have to be strengthened as a way of enabling the identification of MERCOSUL’s citizens as such. As previously stated, when the MERCOSUL citizen identifies his/her rights and obligations under the context of an intergovernmental entity (including the right to freely move within the region, labor rights, education, among others), he/she will be able to understand the concept and the meaning behind the idea of a regional citizenship. This would not only facilitate the mobility of MERCOSUL citizens within the region, but would also be the first step for developing a migration law and policy for third country nationals.

References Albuquerque JLCA (2009) A Dinâmica das Fronteiras: deslocamento e circulação dos “brasiguaios” entre os limites nacionais. Horizontes Antropológicos 15(31):137–166 Amaral APM, Costa LR (2017) A (não) criminalização das migrações e políticas migratórias no Brasil: do Estatuto do Estrangeiro à nova Lei de Migração. Revista Justiça do Direito 31 (2):208–228 Anderson B, Ruhs M (2008) The origins and functions of illegality in migrant labour markets: an analysis of migrants, employers and the state in the UK. Working Paper No 30a. Centre on Policy and Society, University of Oxford, Oxford Anderson B, Ruhs M (2010) Researching illegality and labour migration. Popul Space Place 16 (3):175–179 Araya MC (1998) El Derecho de Sociedades en el MERCOSUR. In: San Pedro LAV (ed) MERCOSUR y la Union Europea: dos modelos de integración económica. Lex Nova, Valladolid, pp 141–170 Arcarazo DA (2015b) Toward a South American citizenship? The development of a new postnational form of membership in the region. J Int Aff 68(2):213–221 Armenta A (2017) Racializing crimmigration: structural racism, colorblindness, and the institutional production of immigrant criminality. Sociol Race Ethn 3(1):82–95 Baquero-Herrera M (2005) Open regionalism in Latin America: an appraisal. Law Bus Rev Am 11 (2):139–183 Barral W, Perrone N (2007) El Parlamento del Mercosur. ¿Un avance hacia la institucionalización? Revista Agenda Internacional XIV(25):237–247 Basedow J (2001) Der Mercosur als Integrationsmodell. In: Basedow J, Samtleben J (eds) Wirtschaftsrecht des MERCOSUR – Horizont 2000. Nomos Verlagsgesellschaft, BadenBaden, pp 9–28 Bichara J-P (2017) O tratamento do apátrida na nova lei de migração: Entre avanços e retrocessos. Revista de Direito Internacional 14(2):236–252 Bloch A, Chimienti M (2011) Irregular migration in a globalizing world. Ethn Racial Stud 34 (8):1271–1285 Brandalise C (2013) O conceito de América Latina: hispano-americanos e a panlatinidade europeia. Cuadernos del CILHA 14(1):74–106. Available via http://www.scielo.org.ar/scielo.php? script¼sci_arttext&pid¼S1852-96152013000100006&lng¼es&nrm¼iso Brazil, Ministério da Justiça, Secretaria de Assuntos Legislativos (2015) Migrantes, apátridas e refugiados: subsídios para o aperfeiçoamento de acesso a serviços, direitos e políticas públicas no Brasil. Ministério da Justiça, Secretaria de Assuntos Legislativos (SAL), IPEA, Brasília Cahali YS (2011) Estatuto do Estrangeiro. Editora Revista dos Tribunais, São Paulo Camargo S (2010) O Processo de Integração Regional: fronteiras abertas para os trabalhadores do Mercosul. Revista Contexto Internacional 32(2):489–517

122

4

The Legal Framework of Migration in Brazil and in MERCOSUL

Campa JALV (2014) Unión Europea e Integración Latinoamericana. H. Cámara de Diputados, LXII Legislatura and Miguel Ángel Porrúa, Ciudad de México Carneiro CS (2015) Os Acordos de Residência do Mercosul Frente ao Estatuto do Estrangeiro Vigente no Brasil: obstáculos estabelecidos à sua efetividade sob a perspectiva do imigrante. In: Silva KS, Castrillon COG (eds) III Encontro de Internacionalização do CONPEDI / Universidad Complutense de Madrid, vol 16. Direito Internacional/Direito Comunitário Europeu. Ediciones Laborum, Madrid, pp 64–95 Carneiro PHS (2007) Uma avaliação crítica do processo de integração do Mercosul, à luz dos seus antecedentes, instrumentos e relações externas, em especial com a União Europeia. Universidade de Compostela (Servizo de Publicacións e Intercambio Científico), Santiago de Compostela Carvalho KG (2007) Direito Constitucional, Teoria do Estado e da Constituição, Direito constitucional positivo. Del Rey, Belo Horizonte Casella PB (2003) The common market of the South (MERCOSUR): models and qualitative mutations for consolidating an integrated economic area. Ann Surv Int Comp Law 9(1):1–18 Castro ELF, Ribeiro MRS (2018) Irregular Immigration in the Light of Brazil’s New Migration Law: the veto to article 118. In: Baeninger R, Canales A (coords), Silva JCJ, Vedovato LR, Menezes DN, Fernandes D, Silva S, Peres R, Anunciação C, Domeniconi J (eds) Migrações Fronteiriças. Núcleo de Estudos de População “Elza Berquó”, Nepo/Unicamp, Campinas, pp 634–644 Castro ELF, Vasconcelos RC (2017) Eine ökonomische Analyse des Migrationsrechts: Wie effektiv ist die Förderung von Sozialrechten für Zuwanderer in Brasilien. Revista da Faculdade de Direito – UFPR 62(2):107–129 Cohen J, Sirkeci I (2011) Cultures of migration: the global nature of contemporary mobility. University of Texas Press, Austin Dabène O (2009) The politics of regional integration in Latin America: theoretical and comparative explorations. Palgrave MacMillan, New York Diniz DCB (2007) O conceito de América Latina: uma visão francesa. Caligrama: Revista de Estudos Românicos 12:129–148 Dolinger J, Tiburcio C (2016) Direito Internacional Privado – Parte Geral e Processo Internacional. Forense, Rio de Janeiro Düvell F (2011) Paths into irregularity: the legal and political construction of irregular migration. Eur J Migr Law 13:275–295 Fernandes CV, Silva JCJ (2013) Trânsito de trabalhadores e migrações: um estudo comparativo entre Mercosul e União Europeia. In: Gadelha RMAF (ed) Mercosul a Unasul – avanços do processo de integração. EDUC, São Paulo, pp 359–383 Ferrie JP, Hatton TJH (2015) Two centuries of international migration. In: Chiswik BR, Miller PW (eds) Handbook of the economics of international migration. Volume 1A the immigrants. Elsevier, Oxford, pp 53–88 Gagliano PS, Filho RP (2011) Novo curso de direito civil volume I – parte geral. Saraiva, São Paulo Gardini GL (2010) The origins of mercosur: democracy and regionalization in South America. Palgrave Macmillan, New York Gardini GL (2012) Latin America in the 21st century: nations, regionalism, globalization. Zed Books Ltd., New York Giupponi BO (2012) International law and sources of law in MERCOSUR: an analysis of a 20-year relationship. Leiden J Int Law 25:707–737 Giupponi MBO (2010) Sources of law in MERCOSUR. In: Franca Filho MT, Lixinski L, Giupponi MBO (eds) The law of MERCOSUR. Hart Publishing, Oxford, pp 57–77 Godoy GG (2011) O caso dos haitianos no Brasil e a via da proteção humanitária complementar. In: Ramos A, Rodrigues G, de Almeida GA (eds) 60 anos de ACNUR: perspectivas de futuro. Editora CL-A Cultural, São Paulo, pp 45–68 Jubilut LL (2006) Refugee law and protection in Brazil: a model in South America? J Refug Stud 19 (1):22–44

References

123

Kelsen H (1952) Principles of international law. Rinehart & Company Inc., New York Lagarde P (1989) La nationalité française. Dalloz, Paris Lambert P (2016) The myth of the good neighbour: Paraguay’s uneasy relationship with Brazil. Bull Latin Am Res 35(1):34–48 Lima D, Luz IC, Ramos R, Sampaio SMM (2009) The foreign national law in Brazil: legislation and comments. São Paulo, EMDOC Long K (2011) Refugees, repatriation and liberal citizenship. Hist Eur Ideas 37(2):232–241 Lopes CMS (2009) Direito de Imigração. O estatuto do Estrangeiro em uma Perspectiva de Direitos Humanos. Nuria Fabris Editora, Porto Alegre Maia Tavares S (2014) Da Insularidade Constitucional às Constelações Integracionistas: acquis communautaire da União Europeia e a normativa comunitária do MERCOSUL. Revista Eletrônica de Direito Internacional 13(2):1–52. Available via http://centrodireitointernacional. com.br/publicacoes/revista-eletronica/ Maia Tavares S (2015) Cidadania Pacha, Cidadania Terroir – Notas comparadas sobre o Cidadão da União Europeia, no MERCOSUL e o Direito da Integração no novo Constitucionalismo Latinoamericano. In: Tiburcio C, Menezes W, Vasconcelos R (eds) Panorama do Direito Internacional Privado Atual e outros Temas Contemporâneos – Festschrift ao Professor Jacob Dolinger. Arraes, Belo Horizonte, pp 459–484 Mansueti HR (2010) Circulation of workers in the law of MERCOSUR. In: Franca Filho MT, Lixinski L, Giupponi MBO (eds) The law of MERCOSUR. Hart Publishing, Oxford, pp 241–258 Margheritis A (2015) Mercosur’s post-neoliberal approach to migration: from workers’ mobility to regional citizenship. In: Cantor DJ, Freier LF, Gauci J-P (eds) A Liberal Tide? Immigration and asylum law and policy in Latin America. School of advanced study. University of London, London, pp 57–80 Margheritis A (2018) International migration in South America – emerging forms of governance. In: Riggirozzi P, Wylde C (eds) Handbook of South American governance. Routledge, London, pp 757–780 Mariano KP, Bressan RN, Luciano BT (2017) A comparative reassessment of regional parliaments in Latin America: Parlasur, Parlandino and Parlatino. Revista Brasileira de Política Internacional 60(1):1–18 Marques DHF, Rodrigues RN, Rezende DFA, Soares W, Vélez JM (2013) La circularidad de los “brasiguayos” en las fronteras de Paraguay y Brasil. Estudios Sociológicos 31(93):865–898 Massey H (2010) UNHCR and De Facto Statelessness. UNHCR, Geneva. Available via https:// www.unhcr.org/4bc2ddeb9.pdf Mazzuoli VO (2011) A questão do reconhecimento de títulos de mestrado e doutorado provenientes dos países do Mercosul. Pós - Revista do Programa de Pós-Graduação em Arquitetura e Urbanismo da FAUUSP 18(30):168–187 Mendes JSR (2016) ¿Puertas Abiertas? migrações internacionais, direito e integração na Comunidade Andina de Nações e no Mercosul. Caderno CRH 29(3):77–92 Modolo V (2010) La Movilidad Territorial en el Mercado Común Europeo y Mercosureño. In: Novick S (ed) Migraciones y Mercosur: una relación inconclusa. Catálogos, Buenos Aires, pp 29–50 Modolo V (2015) O MERCOSUL Importa. A Política Regional de Mobilidade Territorial. Contexto Internacional (PUC) 37(2):571–595. Available via http://www.scielo.br/scielo.php? script¼sci_arttext&pid¼S0102-85292015000200571&lng¼en&nrm¼iso Mondelli M (2018) Scaling up citizenship: the case of the statute of MERCOSUR citizenship. In: Riggirozzi P, Wylde C (eds) Handbook of South American Governance. Routledge, London, pp 781–808 Monte DS, Anastasia F (2017) Cláusula democrática do Mercosul: indefinição conceitual e uso estratégico. Revista de Sociologia e Política 25(62):11–36 Moraes ALZ (2016) Crimigração: a relação entre a política migratória e a política criminal no Brasil. IBCCRIM, São Paulo

124

4

The Legal Framework of Migration in Brazil and in MERCOSUL

Moura AB (2015) A criação de um espaço de livre residência no Mercosul sob a perspectiva teleológica da integração regional: aspectos normativos e sociais dos acordos de residência. Revista de Direito Internacional 12(2):630–648 Nicolao, J. (2015) Las migraciones en la agenda del MERCOSUR. El rol de Argentina en el Foro Especializado Migratorio. Revista Electrónica de Estudios Internacionales, 29:1–32 Nunes PHF (2017) Lei de migração: novo marco jurídico relativo ao fluxo transnacional de pessoas. Author’s Edition, Goiânia Peña IAS (2017) Ciudadanía del Mercosur: avances en su construcción y consolidación. Revista MERCOSUR de Políticas Sociales 1:13–34 Perruchoud R (2012) State sovereignty and freedom of movement. In: Opeskin B, Perruchoud R, Redpath-Cross J (eds) Foundations of international migration law. Cambridge University Press, Cambridge, pp 123–151 Popp K (2012) Regional processes, law and institutional developments on migration. In: Opeskin B, Perruchoud R, Redpath-Cross J (eds) Foundations of international migration law. Cambridge University Press, Cambridge, pp 366–389 Ramos AC (2013) O novo direito internacional privado e o conflito de fontes na cooperação jurídica internacional. Revista da Faculdade de Direito da Universidade de São Paulo 108:621–647 Ribeiro AL, Simoni RRR (2015) Contribuição do acordo de residência do MERCOSUL à proteção de imigrantes mercosulinos no Brasil. In: Redin G, Minchola LAB (eds) Imigrantes no Brasil: proteção dos direitos humanos e perspectivas político-jurídicas. Juruá, Curitiba, pp 269–278 Rivera S (2014) Latin American unification: a history of political and economic integration efforts. McFarland & Company Publishers, Jefferson Rocha MEGT (2011) A incorporação das normativas mercosulinas e as constituições dos estadospartes: o desafio das superações da normatividade estatal. Universitas Relações Internacionais 9 (1):1–37 Salim CA (1995) A Questão dos Brasiguaios e o MERCOSUL. In: Patarra NL (ed) Emigração e Imigração Internacional no Brasil contemporâneo. FNUAP, São Paulo, pp 144–159 Sánchez AC (2001) Semejanzas y diferencias: Comunidad Andina/Mercosur y relaciones entre ambos grupos de integración. Revista Espacio y Desarrollo 13:27–59 Santestevan AM (2007) Free movement regimes in South America: the experience of the MERCOSUR and the Andean community. In: Ryszard C, Perruchoud R, MacDonald E (eds) International migration law: developing paradigms and key challenges. T.M.C. Asser Press, The Hague, pp 363–386 Sassen S (1996) Losing control? Sovereignty in an age of globalization. Columbia University Press, New York Sibert M (1951) Traité de Droit International Public. Librairie Dalloz, Paris Sloboda PMP (2015) A legalidade da entrada da Venezuela no Mercosul. Anuario Mexicano de Derecho Internacional 15:701–706 Sosa AJ (2013) ¿Mercosur frente a la Unasur? In: Gadelha RMAF (ed) Mercosul a Unasul – Avanços do processo de integração. EDUC, São Paulo, pp 119–149 Stelges IK (2002) A Cidadania da União Europeia. Del Rey, Belo Horizonte, 2002 Stumpf J (2006) The crimmigration crisis immigrants, crime, and sovereign power. Am Univ Law Rev 56(2):367–419 Stumpf J (2013) The process is the punishment in crimmigration law. In: Aas KF, Bosworth M (eds) The borders of punishment – migration, citizenship, and social exclusion. Oxford University Press, Oxford, pp 58–75 Suñe N (2015) Principios de organización administrativa en la estructura institucional del MERCOSUR. Revista Digital de Derecho Administrativo 13:211–233 Thomas M (2017) Turning the comprehensive refugee response framework into reality. Forced Migr Rev 56:69–72 Tiburcio C, Albuquerque F (2015) Algumas reflexões sobre o Tratamento do Estrangeiro no Brasil. In: Tiburcio C, Vasconcelos R, Menezes W (eds) Panorama do Direito Internacional Privado

References

125

Atual e outros Temas Contemporâneos. Festschrift ao Professor Jacob Dolinger. Arraes, Belo Horizonte, pp 220–247 Tiburcio C, Barroso LR (2013) Direito Constitucional Internacional. Renovar, Rio de Janeiro United Nations (2014) Draft articles on the expulsion of aliens, with commentaries. Available via http://www.refworld.org/docid/5539ef8e4.html Uriarte OE (1997) Labour institutions and labour relations in Mercosur. International Labour Office Geneva. Mercosur: the impact of economic integration. A case study. Labour Edu 1997/4 (109):16–26 Varella MD, Oliveira CG, Oliveira MSC, Ligiero AP (2017) O caráter humanista da Lei de Migrações. Avanços da Lei n. 13.445/2017 e os desafios da regulamentação. Revista de Direito Internacional 14(2):253–266 Vasconcelos RC (2017) Regionalismo, multilateralismo, o MERCOSUL e a OMC: o rinoceronte do sul e a manada. Arraes Editores, Belo Horizonte Vasconcelos RC, Xavier Junior EC, Castro ELF (2018) Brazil’s migration law – original text in Portuguese and unofficial translation into English. Shaker Verlag, Aachen Venosa SS (2014) Direito Civil. Parte geral, vol I. Atlas, São Paulo Ventura D, Onuki J, Medeiros M et al (2012) Internalização das normas do MERCOSUL. Série Pensando o Direito, vol 45. Ministério da Justiça, Brasília Vigevani T, Ramanzini Júnior H (2013) O Mercosul e seu Parlamento: uma análise sobre a evolução do projeto de integração. In: Gadelha RMAF (ed) Mercosul a Unasul – avanços do processo de integração. EDUC, São Paulo, pp 197–219 Zelicovich J (2015) El MERCOSUR a 20 años del Protocolo de Ouro Preto: un balance de la dimensión comercial. Revista latinoamericana de desarrollo económico 24:97–120

Chapter 5

The Legal and Normative Framework on Migration in Germany and in the European Union

Following the structure and the scope of this work, this chapter will cover the freedom of movement in Germany and in the European Union, by analyzing mobility under these two legal frameworks as a person’s most basic human right. Indeed, based on the concepts presented by Longo (2013, p. 31), we intend to draw Germany’s and the European Union’s provisions on the free movement of people considering the freedom of movement as a core right, which constitutes citizenship and promotes the self-determination of an individual. Referring to Carens, Longo affirms (2013, pp. 31–32) that people should be free to determine their life choices (e.g., their occupation, place of residence and their partners, regardless of their geographic position in the world). Considering that the freedom of mobility is a driving force and a key element behind the structure of the European Union, we conceived this chapter by problematizing to what extent the European Union and the German State tolerate the right to freedom of movement. By freedom of movement, just as in the previous chapters, we understand the right to enter and stay in the territory of the German State/of the European Union, as well as the necessity (or not) of compulsory withdrawal from a territory. The associated rights to these, such as, for example, the right to exercise a profession in Germany or in the European Union in general will be tangentially mentioned, just as proceeded in the previous chapters. Also, on the first topic, which considers the analysis of German law, we will exclusively take into consideration the movement of third-country nationals within German territory, since the analysis of EU citizens’ migration rights within the German territory is absorbed by Sect. 5.2.1, which is dedicated to EU’s citizens’ migration rights within the EU. Whereas Sect. 5.1 is only dedicated to TCNs, Sect. 5.2 is divided into the EU’s treatment given to EU’s citizens and the EU’s treatment given to third-country nationals on the field of migration rights (entry, stay and compulsory withdrawal of immigrants).

© Springer Nature Switzerland AG 2020 E. Lana de Freitas Castro, Transnational Law of Human Mobility, https://doi.org/10.1007/978-3-030-46608-4_5

127

128

5.1

5 The Legal and Normative Framework on Migration in Germany and in the. . .

Germany’s Legal Framework on Migration and Its Responsiveness to the Free Movement of Third-Country Nationals Within the Country

As already extensively explained in Chaps. 2 and 3 of this book, Germany has gone through several in—and outflow foreign population rates. Today, because of the high inflow of refugees since 2015, discussions regarding Germany’s migration legal framework are inevitable and arguments claiming for an immigration law in Germany keep getting stronger (v. Harbou and Weizsäcker 2018, p. 1). In this subchapter dedicated to Germany we will present the legal framework of Germany for third-country nationals (considering that the treatment given to EU citizens immigrants are determined by EU law, as presented in Sect. 5.2.1). In this way, we will examine to what extent it is possible to refer to a truly free movement of third country nationals within the country. Considering the accuracy needed during a comparative law work, we will follow the structure of Sect. 4.1 and focus this subchapter on basically one source of law, namely, on the Aufenthaltsgesetz; in English, the Act on the Residence, Economic Activity and Integration of Foreigners in the Federal Territory1 (hereafter German Residence Act or simply Residence Act). This decision was taken because some similarities between the German Residence Act and the new Brazilian Migration Law can be established. A comparison between both countries’ migration law framework is possible because, just as the Brazilian migration law, the German Residence Act is also divided into: (i) entry into and (ii) residence in the German territory (chapter 2 of the Residence Act), as well as (iii) termination of stay and enforcement of the obligation to leave the federal territory (chapter 5 of the Residence Act). The German Federal Office for Migration and Refugees, in its Migration Report for the year 2015, revealed that in 2015 asylum seekers (441,899 people) and EU citizens (846,039 people) corresponded to the two biggest groups of immigrants within German territory (p. 6 and p. 8).2 The other biggest groups that contribute to the numbers of foreigners in Germany in this same year were: foreigners who are in Germany to initiate their higher education studies (99,087), immigrants moving to Germany because of family reunion (in this case, mostly, but not exclusively, as a consequence of the great number of asylum seekers, in a total of 72,659 people), as well as economic immigrants, representing a total of 38,836 immigrants of this category only in that year. Economic migration, family reunification and migration for study or research purposes (educational migration) are some of the numerous

1 In the version promulgated on 25 February 2008 (Federal Law Gazette I p. 162), last amended Article 10 (4) of the Act of 30.10.2017 (Federal Law Gazette I p. 3618). The full name of the German Residence Act is Gesetz über den Aufenthalt, die Erwerbstätigkeit und die Integration von Ausländern im Bundesgebiet. 2 The Migration Report for 2015, and most recent Migration Reports are available via https://www. bamf.de/EN/Themen/Forschung/Veroeffentlichungen/Migrationsberichte/migrationsberichtenode.html.

5.1 Germany’s Legal Framework on Migration and Its Responsiveness to the Free. . .

129

legal possibilities of entering German territory (Federal Office for Migration and Refugees 2018, p. 27). As the numbers related to family reunion also involve reunion of asylum seekers’ family members (but not only, as we know, for example, from the possibility of family reunion under the terms of the EU Long Term Directive, as described in Sect. 5.2.2), we will consider in our analysis economic immigration and educational immigration of third-country nationals to Germany only. In order to illustrate and justify our methodological cut-off, in 2017, for instance, economic and educational immigration to Germany were represented by 232,522 people who obtained residence permits (124,880 people for educational purposes and 107,642 people representing economic migrants—including people with the EU Blue Card).3 These numbers represent 21.4% of all residence permits granted to third-country nationals in that year. If compared to the previous year (2016), the number of residence permits granted to educational third-country nationals rose by 3.8%, whereas the ones granted to economic migrants represent 28% more than the permits granted in 2016. This methodological cut-off is also relevant in order to match with the analysis made in Sect. 5.2.2 which is also mostly dedicated to the immigration of TCN into the EU who find in the EU Member States an opportunity to stay for long periods and to exercise a profession. This subchapter intends to provide an overview of the legal regulation of the migration of third-country nationals for the purpose of gainful employment under German law, as well as for educational purposes. However, due to the very detailed regulations and numerous cases, it is not possible to give a conclusive description; the chapter must rather be limited to the (quantitatively and legally) most important regulations. Under national law, the following laws give third-country nationals rights and duties: (a) the already mentioned German Residence Act (Aufenthaltsgesetz), here used as base for our considerations; (b) the Residence Ordinance4 (Aufenthaltsverordnung), which complements and orients the application of the Residence Act; (c) the Employment Ordinance (Beschäftigungsverordnung), which also serves as a complement to the several modifications the Residence Act suffered and regulates the conditions under which foreign employees and foreigners already living in Germany can be admitted to the German labor market.5 Also belonging to Germany’s national legal framework on the immigration of thirdcountry nationals, there are the (d) the Asylum Act (Asylgesetz),6 which deals with

3

According to the Bundesamt für Migration und Flüchtlinge & Forschungszentrum Migration, Integration und Asyl (2018, p. 11). 4 Aufenthaltsverordnung vom 25. November 2004 (BGBl. I S. 2945), die zuletzt durch Artikel 1 der Verordnung vom 1. August 2017 (BGBl. I S. 3066) geändert worden ist. No official translation into English is available. 5 Beschäftigungsverordnung vom 6. Juni 2013 (BGBl. I S. 1499), die zuletzt durch Artikel 2 der Verordnung vom 1. August 2017 (BGBl. I S. 3066) geändert worden ist. No official translation into English is available. 6 In the version promulgated on 2 September 2008 (Federal Law Gazette I, p. 1798), last amended by Article 2 of the Act of 11 March 2016 (Federal Law Gazette I, p. 394).

130

5 The Legal and Normative Framework on Migration in Germany and in the. . .

forced migration and is not under the scope of this work;7 (e) the Law on the Central Register of Foreigners (Ausländerzentralregistergesetz),8 which lays down the rules and policies of the data and information stored on foreigners who are not only transitorily in the territory of the German State; (f) the Nationality Act (Staatsangehörigkeitsgesetz),9 which basically regulates the granting and the loss of German nationality; and (g) the Federal Expellee Law (Bundesvertriebenengesetz),10 which aims at regulating the legal situation of ethnic German refugees and expellees who fled or were expelled after World War II from the former Eastern territories of Germany and other areas of Central and Eastern Europe (Hailbronner 2017, pp. 15–25). In this context, and considering the methodological cut-off justified above, the most expressive regulation under German law on labor and educational migration could be represented by the German Residence Act,11 which has undergone modifications along the last years and that has been adapted according to the developments of EU law. The modifications the German law suffered (including, as already stated, the ones derived from the developments of EU law) have opened more possibilities for the people immigrating to Germany for labor and educational purposes to enter and to stay in the country (v. Harbou and Weizsäcker 2018, p. 4). Nevertheless, these modifications and the most recent laws12 have often avoided the use of the expression “immigration” or, in German, “Einwanderung”, just as they

7

Social assistance to forced migrants which must also be mentioned are: the Asylum Seekers’ Benefit Act (Asylbewerberleistungsgesetz) and the Third Book of the German Social Code (SGB III – Arbeitsförderung). 8 AZR-Gesetz vom 2. September 1994 (BGBl. I S. 2265), das zuletzt durch Artikel 4 des Gesetzes vom 17. Juli 2017 (BGBl. I S. 2615) geändert worden ist. No official translation into English is available. 9 Nationality Act of 22 July 1913 (Reich Law Gazette I p. 583—Federal Law Gazette III 102-1), as last amended by Article 3 of the First Act to Amend the Federal Act on Registration and other legislation of 11 October 2016 (Federal Law Gazette I p. 2218). 10 Bundesvertriebenengesetz in der Fassung der Bekanntmachung vom 10. August 2007 (BGBl. I S. 1902), das zuletzt durch Artikel 10 des Gesetzes vom 20. November 2015 (BGBl. I S. 2010) geändert worden ist. No official translation into English is available. 11 The German Residence Act uses the expression Ausländer in its provisions. Translated into English, Ausländer means foreigners. For methodology reasons, and in order to use the expression German lawmakers decided to apply, we are using throughout this chapter the word foreigner to refer to immigrants who find themselves within German territory. This does not mean we agree with the name Ausländer, which is given to these movers. 12 Just to cite a few, as mentioned by von Harbou and Weizsäcker: the Employment Ordinance (Beschäftigungsverordnung), already mentioned in this topic; the introduction of the EU’s Blue Card Directive rules into the German Residence Act; as well as the Act on the Implementation of European Union Residence Law Directives on Labor Migration, of 2017 (Gesetz zur Umsetzung aufenthaltsrechtlicher Richtlinien der Europäischen Union zur Arbeitsmigration—Federal Law Gazette I, p. 1106), which, as its name indicates, implemented in the German immigration legal framework some EU Directives dedicated to third-country nationals: the Directive on admission for seasonal employment (2014/36), the Directive on intra-corporate transferees (2014/66)—both of them to be mentioned in Sect. 5.2 of the present work—, as well as Directive (EU) 2016/801 of the

5.1 Germany’s Legal Framework on Migration and Its Responsiveness to the Free. . .

131

have avoided a realignment and reorientation of the most relevant norms in this sense (v. Harbou and Weizsäcker 2018, p. 4). Therefore, there have been many debates— especially political ones—on the drafting of a single immigration law in Germany that could provide rights for people who immigrate to Germany for the purposes of work and education. It is thought that this law could even include the intention of providing rights to asylum seekers, who could “change” their status from asylum seekers to labor migrants, facilitating their entry and stay in Germany (v. Harbou and Weizsäcker 2018, p. 5). Just to name one of the draft law proposals,13 we make reference to one brought by the parliamentary group Bündnis 90/Die Grünen,14 (for example, that suggested a points system, i. e., a system laid down by law according to which immigrants must achieve a certain number of points under certain specified criteria in order to obtain a specific visa). Through such a points system it could be possible to administrate immigration according to the needs of the country. According to the draft law of this parliamentary group, this points system should be also applied to foreigners who still do not have a concrete job offer in Germany, and it should represent a facility while obtaining residence permit and a possible simpler naturalization process. In the opinion of von Harbou and Weizsäcker (2018, pp. 5–6), the proposal from Bündnis 90/Die Grünen neither contains a meaningful restructuring of the system, nor simplifies the rights of those who immigrate to Germany aiming at education or job opportunities. The authors argue that this draft law merely maintains the rights contained in the already existent Residence Act and suggests a rebaptism of the law into “Immigration Law”. We must cite Eichenhofer and Hörich who report that a group of legal scholars on migration in Germany have gathered in order to discuss possible developments on German migration law. These developments refer mostly to the necessity of a new immigration law for Germany. These suggestions are justified given the fact that the current German legal framework on migration, as stated before, does not consider migration as Einwanderung, but as Zuwanderung (Eichenhofer and Hörich 2018, pp. 428–429). This means that German migration law is not prepared to treat as immigrants people who arrive in Germany and transfer their center of life from their country of origin to Germany (Einwanderung). Eichenhofer and Hörich affirm that German law has been conceived without considering that immigration is a natural

European Parliament and of the Council of 11 May 2016 on the conditions of entry and residence of third-country nationals for the purposes of research, studies, training, voluntary service, pupil exchange schemes or educational projects and au pairing (OJ L 132, 21.5.2016, pp. 21–57). 13 In fact, the coalition agreement between SPD, CSU and CDU from February 2018 mentions the necessity of creating a draft law on the immigration of skilled workers from third countries (Fachkräfteeinwanderungsgesetz). Also SPD parliamentary group drafted an immigration law for Germany—Entwurf eines Gesetzes zur Neuordnung der Einwanderung qualifizierter Fachkräfte (Einwanderungsgesetz – EinwG)—dating from November 2017 and available via https://www. spdfraktion.de/system/files/documents/ge-einwanderungsgesetz.pdf. 14 The draft of the law “Entwurf eines Gesetzes zur Einführung eines Einwanderungsgesetzes” dates from December 2018 and is available via https://dip21.bundestag.de/dip21/btd/19/065/1906542. pdf.

132

5 The Legal and Normative Framework on Migration in Germany and in the. . .

movement of people within a society. And this is why a modern immigration law should not be based on the prevention of immigration, but it should be thought to attend to immigrants’ needs, to their well-being and for the sake of the immigration society as a whole (Eichenhofer and Hörich 2018, p. 429). In English, the terms Zuwanderung and Einwanderung do not seem very different, as both expressions should be translated into “immigration”. However, in German language, these words seem to present different semantics. When we analyze Pagenstecher’s writings, Einwanderung represents a cultural and social process that occurs in the long run and that is composed of three elements: entry of person into the territory of a State, the settlement of the immigrant within the territory of that State, and the immigrant’s intention to stay in that State (Pagenstecher 1996, p. 151). In this sense, just as Eichenhofer and Hörich stated, Pagenstecher also concludes that the expression Einwanderung aims at referring to an immigrant’s permanent settlement within the territory of a State. This settlement, in Pagenstecher’s opinion, can be observed through objective elements, such as the duration of the stay of an immigrant within the territory of a State, the demographic structure of a country, the housing and labor situation, as well as the immigrants’ savings and consume behavior. The German expression Zuwanderung refers to the situation in which an immigrant cannot, or in which is not possible, for him/her to stay and settle in an specific country, transferring his/her center of life to that country in question (in this case, Germany). This would be the case, for example, of people affected by the Gastarbeiter policy, already deeply explained in Chap. 3 of this book. In this context, when we refer to Zuwanderung, we refer to immigrants who are “tolerated” (as hard as this expression seems to be) by the German State and who are seen as a mere influx of people into the country rather than a group of people who cross the borders with the intention to stay and build up their lives in a new country. By analyzing the German Residence Act, we realize, as already discussed above, the act’s intention to regulate the Zuwanderung rather than Einwanderung into the German State: Section 1 Purpose of the Act; scope (1) This Act shall serve to control and restrict the influx of foreigners into the Federal Republic of Germany. It shall enable and organise immigration with due regard to the capacities for admission and integration and the interests of the Federal Republic of Germany in terms of its economy and labour market. At the same time, the Act shall also serve to fulfil the Federal Republic of Germany’s humanitarian obligations. To this end, it shall regulate the entry, stay, economic activity and integration of foreigners. The provisions contained in other acts shall remain unaffected.15

As it is expressed in its text, the German Residence Act serves as a tool for controlling and restricting the influx of people into German territory, so that it consequently serves as grounds for the administration of the German borders. In 15 In the version promulgated on 25 February 2008 (Federal Law Gazette I p. 162), last amended Article 10 (4) of the Act of 30.10.2017 (Federal Law Gazette I, p. 3618).

5.1 Germany’s Legal Framework on Migration and Its Responsiveness to the Free. . .

133

fact, Eichenhofer and Hörich (2018, p. 429) add to the prescriptions of Section 1 (1) of the Residence Act the fact that the entry, the settlement, and the employment (or any economic occupation) of immigrants in Germany are prohibited unless there is an expressed authorization for it. This affirmation of the authors is based on the Residence Act Sections 4(1) and (3), which, in a nutshell, obliges immigrants from third countries to obtain a residence title in order to enter and stay in Germany and to work in Germany as long as the residence title allows so. Also Section 3916

16

Section 39 Approval of employment for a foreigner (1) A residence title which permits a foreigner to take up employment may only be granted with the approval of the Federal Employment Agency, in the absence of any provisions to the contrary in statutory instruments. Such approval may be granted if laid down in intergovernmental agreements, an act or a statutory instrument. (2) The Federal Employment Agency may approve the granting of a temporary residence permit to take up employment pursuant to Section 18 or of an EU Blue Card pursuant to Section 19a if 1. (a) the employment of foreigners does not result in any adverse consequences for the labour market, in particular with regard to the employment structure, the regions and the branches of the economy, and (b) no German workers, foreigners having the same legal status as German workers with regard to the right to take up employment or other foreigners who are entitled to preferential access to the labour market under the law of the European Union are available for the type of employment concerned or 2. it has established, via investigations for individual occupations or for individual industries in accordance with sentence 1, no. 1 (a) and (b), that filling the vacancies with foreign applicants is justifiable in terms of labour market policy and integration aspects and the foreigner is not employed on terms less favourable than apply to comparable German workers. German workers and foreigners of equal status shall also be deemed to be available if they can only be placed with assistance from the Federal Employment Agency. The future or present employer of a foreigner who requires or has obtained approval for such employment must furnish the Federal Employment Agency with information on pay, working hours and other terms and conditions of employment. (3) Subsection 2 shall also apply if approval from the Federal Employment Agency is required in order to take up employment in cases of residence for other purposes covered in Parts 3, 5 or 7. (4) The approval may stipulate the duration and form of occupational activity and restrict the employment to specific plants or regions. (5) The Federal Employment Agency may approve the granting of a permanent settlement permit pursuant to Section 19 if employment of the foreigner does not result in any adverse consequences for the labour market. (6) Subsections 2 and 4 shall apply accordingly to the granting of a seasonal work permit. As for the rest, the legal provisions governing the approval by the Federal Employment Agency shall be applied to the work permit in the absence of any law or statutory instrument to the

134

5 The Legal and Normative Framework on Migration in Germany and in the. . .

and 5017 are cited by the authors. These two legal provisions, respectively, limit the exercise of an employment to a residence permit that allows so under the approval of the German Federal Employment Agency and also oblige immigrants to leave the country if he/she does not possess, or no longer possesses, the necessary residence title. Therefore, the German Residence Act is about laying down prohibitions that might be subject to permissions (Verbot mit Erlaubnisvorbehalt). Closely linked to the principle of prohibition subject to permission contained in the German Residence Act is the concept of the intention of the stay within German territory. Immigrants may only enter and stay in Germany if they can invoke one of the legally defined purposes of residence, which are contained in Sections 16 to 38a, as well as in Section 104a and b. These are further examples that serve as evidence for the argument that the German Residence Act presents a Zuwanderungsrecht rather than a Einwanderungsrecht. Temporary immigration (Zuwanderung), and not permanent immigration (Einwanderung) with its associated need for integration is legally assumed to be the rule rather than the exception. This is also demonstrated by the fact that the Residence Act—with a few exceptions, such as Sections 19 and 19a which is dedicated to highly qualified immigrants—only provides

contrary. The Federal Employment Agency may determine demand-oriented admission figures with regard to approving the granting of a residence title for seasonal work and a seasonal work permit. 17

Section 50 Requirement to leave the federal territory (1) A foreigner shall be obliged to leave the federal territory if he does not possess or no longer possesses the necessary residence title and a right of residence does not exist or no longer exists under the EEC/Turkey Association Agreement. (2) The foreigner shall leave the federal territory without delay or, if a period has been allowed for departure, by the end of this period. (2a) (repealed) (3) The foreigner may meet his obligation to leave the federal territory by entering another member state of the European Union or another Schengen state only if his entry into and residence in such state is permitted. If this is the case, the foreigner who is obliged to leave the federal territory must be required to proceed to the territory of such state without delay. (4) A foreigner who is obliged to leave the federal territory and who intends to change his address or to leave the district covered by the foreigners authority for more than three days shall be required to notify the foreigners authority accordingly beforehand. (5) The passport or passport substitute of a foreigner who is required to leave the federal territory should be taken into custody until his departure. (6) For the purpose of terminating residence of a foreigner, the police may use their search tools for wanted persons in order to determine the foreigner’s whereabouts and to apprehend him, if his whereabouts are not known. A foreigner subject to a ban on entry and residence pursuant to Section 11 may be reported for the purposes of refusal of entry and, in the event of his being found in the federal territory, for the purposes of his apprehension. Section 66 of the Asylum Act shall apply accordingly to foreigners who have been allocated in accordance with Section 15a.

5.1 Germany’s Legal Framework on Migration and Its Responsiveness to the Free. . .

135

that an initial permit to enter and stay within German territory is granted for a limited period of time (Eichenhofer and Hörich 2018, pp. 429–431). From the granting of a first and temporary residence permit until the granting of an unlimited one, the immigrant must endure a kind of “probation phase” enshrined in Sections 9 to 9c of the Residence Act (Groß 2014, pp. 428–429). Moreover, Groß’s arguments support the abovementioned evidences on the German Residence Act as a legal instrument dedicated to Zuwanderung: the author affirms that the German Residence Act still seems to maintain its provisions under the shadows of Police Law,18 which used to be the basis of immigrants’ rights and migration law in the 1930s, as explained in Chap. 2 of this book. It is not without reason that, according to Groß (2014, pp. 443–444), it is high time to redesign the basic structures of the German Residence Act. In this case, the fundamental rights of the immigrants shall be first and foremost considered, in such a way that not only the considerations of German society are attended. According to him, immigrants shall no longer be understood as objects of State control. In a different way though consider Huber, Eichenhofer, and Endres de Oliveira when they state that the German Residence Act clearly represents a detachment from its origin on Police Law, figuring now as a special subject of Administrative Law (besonderes Verwaltungsrecht), since, even though the Residence Act provides the restrictions contained in Section 1 (1), as analyzed above, it also guarantees rights to economic migrants and addresses integration of immigrants (Huber et al. 2017, p. 1). The immigration proceedings under the concept of “prohibitions that might be subject to permissions” (Verbot mit Erlaubnisvorbehalt) contained in the Residence Act could make us conclude that German Migration Law still reveals shades of a strict Police Law, as argued by Groß. This need and necessity of change proclaimed by the authors above (except for the very last ones mentioned) seem to be one of the priorities of the current German Government. In the beginning of October 2018, at least when it comes to the attraction of skilled workforce to Germany, the launch of the cornerstones for a draft law to be called Fachkräftezuwanderungsgesetz gave a sign of modernization and willingness to facilitate the entry of immigrants from third countries into Germany. Federal Interior Minister Horst Seehofer presented, in October 2018, the cornerstones of a planned immigration law for skilled workers, the so-called Eckpunkte zur Fachkräfteeinwanderung aus Drittstaaten. With these, the German Federal Government intends to make it easier for qualified foreign workers from third countries who intend to work in Germany their move to the country.19 The cornerstones are based on the fact that the German labor market is in need of a skilled labor force. According to the cornerstones, although Germany is experiencing 18

Especially when considering and interpreting the provisions of Section 1 (1). Information on these cornerstones and on the intentions of the German Government with a law for the attraction of highly skilled people has been massively widespread on by the media, see: https:// www.bayernkurier.de/inland/34215-besserer-zugang-fuer-fachkraefte/, https://www.tagesspiegel. de/politik/fachkraeftezuwanderungsgesetz-einwanderung-erwuenscht/23145322.html, https://www. mdr.de/nachrichten/politik/inland/zuwanderung-auslaendische-fachkraefte-100.html. 19

136

5 The Legal and Normative Framework on Migration in Germany and in the. . .

extremely positive economic outcomes especially in the last few years, companies are already facing difficulties in finding qualified workers for specific qualifications, regions and sectors, and it might remain so in the future. Overall, the shortage of skilled workers has developed into a significant risk for the German economy. Moreover, it is said that the increasingly noticeable demographic change and rapidly advancing digitalization will intensify this in the future. The cornerstones laid down for the immigration of highly skilled people20 (Fachkräfteeinwanderung) are basically five:21 (i) the legal framework proposed by the cornerstone aims at a better management of immigrants, as well as at meeting the needs of skilled workers; (ii) the quality of the professional practice of the immigrants shall be guaranteed by enabling a fast and simple recognition of foreign degrees and studies concluded abroad; (iii) the targeted recruitment of skilled workers, from specific countries, which, together with the needs of the market and the actions of the Government, shall jointly and strategically make Germany an attractive country to live in; (iv) the importance of German language skills, aiming at increasing German language support and its promotion among immigrants, not only within German territory but also abroad (in target countries); and (v) the efforts of turning administrative procedures in Germany and abroad more efficient and transparent, improving the communication between immigrant and the Government, making the competent authorities act more efficiently, transparently and future-oriented.

20 It is important to stress that the cornerstones also lay down the importance of providing Germans and citizens of the European Union with the necessary tools for making the German market an attractive market for highly skilled workers. According to the cornerstones, the German government will focus first and foremost on raising and safeguarding domestic potential, by intensifying the Government’s efforts to make it easier to reconcile family and working life, because it is particularly important to tap the valuable untapped potential of women. The Government mentions as an essential adjustment the guarantee of employability of all workers. In concrete terms, the Government believes that it is important to maintain and/or adapt the qualifications of German workers according to the changes of the world of work. To this end, it is intended to create a National Further Education Strategy together in order to also improve further education and training and prepare better the country and the Federal States for the necessities of the employees and of the companies. See: Federal Ministry of the Interior, Building and Community. Eckpunkte zur Fachkräfteeinwanderung aus Drittstaaten. Available via https://www.bmi.bund.de/SharedDocs/ downloads/DE/veroeffentlichungen/2018/eckpunkte-fachkraefteeinwanderung.pdf;jsessionid¼ FEC12038D8E67C095973112912D5ADDE.1_cid287?__blob¼publicationFile&v¼1, pp. 1–2. 21 See: Federal Ministry of the Interior, Building and Community. Eckpunkte zur Fachkräfteeinwanderung aus Drittstaaten. Available via https://www.bmi.bund.de/SharedDocs/ downloads/DE/veroeffentlichungen/2018/eckpunkte-fachkraefteeinwanderung.pdf;jsessionid¼ FEC12038D8E67C095973112912D5ADDE.1_cid287?__blob¼publicationFile&v¼1, pp. 1–7.

5.1 Germany’s Legal Framework on Migration and Its Responsiveness to the Free. . .

137

In this sense, the suggestion and the drafting of this new immigration law for the attraction of highly skilled workers does not necessarily mean that the differences of intention that exist between Zuwanderung and Einwanderung completely disappear. After all, one of the main reasons for the drafting of a Fachkräfteeinwanderungsgesetz, according to the cornerstones, is the maintenance of the competitiveness within the German market, guaranteeing Germany as a strong business location by working together with the business community in order to find skilled workers and people with qualified vocational training. In this sense, immigration would be welcome in order to boost Germany’s economy. Nevertheless, we do see that there is one factor that might prevent Germany from creating a Zuwanderung law rather than a Einwanderung law. This factor is the necessity of maintaining the stability of Germany’s social security system. With a great number of people approaching the old-age retirement, and with fewer people taking on the job market, the country is obliged to see immigration—specially of third-country nationals—as one of the key points to further economic development and, therefore, to see now immigration as Einwanderung, once immigrants will have to exercise their professions within the country without a provisory status.22 It is though too soon to know if our conjectures about the draft law’s real intentions on welcoming skilled immigrants are correct. We will have to wait for the entry into force of the law in March 2020 in order to see if it maintains its plans of promoting Einwanderung rather than Zuwanderung into the country, especially because the new law modifies many sections of the German Residence Act. Before scrutinizing the rights of entry and stay of educational and economic migrants of third countries, we shall shortly present some information on the general preconditions of entry and stay of immigrants under the German Residence Act. The entry into and exit from German territory is considered as such when permitted “only at the approved border crossing points and within the stipulated traffic hours, in the absence of any exceptions which may be permissible on the basis of other statutory provisions or intergovernmental agreements.”23 These statutory exceptions refer, for example, to agreements that stipulate special conditions for the movement of border workers or to, more specifically, Regulation (EC) No 1931/2006 of the European Parliament and of the Council of 20 December 2006 which lays down rules on local border traffic at the external land borders of the EU Member States (Hailbronner 2017, p. 80). A foreigner is only considered to have entered German territory, with his/her necessary documents, after having crossed the border and passed through the border checkpoint (Section 13 (2)). When referring to a basic requirement so that a foreigner can cross the German border and stay within German territory, a recognized and valid passport or passport

22 It is estimated that Germany’s population could drop from more than 80 million to between 65 and 70 million by 2060. Thoughts on how immigration could prevent Germany’s population decline (the so-called demographic dividend) are shared in Weber (2015). 23 In the version promulgated on 25 February 2008 (Federal Law Gazette I p. 162), last amended Article 10 (4) of the Act of 30.10.2017 (Federal Law Gazette I p. 3618), Section 13 (1).

138

5 The Legal and Normative Framework on Migration in Germany and in the. . .

substitute is necessary, unless foreigners “are exempt from the passport requirement by virtue of a statutory instrument.”24 A passport, therefore, is an identity document that serves not only as proof of identity but also entitles its holder to return to another country (Marx 2015, p. 99). Alternatively, once the foreigner is admitted to the country, this identity document to be used by the resident can be a substitute identity document rather than the passport, which shall also suffice in order to meet the passport requirement, as provided by Section 3 (1). The residence title requirement, provided by Section 4, and already cited while analyzing the Residence Act’s principles, provides that, as long it is not defined differently by the law of the European Union or by a statutory instrument, a residence title shall be granted in specific forms. Therefore, according to this Section’s provisions, for third-country nationals there are seven different kinds of residence titles: the visa (Section 6); the temporary residence permit (Section 7); the EU Blue Card (Section 19a); the ICT Card (Section 19b); a Mobile ICT Card (Section 19d); a permanent settlement permit (Section 9) and; an EU long-term residence permit (Section 9a): Section 4 Residence title requirement (1) In order to enter and stay in the federal territory, foreigners shall require a residence title, in the absence of any provisions to the contrary in the law of the European Union or a statutory instrument and except where a right of residence exists as a result of the agreement of 12 September 1963 establishing an association between the European Economic Community and Turkey (Federal Law Gazette 1964 II, p. 509) (EEC/Turkey Association Agreement). The residence titles shall be granted in the form of 1. a visa pursuant to Section 6 (1), no. 1 and (3), 2. a temporary residence permit (Section 7), 2a. an EU Blue Card (Section 19a), 2b. an ICT Card (Section 19b), 2c. a Mobile ICT Card (Section 19d) 3. a permanent settlement permit (Section 9) or 4. an EU long-term residence permit (Section 9a). The legal provisions governing temporary residence permits shall also apply to the EU Blue Card, the ICT Card and the Mobile ICT Card in the absence of any law or statutory instrument to the contrary.25

It is important to note that such a residence title as described in Section 4 (1) allows the holder of it to pursue an economic activity insofar as this is laid

24

Residence Act in the version promulgated on 25 February 2008 (Federal Law Gazette I p. 162), last amended Article 10 (4) of the Act of 30.10.2017 (Federal Law Gazette I p. 3618), Section 3 (1). 25 In the version promulgated on 25 February 2008 (Federal Law Gazette I p. 162), last amended Article 10 (4) of the Act of 30.10.2017 (Federal Law Gazette I p. 3618).

5.1 Germany’s Legal Framework on Migration and Its Responsiveness to the Free. . .

139

down in the Residence Act, or the residence title expressly permits the pursuit of an economic activity. It is obligatory that the residence title expressly says whether the foreigner is allowed or not to pursue an economic activity (Section 4 (2)) (Ponert 2018, p. 15). Generally speaking, under the terms of Section 5 (1) of the Residence Act, by granting any of the possible residence titles, some points shall be presupposed (Hailbronner 2017, p. 90), such as: (a) the foreigner’s subsistence is guaranteed; (b) the foreigner’s identity is established, as is his/her nationality, if he/she is not entitled to return to another state; (c) there is no public interest from the German State in expelling the foreigner; (d) in case the foreigner has no entitlement to a residence title, the foreigner’s residence does not compromise or jeopardize the interests of the German State for any other reason and; (e) that the passport requirement already mentioned above is met. Other presuppositions are required when granting a foreigner a temporary residence permit, an ICT Card, a permanent settlement permit or an EU long-term residence. It shall be presupposed that the foreigner has entered the country with the necessary visa and has already furnished the key information required for granting the title in his/her visa application.26 It is important to note that both the visa and the residence permit are conceived as multifunctional residence titles, which can be issued for several different temporary and permanent residence purposes (e.g., for the sake of working, studying, family reunion, or on humanitarian grounds). The only difference between these two residence titles is that the visa is issued by the diplomatic or consular missions before the foreigner enters German territory and thus entitles the holder of the visa to enter the State (Hailbronner 2017, p. 87). The residence permit, on the other hand, is issued by the immigration authorities only after the foreigner’s entry into the country. However, both titles may contain provisions on permission to engage in paid employment and, if necessary, other ancillary provisions such as a specific time limit for residence. When it comes to visa provisions under German law, besides the determinations based on Regulation (EC) No 810/2009 of the European Parliament and of the Council of 13 July 2009 establishing a Community Code on Visas (the so-called Schengen Visa Code), which have been internalized by Section 6 (1) and (2),27

26

According to the Residence Act in the version promulgated on 25 February 2008 (Federal Law Gazette I p. 162), last amended Article 10 (4) of the Act of 30.10.2017 (Federal Law Gazette I p. 3618). 27 (1) A foreigner may be issued the following visas in accordance with Regulation (EC) No 810/2009: 1. a visa for the purpose of transit through the territory of the Schengen states or for planned stays in this territory of up to 90 days within a 180-day period (Schengen visa), 2. an airport transit visa for the purpose of passing through the international transit area at airports. (2) In accordance with Regulation (EC) No 810/2009, Schengen visas may be extended up to a total stay of 90 days within a 180-day period. A Schengen visa may be extended by a further 90 days within the 180-day period concerned as a national visa on the grounds stated

140

5 The Legal and Normative Framework on Migration in Germany and in the. . .

Section 6 (3) provides on national visa. In this regard, it is possible that the German State issues a visa for those third-country nationals wishing to stay within German territory for more than 3 months. This visa shall be issued before the person’s entry into Germany (Huber et al. 2017, p. 37). It is important to note that the visa shall be issued “on the basis of applicable provisions for a temporary residence permit, EU Blue Card, ICT Card, permanent settlement permit or EU long-term residence permit.”28 Furthermore, the time of the duration of a lawful stay in Germany, with a national visa, shall be offset against the periods of possession of a temporary residence permit, EU Blue Card, permanent settlement permit or EU long-term residence permit. This means that a national visa shall be granted considering the time already granted in the context of one of the residence permits mentioned in the previous sentence. It is also important to note that there are no provisions in the Residence Act that determines a specific period of validity of the national visa (Huber et al. 2017, p. 38).29 When it comes to the temporary residence permit (Aufenthaltserlaubnis), generally provided by Section 7 of the German Residence Act, it is important to know that, as its name indicates, it is limited in time. Such a permit serves for several of purposes that are provided by the Residence Act, depending on the intention of the foreigner who wants to reside in Germany. In the case of this work, the purposes to be explored refer to the residence permits for educational purposes and for the purpose of economic activity. The temporary residence permit has an expiration date that is related to the foreigner’s intended purpose of residence: “Should a vital prerequisite for issuance, extension or the duration of validity cease to apply, it shall also be possible to subsequently reduce the length of validity”.30 Nevertheless, the possibility of extension of the temporary residence permit is guaranteed by Section 8 of the Residence Act, under the same regulations that apply to the permit’s issuance (Section 8(2)), and under the condition that the foreigner has fulfilled his/her obligation of attending an integration course (Section 8 (3)). It is possible to transform a temporary residence permit to a permanent settlement permit if the legal requirements for the granting of a settlement permit are met and if the immigration office has not conceived the residence permit as a merely temporary

in Article 33 of Regulation (EC) No 810/2009/EC, to safeguard the interests of the Federal Republic of Germany or for reasons of international law (...). 28

In the version promulgated on 25 February 2008 (Federal Law Gazette I p. 162), last amended Article 10 (4) of the Act of 30.10.2017 (Federal Law Gazette I p. 3618), Section 6(3). 29 The authors report, though, that, in practice, the national visa has a validity of three months. Otherwise, the duration of the intended stay in German territory is determined by the circumstances of the stay; then, the issuance of the national visa extends in general for a maximum period of 1 year. Also, differently form the Schengen visa, there are no provisions on Section 6 (3) on the possibility of extension of the national visa. Nevertheless, Section 39, No. 1 of the Residence Ordinance (Aufenthaltsverordnung) provides that a national visa or a residence title under the terms of Section 6 (3) of the Residence Act can be extended. 30 In the version promulgated on 25 February 2008 (Federal Law Gazette I p. 162), last amended Article 10 (4) of the Act of 30.10.2017 (Federal Law Gazette I p. 3618), Section 7(2).

5.1 Germany’s Legal Framework on Migration and Its Responsiveness to the Free. . .

141

right of residence by excluding the possibility of extension (Hailbronner 2017, p. 87). The permanent settlement permit (Niederlassungserlaubnis), provided by Section 9 of the Residence Act,31 reinforces and ensures the permanent stay of a foreigner within the territory of the German State, and entitles him/her to pursue an economic activity in the country. In contrast to the residence permit, the settlement permit is in principle unlimited in time and content (Hailbronner 2017, p. 98). The requirements for the issuance of the German settlement permit to thirdcountry nationals are similar to the requirements for applying for the EU long-term residence permit:32 (2) A foreigner shall be issued an EU long-term residence permit pursuant to Article 2 (b) of Directive 2003/109/EC if 1. he has resided in the federal territory with a residence title for five years, 2. his subsistence and the subsistence of his dependants whom he is required to support is ensured by a fixed and regular income, 3. he has sufficient command of the German language, 4. he possesses a basic knowledge of the legal and social system and the way of life in the federal territory, 5. the granting of such a residence permit is not precluded by reasons of public safety or order, according due consideration to the severity or the nature of the breach of public safety or order or the danger emanating from the foreigner, with due regard to the duration of the foreigner’s stay to date and the existence of ties in the federal territory and 6. he possesses sufficient living space for himself and the members of his family forming part of his household.33

31 The basic requirements for being able to apply for the settlement permit are provided by Section 9 (2):

(2) A foreigner shall be granted a permanent settlement permit if 1. he has held a temporary residence permit for five years, 2. his subsistence is secure, 3. he has paid compulsory or voluntary contributions into the statutory pension scheme for at least 60 months or furnishes evidence of an entitlement to comparable benefits from an insurance or pension scheme or from an insurance company; time off for the purposes of child care or nursing at home shall be duly taken into account, 4. granting such a temporary residence permit is not precluded by reasons of public safety or order, according due consideration to the severity or the nature of the breach of public safety or order or the danger emanating from the foreigner, with due regard to the duration of the foreigner’s stay to date and the existence of ties in the federal territory, 5. he is permitted to be in employment, if he is in employment, 6. he possesses the other permits required for the purpose of the permanent pursuit of his economic activity, 7. he has sufficient command of the German language, 8. he possesses a basic knowledge of the legal and social system and the way of life in the federal territory and 9. he possesses sufficient living space for himself and the members of his family forming part of his household. 32

The EU long-term residence permit is also presented in Sect. 5.2.2 of the present work. In the version promulgated on 25 February 2008 (Federal Law Gazette I p. 162), last amended Article 10 (4) of the Act of 30.10.2017 (Federal Law Gazette I p. 3618), Section 9a (2). 33

142

5 The Legal and Normative Framework on Migration in Germany and in the. . .

In this regard, Section 9a (1) establishes that in the absence of any provisions to the contrary in the German Residence Act, the EU long-term residence permit shall be equivalent to the permanent settlement permit. We must agree with Arcarazo when he states (2015a, p. 200) that the EU long-term residence permit grants thirdcountry nationals a migratory status that brings them closer to the rights owned by EU citizenship. In this sense, EU Member states, and, in this case, Germany, “are obliged to grant EU long-term residence and the rights associated with it to TCNs fulfilling the conditions in the Directive” (Arcarazo 2015a, p. 217), which, in this case, have been transposed by the German Residence Act. The permanent settlement permit and the EU long-term residence are, unlike the visa, the Blue Card and the temporary residence permit, unlimited in time and space. The holders of the permanent settlement permit and of the EU long-term residence permit are entitled to pursue an economic activity and these titles may only be supplemented with a subsidiary provision in those cases which are expressly permitted by the German Residence Act (Hailbronner 2017, p. 87).

5.1.1

The Rights of Third-Country Nationals Who Reside in Germany for Educational Purposes

In chapter 2 Part 3 of the German Residence Act there are provisions related to the rights of third-country nationals who reside in Germany for the sake of further education and who have been accepted by the educational institution. These further education possibilities comprise: research, studies, training,34 voluntary service,35 pupil exchange schemes or educational projects and au pairing (Section 16).36 These 34 As already mentioned in the beginning of Sect. 5.1, there are specific criteria based on EU Directive 801/2016 that allow a third-country national to pursue a study-related training program in the EU and, in this case, in Germany. These conditions are provided by Section 17b of the German Residence Act and the issuance of a temporary residence permit is possible if, among other conditions, the Federal Employment Agency has granted approval for this training in accordance with Section 39 or it has been determined by statutory instrument pursuant to Section 42 or by intergovernmental agreement that such training is permissible without approval from the Federal Employment Agency. Moreover, the training program must be designed to enable the third-country national to gain knowledge, practice and experience in a professional environment, if the foreigner presents a training agreement which provides for theoretical and practical training with a host entity, among other conditions that are provided by Section 17b and its paragraphs. On this issue see: Huber et al. (2017), pp. 76–77. 35 A temporary residence permit for the purpose of participating in a European voluntary service scheme must be in accordance with Directive (EU) 2016/801 and it is provided by the German Residence Act under Section 18d. 36 Other educational purposes are also considered, as provided by Section 17, which grants a temporary residence permit for the purpose of basic and advanced vocational training. This temporary residence permit “may be extended by up to one year for the purpose of seeking a job commensurate with this qualification, provided that foreigners are permitted to fill the vacancy in accordance with Sections 18 and 21.”, according to Section 17 (3) of the Residence Act. Also, this

5.1 Germany’s Legal Framework on Migration and Its Responsiveness to the Free. . .

143

foreigners are granted a temporary residence permit. These study purposes mentioned by Section 16 also include a preparation phase for studies and compulsory training, such as the attendance to a language course which prepares the foreigner for his/her full-time studies if his/her studies depend on such a preparatory language course,37 as well as the attendance to a preparatory course or similar course prior to his/her studies, if the foreigner happens to prove that he/she has been accepted for the preparatory or comparable course (Huber et al. 2017, pp. 62–63). It is important to note that Chapter 2 Part 3 of the Residence Act refers to foreigners who wish to reside in Germany for the purpose of full-time studies at a state or state-recognized university or a comparable educational institution, which, under the German educational system comply not only universities in general, but also, for example, institutions under the following German names: Pädagogische Hochschule, Kunsthochschule, Fachhochschule, Berufsakademie, Studienkolleg, among others (Huber et al. 2017, p. 63). Furthermore, the foreigner considered under Section 16b of the Residence Act is entitle to take up employment for no more than 120 days or 240 half-days per year, as well as spare-time student employment (Section 16b (3)).38

same provision states that the temporary residence permit shall entitle the holder to pursue an economic activity within this period. There are some general rules on grounds for rejection in the case of researchers, students, pupils, trainees, participants in language courses and European Voluntary Service that are provided by Section 20c of the Residence Act. Basically, a temporary residence permit pursuant to Sections 16, 16b, 17b, 18d, 20 or 20b shall not be granted in cases in which the host entity was established for the main purpose of facilitating the entry and residence of foreigners for the purposes mentioned in the individual provisions. Moreover, the temporary residence permit shall not be granted in several fraud and insolvency cases. For more details, see Section 20c (2) and (3). 37 Not necessarily a German language course, but any language which is relevant for preparing the foreigner for his/her future studies in Germany, see: Huber et al. (2017, p. 63). It is important to note that a foreigner may be granted a temporary residence permit to attend language courses that do not serve for preparation for a course of study (in contrast to what is provided by Section 16), as well as to take part in a pupil exchange scheme, and, in exceptional cases, also to attend school. These are provisions from Section 16b of the German Residence Act, which determines that a temporary residence permit for participation in a pupil exchange scheme may also be granted in cases where there is no direct exchange. Where the foreigner is under 18 years of age, the persons entitled to his/her care and custody must consent to the planned stay. If the stay at the school is intended for the completion of a vocational training, it is possible for the foreigner that he/she works up to 10 hours/ week in jobs that do not relate to his/her to such vocational qualification (Section 16b (2)). It is also possible that, after completing the vocational training, the foreigner may have his/her temporary residence permit extended by up to twelve months for the purpose of seeking a job. This job must be in accordance with the vocational training qualification acquired, provided that foreigners are permitted to fill the vacancy in accordance with Sections 18 and 21 of the Residence Act. As stated by Section 16b (3): “The temporary residence permit shall entitle the holder to pursue an economic activity in this period.” 38 This rule does not apply in the foreigner’s first year of residence during a stay for the purpose of preparatory measures for a course of study, except during holidays, as defined by Section 16 (3). See: Residence Act in the version promulgated on 25 February 2008 (Federal Law Gazette I p. 162), last amended Article 10 (4) of the Act of 30.10.2017 (Federal Law Gazette I p. 3618).

144

5 The Legal and Normative Framework on Migration in Germany and in the. . .

Apart from the rules on the period of validity of the temporary residence permit for the sake of further education (Section 16 (3)), and the possibility on extending the temporary residence permit for a purpose other than further education (Section 16 (4)), it is also possible that the foreigner, (after completing his/her studies), may extend his/her temporary residence permit by up to 18 months “for the purpose of seeking employment commensurate with this qualification, provided that foreigners are permitted to pursue this economic activity in accordance with the provisions contained in Sections 18, 19, 19a, 20 and 21.”39 However, contrary to what is defined by Section 4 (1) of the Residence Act, a foreigner shall not “require a residence title for stays for study purposes not exceeding 360 days, if the host educational institution in the federal territory has notified the Federal Office for Migration and Refugees that the foreigner intends to carry out part of his studies”40 in Germany. This kind of stay, called mobility of students, is provided by Section 16a of the Residence Act,41 which introduces Article 31 of the already mentioned EU Directive 801/2016.42 The exemption of a residence title in this case demonstrates the high level of integration within the European Union. After all, Section 16a illustrates the typical case of academic undergraduate programs that may be taken up in several different European cities, where the foreign student can attend to classes in two or more EU Universities. During the course, it is thought that the foreign student moves from one Member State to the other in order to attend to specific classes which are offered by the partner

39

In the version promulgated on 25 February 2008 (Federal Law Gazette I p. 162), last amended Article 10 (4) of the Act of 30.10.2017 (Federal Law Gazette I p. 3618), Section 16 (5). 40 In the version promulgated on 25 February 2008 (Federal Law Gazette I p. 162), last amended Article 10 (4) of the Act of 30.10.2017 (Federal Law Gazette I p. 3618), Section 16a(1). According to this provision, for this purpose, following documents need to be presented by the foreigner: 1. evidence that the foreigner has a residence title for study purposes from another member state of the European Union which is valid for the duration of the planned stay and falls within the ambit of Directive 2016/801, 2. evidence that the foreigner wishes to carry out part of his studies at an educational institution in the federal territory, because he is taking part in a Union or multilateral programme that comprises mobility measures or because he is covered by an agreement between two or more higher education institutions. 3. evidence that the foreigner has been accepted by the host educational institution, 4. the copy of the foreigner’s recognised and valid passport or passport substitute, 5. and evidence that the foreigner’s subsistence is secure. 41 This Section also details the proceedings that must exist between the host educational institution and the German Government. More explanations on the proceedings, including the grounds for obstacles for a student from a third-country when applying for this kind of mobility which are provided by Section 20c, see: Huber et al. (2017), pp. 70–71. 42 For more information on this European law instrument, see also: Weizsäcker (2018, pp. 49–50).

5.1 Germany’s Legal Framework on Migration and Its Responsiveness to the Free. . .

145

Universities of the program.43 Within the framework of the mobility of students, it is possible that a third-country national takes up employment with summarizing no more than one-third of the period of his/her residence, being also possible for him/her to take up spare-time student employment (Huber et al. 2017, p. 71). Aiming at a more facilitated immigration of skilled workers (especially healthcare and nursing care professionals), Section 17a of the Residence Act has opened a new possibility for third-country nationals for the recognition of professional qualifications which a foreigner has acquired abroad (Neundorf 2018, pp. 90–91). For this purpose, the foreigner may be granted a temporary residence permit for up to 18 months so that he/she can undertake a training measure and a subsequent examination, depending on the requirements the German government and laws imposes regarding recognition of professional qualifications (if, for example, any adaptation measures or further qualifications for the exercise of a profession are necessary). These adaptation measures or further qualifications might be necessary “1. to establish the equivalence of the professional qualification with a German professional qualification or; 2. to grant authorisation to practise the profession or to issue permission to use the professional title in a regulated profession in Germany.”44 It is important to note that the holders of this temporary residence permit it is allowed to pursue an economic activity which must be independent of the training measure for up to ten hours per week (Section 17a (2)). Apart from the conditions to acquire a temporary residence permit which we have already shortly presented when referring to Section 5, it is necessary that, under the terms of Section 17a, it is identified a missing equivalence of the foreign professional qualification of the foreigner after the his/her qualification recognition procedure is completed (Neundorf 2018, p. 91). Therefore, depending on the qualification and intended profession to be exercised in a future occasion in Germany, the foreigner has to submit his/her documents to the body which is competent for regulating that specific profession. Once the equivalence of the professional qualification has been established and the foreigner is authorized to practice in Germany or the foreigner has been granted the permission to use the professional title in Germany, it is possible to extend the temporary residence permit for up to 1 year so that the foreigner can seek employment according to the equivalence granted and during this time period the foreigner is allowed to pursue an economic activity (Section 17a (4)) (Neundorf 2018, p. 94).

43

This is the case, for example, of the European Master in Law and Economics (EMLE), where the master student attends to classes in cities such as Hamburg, Rome, Rotterdam, Vienna, among others: https://emle.org/about-emle/. 44 In the version promulgated on 25 February 2008 (Federal Law Gazette I p. 162), last amended Article 10 (4) of the Act of 30.10.2017 (Federal Law Gazette I p. 3618), Section 17a (1), Nos. 1. and 2.

146

5.1.2

5 The Legal and Normative Framework on Migration in Germany and in the. . .

The Rights of Residence of Third-Country Nationals Who Reside in Germany for Economic Purposes

Just as in many other legal orders, to be legally residing in Germany and take employment, it is necessary to own a valid residence permit: “For the purpose of labour migration, the migrant worker typically requires either a residence permit or a settlement permit” (Schubert and Schmitt 2016, p. 38). The general rules on the admission of employees coming from third countries are provided by Section 18. Therefore, if the foreigner cannot be included either in the special provisions from Section 18a on or under Section 21 as self-employed, Section 18 shall prevail. Section 18 determines that a foreign employee shall be admitted into German territory “depending on the requirements of the German economy, according due consideration to the labour market situation and the need to combat unemployment effectively. International treaties shall remain unaffected.”45 Therefore, under the terms of Section 18, a third-country national might be issued a temporary residence permit for the purpose of taking up employment if he/she “has received a specific job offer, meets the general prerequisites for issuing a residence title, and the Federal Employment Agency consents to the employment relationship” (Schubert and Schmitt 2016, p. 39). In order to issue such a permit, it is necessary that the economic interests of the German State fulfilled, such as the need to combat unemployment and the shortage or offer of labor in a specific region. In this sense, “qualified professionals may successfully apply for this kind of residence permit” (Schubert and Schmitt 2016, p. 39). Section 18b provides a permanent settlement permit for graduates of German universities.46 Therefore, the third-country national who has completed his/her studies at a state or at a state-recognized university or at a comparable educational institution (this comparison must be done in accordance with each Länder’s Higher Education Act) shall receive a permanent settlement permit. In this case, the studies must have been successfully completed, meaning that the foreigner has either passed the final exams or has acquired the pursued degree. A considerable part of these studies must have been pursued within German territory and a distance learning study is not considered for the sake of applying for this kind of permanent settlement permit. It is also important that the foreigner has already held a residence title relating to Sections 18, 18a, 19a or 21 for at least uninterrupted 2 years. Therefore, if the student has held a residence title on humanitarian grounds or for family reunion reasons, the permanent settlement permit for graduates of German universities will not be granted. Also, it is necessary that the foreigner has a job which is commensurate with his/her degree (Section 18b 2.). Although this is not defined within the Residence Act, Hailbronner indicates that the criteria for such an evaluation of the 45

In the version promulgated on 25 February 2008 (Federal Law Gazette I p. 162), last amended Article 10 (4) of the Act of 30.10.2017 (Federal Law Gazette I p. 3618), Section 18 (1). 46 As long as the requirements of Section 9 (2), sentence 1, nos. 2 and 4 to 9 are met. Also, Section 9 (2), sentences 2 to 6 shall apply accordingly, as stated by Section 18b 4.

5.1 Germany’s Legal Framework on Migration and Its Responsiveness to the Free. . .

147

adequacy of the job exercised by the foreigner are the requirements for the professional activity, the amount of payment, as well as the expertise, which is generally necessary for performing the job in question, (i.e. the completion of a course of study at a state university or comparable educational institution) (Hailbronner 2017, p. 140). The author also affirms that a subject-specific connection between the studies completed in Germany and the job being exercised is not strictly necessary, as long as the job exercised corresponds to the knowledge acquired in a university or in other higher education institution the immigrant went to in Germany. Also, an internship is not considered for the sake of Section 18b. Moreover, according to the criteria established by Section 18b, in order to acquire this title, the foreigner must have paid compulsory or voluntary contributions into the statutory pension scheme for at least 24 months, or must have furnished evidence of an entitlement to comparable benefits from an insurance or pension scheme or from an insurance company.47 According to Section 18c of the Residence Act, a qualified foreigner can apply for a temporary residence permit in order to seek employment within German territory. Once more, a foreigner owning either a German or a foreign higher education qualification (also recognized or comparable to a German higher education qualification, under the same terms of Section 18b) might apply for such a temporary residence permit. Also, the foreigner must assure his/her subsistence is secure and his/her job to be acquired is commensurate with his/her qualification, under the same terms as in the previous Section (Huber et al. 2017, p. 88). Limited to a period of up to 6 months, this temporary residence permit shall not allow the foreigner to pursue economic activity, while seeking a job. Therefore, we conclude that the foreigner living outside of Germany, whom can be granted the job seeker temporary residence permit, cannot be a person whose subsistence is precarious. Meaning that the foreigner must have a minimum of wealthiness in order to maintain himself/herself in the country while looking for a position. It is also important to stress that this temporary residence permit shall not be extended beyond these already mentioned 6 months, and it may only be issued anew if the foreigner, “after leaving Germany, stayed abroad for at least as long as he stayed in the federal territory on the basis of a residence title pursuant to”48 Section 18c (1). It is important to note that the temporary residence permit for the sake of job seeking may also be granted to foreigners who already reside in Germany. However, in this case, the foreigner must already possess a residence title for the purpose of employment immediately before he/she is granted a temporary residence permit for the sake of job seeking.49 This would avoid, for example, that a highly qualified foreigner doing tourism in 47

In the version promulgated on 25 February 2008 (Federal Law Gazette I p. 162), last amended Article 10 (4) of the Act of 30.10.2017 (Federal Law Gazette I p. 3618), Section 18b 3. 48 In the version promulgated on 25 February 2008 (Federal Law Gazette I p. 162), last amended Article 10 (4) of the Act of 30.10.2017 (Federal Law Gazette I p. 3618), Section 18c (2). 49 In the version promulgated on 25 February 2008 (Federal Law Gazette I p. 162), last amended Article 10 (4) of the Act of 30.10.2017 (Federal Law Gazette I p. 3618), Section 18c (3), ratified by Huber et al. (2017, p. 88).

148

5 The Legal and Normative Framework on Migration in Germany and in the. . .

Germany would start to look for a job in Germany. Important to note that both Sections 18b and 18c serve as complementary measures to the EU Blue Card in order to attract highly qualified employees. Section 19 establishes the cases in which a third-country national can be granted a permanent settlement permit if he/she is highly qualified and once the Federal Employment Agency has granted approval on it.50 The provision defines highly qualified persons in accordance as researches with special technical knowledge or “teaching personnel in prominent positions or scientific personnel in prominent positions”.51 Therefore, it is intended to grant the permanent settlement permit to specialists coming from third countries, who could potentially contribute for Germany’s economic development and who can prove the existence/the offer of a place to work. The list of foreigners who could aim for the permanent settlement permit is not a final and exhaustive list; however, a settlement permit is not automatically considered in the normal case of the need for a highly qualified worker, but only in the case of special circumstances, such as those listed in Section 19 (2). The decision of granting the permanent settlement permit is less discretionary when the general conditions of Section 5 and of Section 19 are both met (Marx 2015, pp. 243–244). Otherwise, once more, the discretion of the German authorities shall prevail. In this context, we stress once again that, in other cases, i.e., in cases in which the foreigner is not highly qualified, he/she will have to meet the prerequisites outlined in Section 9 (2), already presented above, in order to be granted the permanent settlement permit. In this regard, the Residence Act adds special cases based, for example, on EU Directives, such as the Council Directive 2009/50/EC on the conditions of entry and residence of third-country nationals for the purposes of highly qualified employment, which will be explained in details in Sect. 5.2.2. Therefore, we have Sections from 19a to 19d on the issuing of several documents for highly qualified foreigners. In our opinion, among these cited provisions, the Blue Card is the title with greatest impact. Section 19a outlines the EU Blue Card as a new residence and work permit for highly qualified foreigners. As it is intended that the Blue Card facilitates the permanent immigration of these people, making Germany more attractive to them, it “offers privileges for immigrant workers and their families; for example, gaining the right of permanent residence early on allows cardholders to plan a long-term future in Germany” (Schubert and Schmitt 2016, p. 39), especially because the Residence Act does not provide a maximum number of Blue Cards to be issued by Germany. As we are analyzing the Blue Card Directive under the context of EU law in Sect. 5.2.2, we are sticking to Schubert’s and Schmitt’s brief comments on the 50 Or in case it has been determined by statutory instrument pursuant to Section 42 or by intergovernmental agreement that the permanent settlement permit may be granted without approval from the Federal Employment Agency in line with Section 39 and there is reason to assume that integration into the way of life in the Federal Republic of Germany and the foreigner’s subsistence without state assistance are assured, as determined by Section 19 (1). 51 In the version promulgated on 25 February 2008 (Federal Law Gazette I p. 162), last amended Article 10 (4) of the Act of 30.10.2017 (Federal Law Gazette I p. 3618), Section 19 (2) 1. and 2.

5.1 Germany’s Legal Framework on Migration and Its Responsiveness to the Free. . .

149

transposition of the EU Blue Card Directive into German law, affirming that the German legislator “has created a new residence title, which can be issued without a prior labour market test or priority test, and is not subject to quantitative restrictions”; because the requirements to acquire the Blue Card are limited to well-paid foreigners and to foreigners in shortage occupations, this title “cannot replace other residence permits but provides an additional instrument in the competition for qualified employees” (Schubert and Schmitt 2016, pp. 69–70). Until present, the EU Blue Card has limited success: even though it keeps being used by foreigners who meet the needs of occupations shortages, it is being used by universities graduates who seek employment in Germany (Schubert and Schmitt 2016, p. 70). In contrast to the general rule in Section 18, a foreigner has the right to the Blue Card if all conditions of Section 19a are met; therefore, the immigration authorities have no discretionary power to decide on the issuance of the Blue Card (Ponert 2018, p. 22). These basic conditions, according to Section 19a (1), are: (a) that the foreigner holds either a German or a foreign higher education qualification (this last one must be recognized or must be comparable to a German higher education qualification). Also, the foreigner (b) must have at least 5 years of professional experience in order to apply for an EU Blue Card. However, this professional experience must be the result of a comparable qualification which is on the same level of a higher education degree (Ponert 2018, p. 22). Also, the foreigner who applies for the Blue Card must receive “a salary equal to or exceeding that stipulated by the statutory instrument”,52 and must have a job contract or a concrete job offer.53 The German Residence Act also includes some rules for those foreigners within the corporate world and, therefore, qualified foreigners. This is the case of Sections 19b to 19d that have been introduced by Directive 2014/66/EU54 which provides special rights to foreigners from third-countries who spend some time in Germany under the context of an intra-corporate transfer. Due to the Directive, two new residence titles have been introduced to German law: the ICT Card (Section 19b) and the Mobile ICT Card (Section 19d). Moreover, Section 19c sets out rules for the short-term mobility for intra-corporate employees who are being transferred to Germany (Huber et al. 2017, p. 94). In this context, according to the ICT Card provision (Section 19b), an intracorporate transfer is when a third-country national is sent to the German branch of the company he/she works for, and this company does not have its registered office in any of the EU Member States. Also, the ICT Card may be granted to third-country nationals who are sent to the German branch of a company that belongs to a corporate group that he/she works for considering that the company the foreigner

52

Section 19a (1) 3. For more details on the EU Blue Card under German law, see: Ponert (2018, pp. 21–25), and Marx (2015, pp. 244–246). 54 On the conditions of entry and residence of third-country nationals in the framework of an intracorporate transfer (OJ L 157, 27.5.2014, p. 1). This Directive is also briefly mentioned in Sect. 5.2.2 of this book. 53

150

5 The Legal and Normative Framework on Migration in Germany and in the. . .

works for does not have its registered office in any EU Member State (Huber et al. 2017, p. 94). Further conditions for such an employee from a third country to be granted an ICT Card are provided by Section 19b (2) and they include, among others, that the foreigner will work either as a manager or as a specialist in the host entity, that the intra-corporate transfer will exceed 90 days, that the foreigner provides a work contract valid for the duration of the intra-corporate transfer he/she will work as a manager or specialist in the host entity, etc.55 There are also come cases in which the ICT Card shall not be granted, for example, if the foreigner, due to treaties between the EU and third countries, enjoys rights of free movement which are equivalent to those of EU citizens, or if the foreigner is completing a training program as part of his/her studies.56 In some special cases of intra-corporate transfers, it is not necessary that a foreigner acquires any kind of residence title; these are the cases of short-term mobility for intra-corporate transferees outlined by Section 19c of the German Residence Act. In this context, (. . .) a foreigner shall not be required to have a residence title for stays for intra-corporate transfers not exceeding 90 days within a 180-day period, provided the host entity in the other member state has notified the Federal Office for Migration and Refugees that the foreigner intends to take up employment in the federal territory57

For this purpose, it is necessary that the foreigner submits several documents to provide evidence that he/she possesses a valid residence title issued by another member state of the EU, as well as a work contract (Huber et al. 2017, p. 95). These, and other requisites, are outlined in Section 19c58 (1) Nos 1. to 4., as well as in Section 19c (2) and (5). Section 19c (4) establishes under which conditions Germany shall deny the entry and residence of a third-country residence when he/she shall take part in a short-term mobility for intra-corporate transfers. Some important conditions to be cited are Germany’s public interest in expelling the foreigner (Section 19c (4) 5.); the necessity that the foreigner must be as well remunerated as German employees (Section 19c (4) 1.); and, also, any kind of fraud identified in the documents submitted to the German authority (Section 19c (4) 3.) is a reason for not including the foreigner under the privilege provided by Section 19c (1) (Huber et al. 2017, pp. 95–96).

55 According to the German Residence Act in the version promulgated on 25 February 2008 (Federal Law Gazette I p. 162), last amended Article 10 (4) of the Act of 30.10.2017 (Federal Law Gazette I p. 3618), Section 19b (2) and (3). 56 See more restriction cases in the version promulgated on 25 February 2008 (Federal Law Gazette I p. 162), last amended Article 10 (4) of the Act of 30.10.2017 (Federal Law Gazette I p. 3618), Section 19b (5) and (6). 57 In the version promulgated on 25 February 2008 (Federal Law Gazette I p. 162), last amended Article 10 (4) of the Act of 30.10.2017 (Federal Law Gazette I p. 3618), Section 19c (1). 58 We believe that Sections 19c and 19d, just as Sections 20a and 20b have a deburocratization character, once, under the context of a mobility of foreigners for a limited period of time, a visa is “waived” because another Member State has already issued a visa for the same purpose.

5.1 Germany’s Legal Framework on Migration and Its Responsiveness to the Free. . .

151

In reference to Section 19b (1) No. 2., i.e., when a third-country national is sent to the German branch of a company that belongs to the same corporate group and the parent company does not have its registered office in any EU Member State, the so-called Mobile ICT Card can be granted. Section 19d of the Residence Act provides that the Mobile ICT Card, also playing the role of a residence title, shall be granted when the third-country national, within the situation described in 19b (1) No. 2., already possesses a residence title which is valid for the duration of the application procedure for the ICT Card and that has been issued by another EU Member State pursuant to Directive 2014/66/EU (Ponert 2018, pp. 30–31). This kind of residence title is advantageous for those foreigners who fit under the terms of Section 19c (short-term mobility for intra-corporate transferees), but who have already exceeded their 90-days stay. Among other requirements contained in Section 19d (2) Nos 1. to 4., the applicant of a Mobile ICT Card must work as manager, specialist or trainee employee in the host entity, and his/her intra-corporate transfer must exceed 90 days, provided that the foreigner submits a work contract which is valid for the duration of the transfer. It is important to note that, according to Section 19d (5), the Mobile ICT Card shall not be granted if, when taking part in the intra-corporate transfer, the foreigner stays longer in Germany than in any other EU Member State. The Residence Act also stipulates in Section 19d (6) cases in which the application for a Mobile ICT Card may be rejected, such as cases in which the maximum duration of the intra-corporate transfer pursuant to Section 19b (4) has been reached (no more than 3 years, for managers and specialists and no more than 1 year, for trainee employees). Section 20 of the Residence Act is based on Directive (EU) 2016/801 and allows the issuance of a temporary residence permit to those third-country nationals who wish to pursue research in Germany if he/she has concluded an effective admission agreement or a corresponding contract with a research establishment which conducts researches, where he/she can carry out a research project and even take up teaching activities.59 It is also necessary that, in order to acquire this temporary residence permit, the research establishment has undertaken in writing to bear the costs incurred by public bodies up to 6 months after termination of the admission agreement both for the foreigner’s subsistence during an unlawful stay in a member state of the European Union, and for deporting the foreigner.60 It is important to note that the research institution must be recognized by the Federal Office for Migration and Refugees, and that the foreign researcher must conclude a hosting agreement that is sufficient to implement a research project, as long as the researched is financed by a specific minimum net income, which “can be documented by salary, grants, or personal savings” (Schubert and Schmitt 2016, p. 43). The foreigner is not included under the terms of Section 20 if his/her research activities constitute part of doctoral

59

In the version promulgated on 25 February 2008 (Federal Law Gazette I p. 162), last amended Article 10 (4) of the Act of 30.10.2017 (Federal Law Gazette I p. 3618), Section 20 (1) 1. 60 According to the version promulgated on 25 February 2008 (Federal Law Gazette I p. 162), last amended Article 10 (4) of the Act of 30.10.2017 (Federal Law Gazette I p. 3618), Section 20 (1) 2.

152

5 The Legal and Normative Framework on Migration in Germany and in the. . .

studies, as, for this purpose, the foreigner has to apply for one of the cases described in the previous section. By derogation from Section 4 (1), Section 20a also allows short-term mobility. In this case, a foreigner shall not be required to have a residence title for stays in Germany for research purposes which do not exceed 180 days within a 360-day period. For this purpose, the research institution established in Germany, which is hosting the foreigner, must notify the Federal Office for Migration and Refugees that the foreigner intends to carry out part of his/her research activities in Germany (Huber et al. 2017, pp. 100–101). The foreigner must also prove that his/her subsistence is secure, and that he/she possesses a valid residence title for research purposes issued by another Member State under the terms of Directive 2016/801. Moreover, the third-country national has to submit his/her admission agreement/ contract with the research institution located in Germany.61 If the conditions are met, the foreigner can also take up teaching activities within the host research institution (Section 20a (3)). Section 20b of the Residence Act outlines the temporary residence permit for mobile researchers. Beneficiaries of this Section are third-country nationals who reside in Germany for the purposes of research and who stay within the country longer than 180 days but not longer than 1 year (Huber et al. 2017, p. 101). For this purpose, it is necessary that the foreigner holds (besides the necessary identification documents) a residence title issued by another EU Member State under the terms of Directive 2016/801 for the duration of the procedure, as well as an “admission agreement or a corresponding contract concluded with the host research establishment in the federal territory”.62 The mobile researchers are also entitled to carry out teaching activities. Differently from the other residence permits for the admission of foreign employees contained in the Residence Act, there are no EU-based rules on the granting of temporary residence permits to third-country nationals for the purpose of self-employment. Therefore, Section 21 of the Residence Act allows that freelancers, individual entrepreneurs and company founders acquire a temporary residence permit for the sake of exercising their activities (Ponert 2018, p. 34). In this sense, it is possible to grant a foreigner a temporary residence permit as a selfemployed person if (a) an economic interest or a regional need applies, (b) the activity is expected to have positive effects on the economy of the country and (c) the third-country national has either a personal capital or and approved loan which is sufficient to accomplish with his/her business idea.63 In this sense, an economic interest or regional need is indicated by the forecast of a positive economic impact, in 61

According to the German Residence Act in the version promulgated on 25 February 2008 (Federal Law Gazette I p. 162), last amended Article 10 (4) of the Act of 30.10.2017 (Federal Law Gazette I p. 3618), Section 20a (1). 62 In the version promulgated on 25 February 2008 (Federal Law Gazette I p. 162), last amended Article 10 (4) of the Act of 30.10.2017 (Federal Law Gazette I p. 3618), Section 20b (1). 63 In the version promulgated on 25 February 2008 (Federal Law Gazette I p. 162), last amended Article 10 (4) of the Act of 30.10.2017 (Federal Law Gazette I p. 3618), Section 21 (1).

5.1 Germany’s Legal Framework on Migration and Its Responsiveness to the Free. . .

153

respect to the general economic structure or supply situation in the country or region (Ponert 2018, p. 34). These three conditions determined by Section 21 (1) are not cumulative.64 Therefore, it can be possible that an individual entrepreneur, with an initially small business volume yet particularly innovative business idea, can be expected to generate higher sales and create jobs in the future, thusly acquiring a temporary residence permit (Ponert 2018, p. 35). In this context, the potential positive effect of an economic activity of a self-employed third-country national is the improvement of the local, regional or supra-regional economic structure. Also, according to Section 21 (2a), a foreigner who has completed his/her studies at a state or state-recognized university or a comparable educational institution within Germany, or who holds a temporary residence permit as a researcher or scientist (under the terms of Sections 18 or 20), can also acquire the temporary residence permit for self-employment, essentially bypassing the general rules in Section 21 (1). In this context, however, it must be proved, once again, that there is a connection between the knowledge acquired in Germany and the selfemployment (Schubert and Schmitt 2016, p. 43).

5.1.3

Termination of Stay

Just as provided in Chap. 4 of the present book, on the rights and duties of immigrants in Brazil that are obliged to leave the country, we will now present the main cases of compulsory withdrawal of immigrants who find themselves in German territory. Chapter 5 of the German Residence Act provides the grounds and procedures for the compulsory withdrawal of foreigners. We will provide hereunder information on expulsion, removal and deportation of foreigners. It is important to emphasize that, while the expulsion is presented as one of the grounds to establish the requirement to leave the federal territory, the removal and deportation are ways of enforcing the obligation to leave the federal territory. Along with the expulsion measure, the grounds for establishing the requirement to leave the federal territory (contained in Part 1 of Chapter 5) are: the termination of lawful residence through expiration of a foreigner’s residence title65 (Section 51); the revocation by the 64

Also, according to Section 21 (1), the evaluation of the viability and importance of the business idea for the country/region shall be done as follows: “viability of the business idea on which the application is based, the foreigner’s entrepreneurial experience, the level of capital investment, the effects on the employment and training situation and the contribution to innovation and research. The competent bodies for the planned business location, the competent trade and industry authorities, the representative bodies for public-sector professional groups and the competent authorities regulating admission to the profession concerned must be involved in examining the application”, see: German Residence Act in the version promulgated on 25 February 2008 (Federal Law Gazette I p. 162), last amended Article 10 (4) of the Act of 30.10.2017 (Federal Law Gazette I p. 3618). 65 In this brief explanation of Part 1 of Chapter 5, residence title is used as an umbrella term, as it might include, among others, the long-term permit for non-EU citizens, the EU Blue Card, and the ICT Card.

154

5 The Legal and Normative Framework on Migration in Germany and in the. . .

German State of the various possible residence titles (Section 52); and under which basic conditions a foreigner must leave the German territory, such as the lack of a necessary residence title (Section 50). All three ways of obliging a foreigner to leave the German territory (expulsion, removal and deportation) are subject to bans on entry and residence, according to Section 11 of the Residence Act: “(1) A foreigner who has been expelled, removed or deported shall be permitted neither to re-enter nor to stay in the federal territory, nor may he be granted a residence title, even if he is entitled thereto under this Act (ban on entry and residence).”66 In this case, the ban on entry and/or residence will be submitted to a time limit which is imposed ex officio, and which is reliant upon the discretion of the public officer who determines the bans. Also, it is important not to mistake the possible terminations of stay that we will describe in the following lines for the refusal of entry provided by Section 15 of the Residence Act. This Section refers to foreigners67 who wish to enter the federal territory unlawfully and, therefore, whom will be refused entry at the border (Section 15(1)). In this sense, we understand that the foreigner does not even officially enter the German territory, as he/she is sent back right after his/her attempt of entering the country directly at the border. Besides the unlawfulness68 of a foreigner’s entry into German territory, which we consider to be an objective and obligatory reason to justify the refusal of entry, the refusal of entry could also be based on rather subjective reasons,69 that are provided by Section 15 (2) of the Residence Act: (2) A foreigner may be refused entry at the border if

66 In the version promulgated on 25 February 2008 (Federal Law Gazette I p. 162), last amended Article 10 (4) of the Act of 30.10.2017 (Federal Law Gazette I p. 3618). 67 In this case, not included in the concept of foreigner who has his/her entry into Germany refused are nationals of other Member States of the European Union (EU citizens) and their dependents, under the terms of Section 1 of Freedom of Movement Act/EU of 30 July 2004 (Federal Law Gazette I p. 1950, 1986), last amended by Article 6 of the Act of 21 December 2015 (Federal Law Gazette I p. 2557), available via https://www.gesetze-im-internet.de/englisch_freiz_gg_eu/ englisch_freiz_gg_eu.html#p0014. 68 The cases of unlawful entry are provided by Section 14 of the Residence Act and are basically: the lack of passport of a passport substitute; the lack of a residence title required in accordance with Section 4; the lack of the necessary visa pursuant to Section 4 upon entry, but obtained it by threat, bribery or collusion or by furnishing incorrect or incomplete information, for which reason it is revoked or annulled retrospectively; or when the foreigner is not permitted to enter Germany (unless there is a temporary entry permit allowing it so) under the terms of Section 11 (1), (6) or (7), that relate to the possibilities of the German State has of banning the entry and residence of a foreigner due to expulsion, removal or deportation. 69 These reasons are also detailed by The General Administrative Regulation to the German Residence Act (our free translation from Allgemeine Verwaltungsvorschrift zum Aufenthaltsgesetz), which is available via http://www.verwaltungsvorschriften-im-internet.de/pdf/BMI-MI320091026-SF-A001.pdf. As an example, we cite No. 15.2.2.0, that affirms that the suspicion mentioned in Section 15 (2) sentence 2 must be based on concrete evidence which we believe to still be a criteria with a wide possibility of interpretation.

5.1 Germany’s Legal Framework on Migration and Its Responsiveness to the Free. . .

155

1. there is a public interest in expelling the foreigner, 2. there is a well-founded suspicion that the foreigner does not intend to stay in the country for the stated purpose, 2a. he only possesses a Schengen visa or is exempted from the visa requirement for a shortterm stay and intends to pursue an economic activity counter to Section 4 (3), sentence 1 or 3. he does not fulfil the conditions for entry into the territory of the contracting parties in accordance with Article 6 of the Schengen Borders Code.70

It is important to note that the refusal of entry is, in general, proceeded by sending back the foreigner back to the State he/she left, previous to entering Germany’s territory. Nevertheless, refusing the entry of a foreigner into Germany by sending him/her back to a transit state (i.e, the state in which the foreigner did not leave the transit area) could be possible if the transit state agrees with readmission upon prior request by the border authority.71

5.1.3.1

Expulsion

Expulsion72 under German law is provided by the Residence Act in Sections 53 to 56a.73 In a few words, a foreigner shall be expelled from the German territory if he/she is considered to be a danger to the interests of the Federal Republic. The public interests meant in the law could be not only the maintenance of public safety and order and of the free democratic basic order, but also any other significant interest defended by Germany. Using “other significant interests” of the country as a criteria for justifying the expulsion of a foreigner represents a criteria that allows for a wide margin of interpretation that might lead to arbitrariness. As stated by Section 53(1) of the Residence Act: 70 In the version promulgated on 25 February 2008 (Federal Law Gazette I p. 162), last amended Article 10 (4) of the Act of 30.10.2017 (Federal Law Gazette I p. 3618). 71 According to No. 15.0.5.1 of The General Administrative Regulation to the German Residence Act (our free translation from Allgemeine Verwaltungsvorschrift zum Aufenthaltsgesetz) is available via http://www.verwaltungsvorschriften-im-internet.de/pdf/BMI-MI3-20091026-SF-A001.pdf. 72 The conditions for expulsion and/or right to stay in German territory list in Section 53(1), (2), (3), (4); Section 54; Section 55 and Section 56 figures as a mere illustrative and not an exhaustive list, see: Huber et al. (2017, p. 295). 73 Regarding Sections 56 and 56a of the Residence Act, these refer to the monitoring of foreigners who are subject to an expulsion measure. Among other obligations, foreigners subject to expulsion under the terms of Section 56(1) Nos. 2 to 5: must report to the police authorities; have their residence restricted to the district of the foreigners authority concerned; “may also be obliged not to contact specific persons or persons in a specific group, not to keep company with them, not to employ them, train or house them and to refrain from using certain means of communication or communication services (. . .)”, as stated by Section 56 and its paragraphs. In this context, foreigners subject to geographic restrictions as mentioned before and/or to contact bans may be required to carry technical devices, i.e., an electronic location monitoring, in the name of prevention of serious threats to internal security or to life and limb of others, as it can be understood under Section 56a of the Residence Act.

156

5 The Legal and Normative Framework on Migration in Germany and in the. . .

Section 53 Expulsion (1) A foreigner whose stay endangers public safety and order, the free democratic basic order or other significant interests of the Federal Republic of Germany shall be expelled if, after weighing the interests in the foreigner’s departure against the foreigner’s individual interests in remaining in the federal territory, which is to be conducted taking account of all the circumstances of the particular case, there is an overriding public interest in the foreigner leaving.74

However, this margin of interpretation could be slightly relativized. In this case, interest of the State shall be weighed in accordance with the foreigner’s individual interest in remaining within German territory, considering the foreigner’s particular circumstances. The grounds for a foreigner’s expulsion are the ones provided by Section 53(2) of the German Residence Act: (2) When weighing the interests pursuant to subsection 1 in accordance with the circumstances of particular case, consideration shall in particular be given to the length of the foreigner’s stay, his personal, economic and other ties in the federal territory and in the country of origin or in another state prepared to receive him, the consequences of expulsion for his dependants and domestic partner, as well as whether the foreigner has abided by the law.75

Once more, we find public safety and public order as a reason for the termination of an immigrant’s stay. It is important to note that these provisions of the German Residence Act are based on the rule of law and general constitutional principles which govern administrative actions, including their meanings in accordance with the principles of police law (Huber et al. 2017, p. 297). Needless to say that in relation to cultural differences between Germans and foreigners and to other forms of life and behavioral and contact patterns that may exist in cases related to migration, it is important to warn against a possible “instrumentalization” of the concept of public order that might arise from the interpretation of the Residence Act, as this might lead to the lack of respect of human beings’ individual characteristics (Huber et al. 2017, p. 297). Exceptions on the expulsion of some specific foreigners are possible “only if the personal conduct of the person concerned currently represents a serious threat to public safety and order which affects a fundamental interest of society and the expulsion is essential to protect that interest”.76 These specific foreigners are those people who have been recognized as entitled to asylum, who enjoy the legal status of a foreign refugee, who possess a travel document issued by an authority in the Federal Republic of Germany in accordance with the Agreement of 28 July 1951 on the Legal Status of Refugees, who are entitled to a right of residence in accordance

74

In the version promulgated on 25 February 2008 (Federal Law Gazette I p. 162), last amended Article 10 (4) of the Act of 30.10.2017 (Federal Law Gazette I p. 3618). 75 In the version promulgated on 25 February 2008 (Federal Law Gazette I p. 162), last amended Article 10 (4) of the Act of 30.10.2017 (Federal Law Gazette I p. 3618). 76 Section 53(3) of the German Residence Act.

5.1 Germany’s Legal Framework on Migration and Its Responsiveness to the Free. . .

157

with the EEC/Turkey Association Agreement, or who possess an EU long-term residence permit. Something that also limits the power of expulsion of the German State refers to Germany’s public interest in expelling a foreigner, already cited by Section 53(1), which must be a particularly serious one. All the particularly serious public interests of the German State which could be used in order to justify the expulsion of a foreigner are contained in Section 54(1) of the German Residence Act, whereas Section 54(2) contains the cases in which there is a serious interest in expelling the foreigner within the meaning of Section 53 (1). Section 54 defines in a relatively extensive catalogue of facts the interest in expulsion to be taken into account in the official decision-making process; these facts are mostly related to the commitment of a crime or criminal offence, and the foreigner in question might or might not be already convicted of that crime in order to be expelled. When convicted of a crime, an expulsion order is issued. In this case of conviction, though, the immigration authority does not have to check whether this specific crime has been committed or not; the judgement on the case is sufficient for determining the foreigner’s expulsion (Huber et al. 2017, p. 303). Therefore, the commission of a crime does not always lead to an automatic expulsion of the foreigner. On the other hand, Section 55 of the Residence Act establishes situations in which there is an individual interest of the foreigner in remaining within German federal territory (the so-called Bleibeinteresse). These interests are divided into particularly serious individual interests (Section 55(1)),77 which are those related to foreigners who have strong connections to Germany in the sense of considerable consolidation of his/her residence in the country (Huber et al. 2017, p. 307), and serious individual interest (Section 55(2)),78 which refers to foreigners whose stay in the country is not 77

(1) There shall be a particularly serious individual interest in remaining in the federal territory (Bleibeinteresse) within the meaning of Section 53 (1) where the foreigner 1. possesses a permanent settlement permit and has lawfully resided in the federal territory for at least five years, 2. possesses a temporary residence permit and was born in the federal territory or entered the federal territory as a minor and has lawfully resided in the federal territory for at least five years, 3. possesses a temporary residence permit, has lawfully resided in the federal territory for at least five years and cohabits with a foreigner as designated in nos. 1 and 2 as a spouse or in a registered partnership, 4. cohabits with a German dependant or domestic partner in a family unit or a registered partnership, exercises his rights of care and custody for a minor, unmarried German or exercises his right of access to that minor, 5. enjoys the legal status of foreigner entitled to subsidiary protection within the meaning of Section 4 (1) of the Asylum Act or 6. possesses a temporary residence permit pursuant to Section 23 (4), Sections 24, 25 (4a), sentence 3, or pursuant to Section 29 (2) or (4). 78 (2) There shall be a serious individual interest in remaining within the meaning of Section 53 (1) in particular where

1. the foreigner is a minor and possesses a temporary residence permit, 2. the foreigner possesses a temporary residence permit and has resided in the federal territory for at least five years,

5 The Legal and Normative Framework on Migration in Germany and in the. . .

158

so solidified but who are firmly rooted in the country (Marx 2015, p. 710). Whereas the cases listed as being cases where the foreigner has particularly serious individual interests to stay in the country are numerus clausus, it is important to note that the serious individual interests listed in Section 55(2) of the law are mere illustrative ones (Marx 2015, pp. 702 and 710).

5.1.3.2

Removal

Section 57 of the Residence Act determines the removal of foreigners from the German territory to any other state which is not the foreigner’s country of origin (Huber et al. 2017, p. 311).79 The removal is an administrative executive measure which does not require a written order but can be executed immediately as a real act.80 Unlike the refusal of stay (Section 15 of the Residence Act), the removal is not an instrument to prevent illegal residence, but, just as the deportation, which will be detailed in the next section, removal represents a measure of termination of stay/ residence. This is why removal depends on previous entry on a state’s territory (Hailbronner 2017, p. 359). The removal is, therefore, a way of complementing the refusal of entry, contained in Section 15, as it allows the immediate and facilitated removing of the foreigner who unlawfully entered German territory. In this context, according to Section 57(1) of the Residence Act, a foreigner shall be removed from the German territory once he/she unlawfully enters the federal territory by crossing the border. An unlawful entry is determined by Section 14 of the Residence Act: Section 14 Unlawful entry; exceptional visa (1) The entry of a foreigner into the federal territory shall be unlawful if he 1. does not possess a required passport or passport substitute in accordance with Section 3 (1), 2. does not possess the residence title required in accordance with Section 4, 2a. does possess the necessary visa pursuant to Section 4 upon entry, but obtained it by threat, bribery or collusion or by furnishing incorrect or incomplete information, for which reason it is revoked or annulled retrospectively, or

3. the foreigner exercises his rights of care and custody for an unmarried minor residing lawfully in the federal territory or exercises his right of access to that minor, 4. the foreigner is a minor and his parents or parent holding rights of care and custody reside or resides lawfully in the federal territory, 5. consideration is to be given to the interests or the well-being of a child or 6. the foreigner possesses a temporary residence permit pursuant to Section 25 (4a), sentence 1. 79 Under German law, only with the institute of deportation it is possible to take a foreigner back to his/her country of origin. 80 Funke & Kaiser, GK-AufenthG, § 57, margin number 14 and following pages apud Hailbronner (2017, p. 359).

5.1 Germany’s Legal Framework on Migration and Its Responsiveness to the Free. . .

159

3. is not permitted to enter the federal territory in accordance with Section 11 (1), (6) or (7) unless he possesses a temporary entry permit in accordance with Section 11 (8). (2) The authorities charged with policing cross-border traffic may issue exceptional visa and passport substitutes.81

It is to note though that, as a general rule, the unlawful entry of a foreigner can be identified according to his/her documentation status.82 What is considered for the removal in this sense are the external borders as defined in the Schengen Borders Code.83 Therefore, borders between German Federal States are not considered for the purpose of removal, as these are German internal borders. Therefore, the removal measure can be applied in cases of foreigners unlawfully crossing the external border through air or sea and being restrained immediately after his/her crossing. With support of judicial cases, Huber et al. (2017, p. 312) affirm that, in order to proceed with the removal of a foreigner, a prior written order or a special announcement is not required. Nevertheless, it is possible to place the foreigner under arrest, if necessary, under the terms of Sections 62 and 62a of the Residence Act, sections dedicated to custody while awaiting deportation. Therefore, while awaiting for the removal, the foreigner “shall not be permissible if the purpose of the custody can be achieved by other, less severe means which are also sufficient”; also, the detention of the foreigner to be removed “shall be limited to the shortest possible duration.”84 However, foreigners should be protected from removal in exceptional cases. According to No. 57.1.7 of the General Administrative Regulation to the German Residence Act, restrictions to removal are possible when applying the principle of proportionality, on humanitarian grounds, but also in cases that involves particular public interest. Also, in cases where the travel document (e.g. exceptional visas or papers equivalent to passports) could be issued at the border, a removal is generally not necessary. In these cases, if the foreigner is not removed, the German border

81

In the version promulgated on 25 February 2008 (Federal Law Gazette I p. 162), last amended Article 10 (4) of the Act of 30.10.2017 (Federal Law Gazette I p. 3618). 82 Important to note that, according to No. 57.1.2 from the General Administrative Regulation to the German Residence Act (our free translation from Allgemeine Verwaltungsvorschrift zum Aufenthaltsgesetz), if the foreigner wishes to enter the country without a valid passport but if he/she possesses a valid residence permit, this foreigner shall not be removed from German territory. The General Administrative Regulation to the German Residence Act is available via http://www.verwaltungsvorschriften-im-internet.de/pdf/BMI-MI3-20091026-SF-A001.pdf. 83 Of 9 March 2016 on a Union Code on the rules governing the movement of persons across borders (Schengen Borders Code). OJ L 77, 23.3.2016, pp. 1–52. Originally known, in 2006, as “Regulation (EC) No 562/2006 of the European Parliament and the Council of 15 March 2006 establishing a Community Code on the rules governing the movement of persons across borders (Schengen Borders Code)”. Out of this Schengen Borders Code are Denmark and Ireland. Non-EU Member States such as Iceland, Norway, Switzerland and Lichtenstein are part of the Schengen Borders Code. 84 Section 62(1) of the German Residence Act.

160

5 The Legal and Normative Framework on Migration in Germany and in the. . .

authority informs the responsible German immigration authority, which decides on the migratory status of the foreigner.85

5.1.3.3

Deportation

Deportation under German law is provided by the Residence Act in Sections 58 to 61.86 The deportation detention is provided under Sections 62, 62a and 62b.87 Among the enforcement options to leave the federal territory, the deportation order is said to be the most used one (Marx 2015, p. 621). Deportation is the compulsory enforcement that a foreigner has to leave the country. The consequence of this compulsory enforcement is the forced removal of the foreigner from the German territory (Hailbronner 2017, p. 365). Therefore, in accordance with Section 58(1), deportation must occur (a) when the requirement to leave the federal territory is enforceable, (b) when no period has been granted until the foreigner’s departure or when such a period has already expired,88 and (c) when, after being obliged to leave the country, the foreigner does not fulfill it voluntarily or the supervision of the foreigner’s departure89 appears to be necessary on grounds of public security and order. According to Hailbronner (2017, p. 365), deportation under German law is a measure of administrative enforcement through the exercise of an immediate coercion. The reasons why the German State could enforce the deportation of a foreigner are provided by Section 58(2) (numerus clausus). Besides having unlawfully entered the German territory, the Residence Act provides as a reason for deportation if the foreigner: has not yet applied for initial granting of the necessary residence title or has not yet applied for its extension or, despite an application having been submitted, the residence is not deemed to be permitted pursuant to Section 81 (3) or the residence title is not deemed to remain in force pursuant to Section 81 (4) or

85 The General Administrative Regulation to the German Residence Act (our free translation from Allgemeine Verwaltungsvorschrift zum Aufenthaltsgesetz) is available via http://www. verwaltungsvorschriften-im-internet.de/pdf/BMI-MI3-20091026-SF-A001.pdf. 86 Section 60 of the German Residence Act is dedicated to the prohibition of deportation under the context of the Convention of 28 July 1951 relating to the Status of Refugees (Federal Law Gazette 1953 II, p. 559), also known as the Geneva Convention. These provisions are, therefore, related to the protection of refugees within the German territory and are not included in the scope of this work. 87 These Sections will not be scrutinized in the present work, as it provides detailed information on the custody awaiting deportation. It is important to mention though that the imprisonment of foreigners to be deported shall not be permissible if the purpose of the custody can be achieved by other less severe means, which are also sufficient. When necessary, the detention shall be limited to the shortest possible duration. (Section 62(1) of the German Residence Act). 88 The notice of intention to deport a foreigner is called deportation warning and it is ruled by Section 59 of the Residence Act. The general rule is to grant the foreigner between 7 and 30 days for his/her voluntary departure. 89 For the cases of supervision of deportation see Section 58(3) of the German Residence Act.

5.1 Germany’s Legal Framework on Migration and Its Responsiveness to the Free. . .

161

3. becomes obliged to leave the federal territory by virtue of a ruling on his return reached by another member state of the European Union pursuant to Article 3 of Council Directive 2001/40/EC of 28 May 2001 on the mutual recognition of decisions on the expulsion of third country nationals (OJ L 149, 2.6.2001, p. 34), provided that the ruling concerned is recognised by the competent authority.90

There are cases in which the deportation shall be immediately enforceable, as determined by Section 58a of the Residence Act which provides the rules for the deportation order. According to this provision, the supreme authority of the Länder “may issue a deportation order for a foreigner without a prior expulsion order based on the assessment of facts, in order to avert a special danger to the security of the Federal Republic of Germany or a terrorist threat.”91 As previously affirmed, this deportation order shall be immediately enforceable, and it is not necessary for the German State to issue any intention to deport. The implementation of this so-called deportation order was thought so that any kind of delay in dangerous situations can be avoided, for example, when terror situations are involved (Hailbronner 2017, p. 392). In this sense, it is possible to affirm that the deportation order is a special procedure for termination of residence which is characterized by a special acceleration of the deportation process with very limited legal protection of the foreigner, showing once more Germany’s concerns when trying to fight against terrorism. On the other hand, there are cases in which deportation could also be suspended, and in which, consequently, the presence of the foreigner within the country is tolerated (the so-called Duldung). In this regard, Section 60a(1) provides the suspension of deportation based on international law or on humanitarian grounds or to safeguard the political interests of the Federal Republic of Germany, the supreme Land authority may order the deportation of foreigners from specific states or of categories of foreigners defined by any other means to be suspended in general or with regard to deportation to specific states for a maximum of three months.92

Apart from these reasons contained in Section 60a (1) for suspension of the deportation of specific groups/categories of foreigners, it is also possible to “tolerate” the presence of a foreigner within German territory in individual cases (Section 60a (2) to (2b) (Huber et al. 2017, p. 325). Under the context of Section 60a (2), first sentence, the suspension of the deportation shall be considered for as long as deportation is impossible in law or in fact and no temporary residence permit is granted to the foreigner. Therefore, deportation of a foreigner is legally impossible:93 (a) in the cases of prohibition of deportation that are provided by Section 60 of the 90

In the version promulgated on 25 February 2008 (Federal Law Gazette I p. 162), last amended Article 10 (4) of the Act of 30.10.2017 (Federal Law Gazette I p. 3618), Section 58(3). 91 In the version promulgated on 25 February 2008 (Federal Law Gazette I p. 162), last amended Article 10 (4) of the Act of 30.10.2017 (Federal Law Gazette I p. 3618), Section 58a (1). 92 In the version promulgated on 25 February 2008 (Federal Law Gazette I p. 162), last amended Article 10 (4) of the Act of 30.10.2017 (Federal Law Gazette I p. 3618), Section 60a (1). 93 According to No. 60a.2.1.1.1 of the General Administrative Regulation to the German Residence Act (our free translation from Allgemeine Verwaltungsvorschrift zum Aufenthaltsgesetz), which is

162

5 The Legal and Normative Framework on Migration in Germany and in the. . .

German Residence Act and that are related to the impossibility of deportation because of unfavorable conditions to be found in the country the foreigner should be deported to (zielstaatsbezogenes Abschiebungshindernis);94 (b) there is an internal obstacle to the enforcement of the deportation, such as health-related dangers (Section 60 (5) and (7), i.e. health risks that might arise solely as a result of deportation and not because of the specific circumstances to be found in the country the foreigner should be deported to); (c) the Public Prosecutor’s Office or the Witness Protection Service has not yet given or has refused to give an agreement on deportation as required under Section 72 (4); (d) the deportation is prohibited by a judge’s order (Marx 2015, p. 463). Also, the suspension of deportation of a foreigner might be justified by reasons of fact: (a) due to inability to travel in case of illness; (b) in case of continuous lack of passport if, according to the experience of the Immigration Office, a deportation without a passport or without a German passport replace document is not possible or an attempt while deporting the foreigner to a specific country has failed; (c) in case the existing transport routes for deportation are interrupted; (d) if the other necessary documents (e.g. transit permit, visa) are not available or the suitable means of transportation of the foreigner is not yet available; (e) if the foreigner is a stateless person or whose admission has been refused by the country of origin (e.g., after an unsuccessful attempt at deportation).95 It is essential to have in mind that the suspension of deportation does not mean that there is no obligation for the foreigner to leave Germany or there is no enforceability of the deportation order. The suspension of deportation only postpones the obligation to leave the German territory (Hailbronner 2017, p. 393). In this sense, the suspension of deportation does not provide the foreigner with a residence permit, but it allows a temporary official tolerance of the residence of that foreigner despite the fact that the foreigner does not own the right of residing in Germany. Therefore, the foreigner continues to be obliged to leave the country (Section 60a (3)). As a general rule, besides being legally prohibited from pursuing an economic activity within German territory,96 another important legal consequence of the

available via http://www.verwaltungsvorschriften-im-internet.de/pdf/BMI-MI3-20091026-SFA001.pdf. 94 Provided by Section 60(1) or (2) to (5) or (7) of the German Residence Act. 95 According to No. 60a.2.1.2 of the General Administrative Regulation to the German Residence Act (our free translation from Allgemeine Verwaltungsvorschrift zum Aufenthaltsgesetz), which is available via http://www.verwaltungsvorschriften-im-internet.de/pdf/BMI-MI3-20091026-SFA001.pdf. 96 Determined by Section 60a(6) of the Residence Act, only in specific cases, as follows: A foreigner whose deportation has been suspended may not be permitted to pursue an economic activity if 1. he has entered the country to obtain benefits under the Asylum Seekers Benefits Act, 2. measures to terminate his stay cannot be carried out for reasons for which he is responsible or 3. he is a national of a safe country of origin according to Section 29a of the Asylum Act and an asylum application which he filed after 31 August 2015 has been denied.

5.1 Germany’s Legal Framework on Migration and Its Responsiveness to the Free. . .

163

institution of the Duldung is that the foreigner does not commit an offence/or a crime when staying in the territory of the Federal Republic without a residence title while deportation from German territory is still suspended (Hailbronner 2017, p. 394). Section 60a(4) provides that the foreigner who has his/her deportation suspended shall receive a certificate which confirms this suspension. This certificate is strictly declaratory and it only proves that an existing obligation to leave the country is not enforced through coercive measures until the reasons for the suspension do not longer exist (Huber et al. 2017, pp. 325–326).97 Lastly, it is important to mention that Section 61(1) of the Residence Act determines that “the stay of a foreigner who is enforceably required to leave the federal territory shall be restricted in geographic terms to the territory of the Land concerned”.98 The geographical restriction of a foreigner to be deported (which, in some cases, can be restricted even to the administrative district of the most recently responsible foreigners authority, as stated by Section 61(1a)) serves to avoid unequal burdens on the social assistance authorities (Marx 2015, p. 471). Also, the foreigner to be deported might also suffer not only a geographical restriction, but also a residence restriction, as enshrined in Section 61(1d): A foreigner who is enforceably required to leave the federal territory and whose subsistence is not ensured shall be obliged to take up his habitual residence at a specific place (residence restriction). If the foreigners authority does not order any other measure, this shall be the place of residence at which the foreigner was residing when the decision to temporarily suspend deportation was taken. The foreigners authority may amend the residence restriction ex officio or at the foreigner’s request; account shall be taken of the household community of family members or of other humanitarian grounds of comparable importance. The foreigner may temporarily leave the place determined in the residence restriction without obtaining permission.99

Foreigners shall in particular be responsible for reasons in accordance with sentence 1 no. 2 if they themselves brought about the obstacle to deportation by their own deceit concerning their identity or nationality or by furnishing false particulars. Nevertheless, Section 18a defines the cases in which a temporary residence permit for the purpose of employment can be granted to qualified foreigners whose deportation has been suspended. In this sense, the employment the foreigner whose deportation has been suspended must be commensurate with his/her vocational qualification if the Federal Employment Agency has granted approval in accordance with Section 39. Also, some other conditions must be fulfilled, such as the command of German language, sufficient living space at the foreigner’s disposal, and also the absence of any links between the foreigner and extremist or terrorist organizations, among others, which are provided by Section 18a(1) of the Residence Act. 97 See also: Marx (2015, pp. 474–475). 98 In the version promulgated on 25 February 2008 (Federal Law Gazette I p. 162), last amended Article 10 (4) of the Act of 30.10.2017 (Federal Law Gazette I p. 3618). These restriction may be waived in order to preserve family unity, for example, or to attend a school, see Section 61 (1) sentences 2 and 3. 99 In the version promulgated on 25 February 2008 (Federal Law Gazette I p. 162), last amended Article 10 (4) of the Act of 30.10.2017 (Federal Law Gazette I p. 3618). This special rule is, though, numerus clausus, as affirmed by Huber et al. (2017, p. 342).

164

5 The Legal and Normative Framework on Migration in Germany and in the. . .

It is to observe, though, that these restrictions provided by Section 61 (1) to (1d) might not be the only ones, as further conditions and requirements of a foreigner whose deportation has been suspended may be imposed by the German immigration authority, if these restrictions are in accordance with the German Administrative Procedure Act (Verwaltungsverfahrensgesetz) (Huber et al. 2017, p. 342).

5.2

European Union Law and the Free Movement of People

In this section, the European Union’s law on migration will be presented and discussed. Firstly, we will focus on the legal treatment that the EU gives to its citizens when they decide to move within the EU borders. Subsequently, we will present and analyze the legal treatment given to the freedom of movement of thirdcountry nationals within the EU borders. After all, we agree with Boswell and Geddes when they affirm that “the patterns of population movement in the EU cannot be understood without reference to people moving between EU states as well as those moving from outside the EU” (Boswell and Geddes 2011, p. 176). In this regard, we stress that, as it is not an object of study of the present work and even though it is an urgent matter in the EU’s agenda, refugee policies and issues will not be brought into discussion, as already explained in the beginning of this work. Furthermore, we are aware that, differently from MERCOSUL, the legal basis of the European Union policy in the field of migration is vast and complex. As the amount of documents and legal sources dealing with a common migration policy is considerable, in this section we will focus on the higher hierarchical level of European Union legal sources (i.e., on some of the Treaties on the European Union), as well as on milestone directives on migration that facilitate the free movement and the settlement of people within the region (both of EU citizens and third country nationals).

5.2.1

The European Union Citizenship and the Freedom of Migration of EU Citizens Within the EU Borders

While MERCOSUL’s origin was based on a counterpoint to the possibility of growth of the Free Trade Area of the Americas (FTAA) and to the significant influence from the United States of America in the region, the European Union figures as a supranational structure developed from devastated European countries in the 1950s (Fernandes and Silva 2013, p. 362). Since its existence, the European Community defined as one of its principles the free movement of persons. The Treaty of Rome, in 1958, which established the European Economic Community, already provided the workers of the Community with free movement within the region,

5.2 European Union Law and the Free Movement of People

165

ensuring the abolition of discrimination based on nationality between the workers of Member States in regard of any conditions of work and employment: WORKERS ARTICLE 48 1. Freedom of movement for workers shall be secured within the Community by the end of the transitional period at the latest. 2. Such freedom of movement shall entail the abolition of any discrimination based on nationality between workers of the Member States as regards employment, remuneration and other conditions of work and employment. 3. It shall entail the right, subject to limitations justified on grounds of public policy, public security or public health: (a) to accept offers of employment actually made; (b) to move freely within the territory of Member States for this purpose; (c) to stay in a Member State for the purpose of employment in accordance with the provisions governing the employment of nationals of that State laid down by law, regulation or administrative action; (d) to remain in the territory of a Member State after having been employed in that State, subject to conditions which shall be embodied in implementing regulations to be drawn up by the Commission.100

Even though these provisions were strictly related to the free movement of the workforce within the region, they still meant a step forward regarding migration regulation. Nevertheless, the effective movement of workers within the European Community did not take place in this period as expected, since the clauses cited above did not have a supranational enforcement, so that the Member States themselves were responsible for dealing with conflicts related to the freedom of movement of workers within the region (Camargo 2010, p. 494). Later on, the Maastricht Treaty (or the Treaty on the European Union)—signed on 7 February 1992 and entered into force on 1 November 1993—formalized the free territorial mobility by extending the right of free movement to all European Union citizens, irrespective of whether they are economically active or not (Boswell and Geddes 2011, p. 188). The Maastricht Treaty represented a new and important development for the European integration process: a more consistent statute has been given to EU citizens (de Campos and de Campos 2010, p. 57) and EU citizenship was defined as a constituent part of the EU. In Recchi’s words (2015, p. 26), the Maastricht Treaty represented “the culmination of a long process towards the full accomplishment of free cross-border mobility by officially introducing the status of European citizen”. In this context, we must cite Hailbronner when he criticizes the Maastricht Treaty by affirming that the treaty did little more than establishing the concept of the European Union’s citizenship, “providing very little substance on how, if at all, it (. . .) [would] impact on the law of the European Union – despite its obvious relations to, and implications for, the law pertaining to freedom of movement” (Hailbronner 2007, p. 313). The

100

The Treaty of Rome is available via https://ec.europa.eu/romania/sites/romania/files/tratatul_de_ la_roma.pdf.

166

5 The Legal and Normative Framework on Migration in Germany and in the. . .

author argues that several aspects and impacts of the EU’s citizenship were later on determined by the European Court of Justice, which, on its jurisprudence, fleshed out the legal implications of Union citizenship. The author states that, if, at first, through the simple interpretation of the wording of the Maastricht Treaty it can be indicated “that the concept of Union citizenship as such will not change the legal content of the existing rights of free movement of Union citizens”, the European Court of Justice, on the other hand, “made clear very early on that it is not willing to accept a de lege lata description of Union citizenship as a mere restatement of existing rights” (Hailbronner 2007, p. 314). Hailbronner, in the cited work, argued that the Union citizenship as such did not change anything in terms of the responsibility of the Member States for example ‘for the basic welfare needs of ‘their’ populations”, so that the European Court of Justice had to use the new concept of citizenship enshrined in the Maastricht Treaty in order to justify access of European citizens to social benefits (Hailbronner 2007, p. 316). Nevertheless, we believe that these arguments were overcome since the existence of Lisbon Treaty in 2009 and the EU Charter of Fundamental Rights, once the entry into force of the Treaty and the EUCFR expanded the legal basis to true European citizenship. Still referring to the EU citizenship, we can affirm that it consists of an uncommon and hybrid type of citizenship:101 EU citizens are nationals of an EU Member State and the “individual membership in the EU polity is determined neither by an EU birthright, nor by residence in the EU, but is derivative of Member State nationality” (Bauböck 2014, p. 757). Even though the Member States lay out through their laws if a person owns the nationality of that state or not, the acquisition and loss of EU citizenship is determined by the Union, from which the right to free movement inside the territory of the Union derives. In this context, “a person is a citizen of the Union if and only if she is a citizen of a member State. The idea of replacing national citizenship is explicitly rejected” (Chalmers et al. 2010, p. 445). In Kostakopoulou’s words: “European citizenship has not created a direct legal bond between the individual citizens and the Union, since the decisive qualifying factor remains tenure or acquisition of member state nationality” (Kostakopoulou 1998, p. 640).102 In concrete terms, European citizenship consists of “a set of rights to which the citizens of every EU member state are automatically entitled” (Recchi 2015, p. 26). These rights are: (a) the right to vote and stand as candidates in elections to the European Parliament and in local elections in the member state wherein they reside, regardless of their nationality; (b) the right to petition the European Parliament and appeal to the EU Ombudsman; (c) the right to diplomatic protection by any other member state of the EU in third countries where their own

101

It was through the Treaty of Maastricht that the definition of the European citizenship was defined on Article 17 of the Treaty Establishing the European Community, providing that: “Citizenship of the Union is hereby established. Every person holding the nationality of a Member State shall be a citizen of the Union. Citizenship of the Union shall complement and not replace national citizenship”, see: Hailbronner (2007, p. 313). 102 One of the consequences of the inexistence of the direct legal bond between the individual citizens and the Union are movements such as the BREXIT.

5.2 European Union Law and the Free Movement of People

167

country does not have diplomatic representation; and (d) the right to free movement and residence throughout the territory of the EU (Recchi 2015, pp. 26–27).

Fact is that the application of most of the EU citizenship rights are taken into consideration when EU citizens migrate (Chalmers et al. 2010, p. 447), so that we can affirm that the free movement and residence of EU citizens are the rights that quintessentially represent the meaning of EU citizenship. In Recchi’s opinion, the freedom of movement and residence, as rights to be immediately accessible by EU citizens, figure as rights that influence people’s life opportunities. This is because the free movement regime “is the true keystone of the edifice of European citizenship” (Recchi 2015, p. 27). By conferring rights, security, and equality of treatment to EU citizens, nationals of the Member States are encouraged not to be static, but to become migrants, actively participating in transnational relations and networks (Carrera 2009, p. 38). However, the fundamental right of EU citizens to move and reside freely in the Union might also be seen in a more skeptical way. Boswell and Geddes, citing Shaw’s studies on EU citizenship, affirm that the new codification of the EU citizens’ rights enshrined in the Maastricht Treaty “implies a tension between the EU’s economic and political-cultural aspirations”; this is because the EU “was originally conceived as an economic arrangement, with mobility introduced to enhance the efficiency of labour markets and productivity”; in this sense, the Treaty “implied the aspiration to forge a common political identity, mimicking concepts of citizenship characteristic of national categories of membership” (Shaw apud Boswell and Geddes 2011, p. 188). Considering that Boswell and Geddes’ critiques on the EU citizenship differ from Hailbronner in essence (Hailbronner’s is purely legal, while Boswell and Geddes’ contains a rather political content), we cannot deny the importance of citizenship and the rights that derive from it. After all, even if behind a false political-cultural discourse, the rights that came along with the EU’s citizenship opened the way for the development of other policies related to migration (including those referred to a third-country nationals’ protection approach). However, Boswell and Geddes believe that the free movement granted to EU citizens implies the idea that EU citizens are entitled to certain political rights, as well as judicial and police cooperation to protect the citizens “as they live, work and move around in the EU” (Boswell and Geddes 2011, p. 189). Therefore, in the so-called “Area of Freedom, Security and Justice”, the free movement of EU citizens should be ensured in conjunction with appropriate measures with respect to external border controls, asylum and migration, as well as the prevention and combating of crime (Article 67, TFEU).103 This police and judicial cooperation, however, does not seem to have

103

Article 67 (ex Article 61 TEC and ex Article 29 TEU)

1. The Union shall constitute an area of freedom, security and justice with respect for fundamental rights and the different legal systems and traditions of the Member States. 2. It shall ensure the absence of internal border controls for persons and shall frame a common policy on asylum, immigration and external border control, based on solidarity between Member States, which is fair towards third-country nationals. For the purpose of this Title, stateless persons shall be treated as third-country nationals.

168

5 The Legal and Normative Framework on Migration in Germany and in the. . .

permeated the consciousness of EU citizens, as it is difficult to identify a common sense of shared identity within EU citizens (Boswell and Geddes 2011, p. 190). Boswell and Geddes argue that the sense of shared identity can be noted through the side-effects of other measures and procedures rather than the ones related to the Area of Freedom, Security and Justice: [. . .] visa-waiver and provisions for passport or customs checks at European airports may help create a sense of commonality, at least vis-à-vis those from non-EEA or Schengen countries; while the availability of cheap European flights through a ‘Ryanair effect’ has greatly increased intra-European tourism. Not least, the common currency, the Euro, has undoubtedly contributed to a sense of commonality among nationals of its member states. The more high-flown discourse on citizenship emanating from the Commission and from various European Council Conclusions and treaties, on the other hand, shows little sign of impacting on firmly entrenched conceptions of political membership along national lines (Boswell and Geddes 2011, p. 190).

From these statements, it is not difficult to conclude that EU citizens seem to perceive their sense of shared identity when their daily acts, such as crossing borders, acquiring a flying ticket, or purchasing with a strong currency are facilitated because they own the EU citizenship. In this context, EU citizenship, or the identification of Europeans as such (what it can be called “Europeanness”),104 seems to be better accepted when individuals start profiting from it, especially while carrying out certain activities of their civil life. Moreover, it is important to draw attention to Boswell’s and Geddes’s critics on EU citizenship in relation to how this citizenship is used in order to secure free-movement rights. According to the authors, freemovement provisions apply to all EU citizens, but these provisions “ignore the question of how this citizenship status is acquired” (Boswell and Geddes 2011, p. 197). They continue their argument stating that many EU Member States’ legal framework that emigrants can transfer their nationality to subsequent generations. The authors, based on Bauböck’s lessons, give the example of Brazilians and Argentinians who “can ‘discover’ their Italian roots, and now have access to full mobility rights across the EU” (Bauböck apud Boswell and Geddes 2011, p. 197)

3. The Union shall endeavour to ensure a high level of security through measures to prevent and combat crime, racism and xenophobia, and through measures for coordination and cooperation between police and judicial authorities and other competent authorities, as well as through the mutual recognition of judgments in criminal matters and, if necessary, through the approximation of criminal laws. 4. The Union shall facilitate access to justice, in particular through the principle of mutual recognition of judicial and extrajudicial decisions in civil matters. European Union (2012). Consolidated versions of the Treaty on European Union and the Treaty on the Functioning of the European Union, available via http://eur-lex.europa.eu/legal-content/EN/TXT/HTML/? uri¼CELEX:12012E/TXT&from¼DE. On the “europeanness” and on the relationship between European and national identification, see: Recchi (2015).

104

5.2 European Union Law and the Free Movement of People

169

(or also Portuguese roots, as in the case of Brazil). The authors also add to this issue the following arguments: Professional footballers, for example, have been quite rigorous in their analysis of the family trees in order to discover European ancestry that can then allow them to ply their trade in the more lucrative European leagues as EU citizens. Similarly, countries which permit those born on their territory to acquire citizenship – such as Ireland until it changed its laws recently – would permit those children and their primary caregivers to mobility within the EU (Boswell and Geddes 2011, p. 197).

We must state that we do not agree with the authors’ criticism levelled at “the way EU citizenship is acquired in order to guarantee a person’s free movement within the EU”, mostly because these people (who already have other nationalities) also have the right to acquire, by birth, another nationality which happens to be the nationality of a State that is a EU Member State. Therefore, EU citizenship—obtained through the acquisition of a nationality by origin and not because the person has undergone a naturalization process—is not used as a way to secure free-movement rights but it is the access to free-movement of rights per se. Undoubtedly, the acquisition of an “extra” nationality influences migration issues within the region, but the suggestion the authors make that a kind of “nationality shopping” arises in order to pursue the free movement rights within the EU does not apply to these cases nor should it be applied to naturalization cases. Furthermore, when we analyze the Treaty of Amsterdam from June 1997, comparing it with the Maastricht Treaty, it “added little to nothing to the array of already existing citizenship rights – to be specific, only the right of European citizens to communicate with EU institutions in any of the EU’s official languages” (Recchi 2015, p. 27). Nevertheless, it is important to register that the Amsterdam Treaty “conferred considerable powers upon the European Union institutions to act on immigration, asylum and the related issue of the equal treatment of immigrants and refugees” (Niessen 2000, p. 203). Also, we must not forget, as already presented in Sects. 2.3 and 3.2.2 of this book, that the Amsterdam Treaty integrated the terms of the Schengen agreement, proving that migration policy started to arouse interest of the European Community. In this context, we could state that the free movement of persons in Europe started to be effectively shaped in 1985, when Benelux countries, France, and Germany liberalized the free movement between themselves “with compensating security measures” (Boswell and Geddes 2011, p. 58). The Schengen105 Agreement was completed in 1990, entering into force in 1995 (with 9 participating states) and, in 1999, it won the status of acquis communautaire, once it became part of the European Union’s institutional and juridical foundations, because attached to the Amsterdam Treaty (Fernandes and Silva 2013, p. 366).106 Schengen “abolished checks at internal

105

The name Schengen refers to the small town in Luxemburg where the original Schengen Agreement was signed, see: White (2004, p. 8). 106 In Boswell’s and Geddes’ opinion, the Schengen Agreement figures as a flourished example of innovation apart from the EU’s treaty framework that has been absorbed by the EU’s structure.

170

5 The Legal and Normative Framework on Migration in Germany and in the. . .

borders and created a single external border where entry checks for access to the Schengen area are carried out. These checks are based on a common set of rules, such as a common visa policy, police and judicial cooperation and a Schengen Information System (SIS) to pool and share data” (Boswell and Geddes 2011, p. 59). “There is no doubt that Schengen represents a pooling of sovereignty, and along with monetary union, is one of the EU’s most visible and remarkable feats” (Hampshire 2016a, p. 538). Robin White exposes the pros and cons of the Schengen arrangements. On the one hand, Schengen represents “a visionary dismantling of national frontiers”, which produces “an area without frontiers or border controls for citizens of the participating countries”, and, on the other hand, the author thinks that “there has to be some common agreement on who is entitled to be legitimately in those countries so that decisions taken by one participating country are acceptable to all”; because there are no common agreements on which third country nationals are entitled to be legitimately in the EU/Schengen countries, the removal of frontiers and border controls caused by the Schengen arrangements “has tended to be compensated for by stricter controls on external borders” (White 2004, p. 9). In this context, the author means that, while EU citizens are free to cross the EU internal borders, EU Member States might control the total number of non-nationals in their territories by setting stricter requirements for third-country nationals to cross their external borders. In this context, third-country nationals are subjected to common visa policies laid down by the European Union for the Schengen Area, as for example Regulation (EC) No 810/2009. According to this Regulation, “local Schengen cooperation is crucial for the harmonized application of the common visa policy and for proper assessment of migratory and/or security risks” in relation to third country nationals (hereafter TCN).107 In fact, Didier Bigo considers that the Schengen policy serves as an “internal security reserve of the Member States”, stating that the “Schengen logic was clearly against freedom of movement of people and was conducted not only by fears about criminals but also migrants, foreigners from third world countries” (Bigo 2005, pp. 66–67). Nevertheless, despite these common visa policies, each Member State might complement, based on the EU’s common instructions on its Code on Visas and on the EU’s Commission Handbook for the Processing of Visa Applications and the Modification of Issued Visas, their own rules for the granting of visas to TCN: Member States may complement these common instructions when and to the extent justified by national legislation, in particular legislation on the establishment and responsibilities of the Ombudsman, and involvement of specific authorities in the processing of visa applications. Member States may also complement these common instructions with national rules relating to motivation of grounds for a refusal and right of appeal against a negative decision, until the Union rules on these issues become applicable.108

107

Regulation (EC) No 810/2009 of the European Parliament and of the Council of 13 July 2009 establishing a Community Code on Visas [2009] OJ L 243/1, (18). 108 Commission Decision C(2010) 1620 final of 19.3.2010, establishing the Handbook for the processing of visa applications and the modification of issued visas.

5.2 European Union Law and the Free Movement of People

171

In this context, it must be stated that not only TCN, but also EU citizens have difficulties when settling down in another Member State in which they are not country nationals (Moses 2011, pp. 380–381), especially if they move as economically active people, i.e., as workers. For several years, the European Union has worked hard in order to minimize the barriers that EU citizens experience: Already in 1996, the Commission set up a High-Level Panel on the Free Movement of Persons, which identified a number of barriers to mobility and produced eighty [. . .] recommendations, many of which were included in the Commission’s 1997 Action Plan for the Free Movement of Workers (Moses 2011, p. 381).

Title IV of the Treaty on the Functioning of the European Union (TFEU) sets out the free movement of workers, services and capital in the European Union (not including employment in the public service). Very similarly to Article 48 of the Treaty of Rome of 1958, the referred Title starts by Articles 45 and 46 that guarantee the freedom of movement for workers within the EU.109 Article 45 (1) states that the

109

Article 45 (ex Article 39 TEC) 1. Freedom of movement for workers shall be secured within the Union. 2. Such freedom of movement shall entail the abolition of any discrimination based on nationality between workers of the Member States as regards employment, remuneration and other conditions of work and employment. 3. It shall entail the right, subject to limitations justified on grounds of public policy, public security or public health: (a) to accept offers of employment actually made; (b) to move freely within the territory of Member States for this purpose; (c) to stay in a Member State for the purpose of employment in accordance with the provisions governing the employment of nationals of that State laid down by law, regulation or administrative action; (d) to remain in the territory of a Member State after having been employed in that State, subject to conditions which shall be embodied in regulations to be drawn up by the Commission. 4. The provisions of this Article shall not apply to employment in the public service. Article 46 (ex Article 40 TEC) The European Parliament and the Council shall, acting in accordance with the ordinary legislative procedure and after consulting the Economic and Social Committee, issue directives or make regulations setting out the measures required to bring about freedom of movement for workers, as defined in Article 45, in particular: (a) by ensuring close cooperation between national employment services; (b) by abolishing those administrative procedures and practices and those qualifying periods in respect of eligibility for available employment, whether resulting from national legislation or from agreements previously concluded between Member States, the maintenance of which would form an obstacle to liberalisation of the movement of workers;

172

5 The Legal and Normative Framework on Migration in Germany and in the. . .

freedom of movement for workers shall be guaranteed within the Union. Even though the wording of the mentioned Articles does not expressly dispose it, the workers meant by the articles are the ones who have the nationality of any of the Member States of the Union (de Campos and de Campos 2010, p. 555). This interpretation can be extracted from Article 45 (2), which states that this freedom of movement “shall entail the abolition of any discrimination based on nationality between workers of the Member States as regards employment, remuneration and other conditions of work and employment”.110 In this regard, EU workers111 are free to: accept employment opportunities offered in any Member State; freely move within the EU territory for this purpose; stay in any of the Member States’ territory for the sake of search for employment; as well as remain in that particular territory after being hired in that State. According to Neal, the freedom of movement for workers has been the most consistently developed area since the inauguration of the EEC in 1957. The author also comments that: the framework established by Article 45 has been ‘fleshed out’ since its original inception in 1957 by a number of key instruments dealing with ancillary arrangements for workers exercising their rights to freedom of movement - including provisions for housing, access to vocational training, and facilities for the families of the free mover - as well as establishing administrative frameworks for the organisation and supervision of employment exchange activities, and institutional arrangements for co-operation between Member States in the context of free movement for workers (Neal 2013, p. 47).

As a matter of fact, we can mention as an example of one of these key instruments Regulation (EU) No. 492/2011 on freedom of movement for workers within the Union, which is considered to be the most important legislative act on the free movement of workers of the Union (Brinkmann 2015, p. 240). The Regulation was laid down in order to enable the objectives contained in articles 45 and 46 of TFEU. The 2011 Regulation, which aims at securing the freedom of movement of workers within the EU, was drafted in order to abolish, according to item 2 of its preamble: any discrimination based on nationality between workers of the Member States as regards employment, remuneration and other conditions of work and employment, as well as the right of such workers to move freely within the Union in order to pursue activities as

(c) by abolishing all such qualifying periods and other restrictions provided for either under national legislation or under agreements previously concluded between Member States as imposed on workers of other Member States conditions regarding the free choice of employment other than those imposed on workers of the State concerned; (d) by setting up appropriate machinery to bring offers of employment into touch with applications for employment and to facilitate the achievement of a balance between supply and demand in the employment market in such a way as to avoid serious threats to the standard of living and level of employment in the various regions and industries. Consolidated version of the Treaty on the Functioning of the European Union – Protocols – Annexes – Declarations annexed to the Final Act of the Intergovernmental Conference which adopted the Treaty of Lisbon. O J C 326, 26/10/2012, pp. 1–390. 111 Needless to mention that a third-country national worker, even if he/she has permanent residence in any of the Member States, is not entitle to the freedom of movement guaranteed by Articles 45 and 46 of the TFEU. 110

5.2 European Union Law and the Free Movement of People

173

employed persons subject to any limitations justified on grounds of public policy, public security or public health.112

In this regard, provisions concerning general eligibility for employment, establishment of EU workers’ families, facilities for housing, and enjoyment of the same social and tax advantages as national workers make us understand the Regulation has a propositional character rather than an enforceable one. It is not without reason that Brinkmann (2015, p. 253) affirms that a new Directive came in order to make the 2011 Regulation’s provisions enforceable, namely Directive 2014/54 of 16 April 2014. According to the author, the Directive 2014/54 is based on Article 46 TFEU and it: does not intend to create new rights for EU migrant workers, but it lists the rights of Regulation 492/2011 to make them more effective by imposing obligations on Member States that Union workers become better aware of their rights, and, thus, could enforce them and attain legal certainty (Brinkmann 2015, p. 246).

In this context, we must stress that an analysis of these instruments will not be provided, as they do not match with the structure of the present work. Therefore, we would like to concentrate on the fact that not only the workers or businesspersons from the EU enjoy the freedom of movement.113 In fact, every citizen of the Union has the right to move and reside freely within the territory of the Member States, as expressed by Articles 20 (2) and 21 of the TFEU: Article 20 (ex Article 17 TEC) 1. Citizenship of the Union is hereby established. Every person holding the nationality of a Member State shall be a citizen of the Union. Citizenship of the Union shall be additional to and not replace national citizenship. 2. Citizens of the Union shall enjoy the rights and be subject to the duties provided for in the Treaties. They shall have, inter alia: (a) the right to move and reside freely within the territory of the Member States;

112

Regulation (EU) No 492/2011 of the European Parliament and of the Council of 5 April 2011 on freedom of movement for workers within the Union, OJ L 141, 27.5.2011. 113 In this context, it is important to mention Eleanor Spaventa, when she classifies four phases that reflect on how the EU—mostly through its case law—developed its concept of European citizenship (namely, the market-citizen phase; the constituent phase; the consolidation phase and the reactionary phase). In the beginning, under the Maastricht Treaty, it was common to refer to the marketcitizen, which is the EU citizen characterized by a broad interpretation of the economic migrant’s rights, i.e., EU migrants, playing their role as economic actors in EU Member States, would consequently have access to, for example, social, tax, and education rights. Spaventa then draws attention to the figure of the market-citizen, which lost its relevance during the constituent and consolidation phases, once not only the ECJ but also the EU’s institutions “shifted their rhetoric towards the ‘citizen’”. It was through the ECJ’s case law that the EU intended to free the EU citizenship from its market strings. In these cases, according to Spaventa, EU citizens began to be seen as individuals rather than migrants and economically inactive people also started to enjoy the same rights of “market-citizens”, culminating with the rights granted by Directive 2004/38. For more details on the development of the market citizen to the union citizen, including the most recent phase that refers to the reactionary phase, see: Spaventa (2017, pp. 204–209).

174

5 The Legal and Normative Framework on Migration in Germany and in the. . . (b) the right to vote and to stand as candidates in elections to the European Parliament and in municipal elections in their Member State of residence, under the same conditions as nationals of that State; (c) the right to enjoy, in the territory of a third country in which the Member State of which they are nationals is not represented, the protection of the diplomatic and consular authorities of any Member State on the same conditions as the nationals of that State; (d) the right to petition the European Parliament, to apply to the European Ombudsman, and to address the institutions and advisory bodies of the Union in any of the Treaty languages and to obtain a reply in the same language. These rights shall be exercised in accordance with the conditions and limits defined by the Treaties and by the measures adopted thereunder.

As a consequence of the Union citizenship, article 21 of the TFEU specifically determines on the right to move and reside freely within the region, as follows: Article 21 (ex Article 18 TEC) 1. Every citizen of the Union shall have the right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in the Treaties and by the measures adopted to give them effect. 2. If action by the Union should prove necessary to attain this objective and the Treaties have not provided the necessary powers, the European Parliament and the Council, acting in accordance with the ordinary legislative procedure, may adopt provisions with a view to facilitating the exercise of the rights referred to in paragraph 1. 3. For the same purposes as those referred to in paragraph 1 and if the Treaties have not provided the necessary powers, the Council, acting in accordance with a special legislative procedure, may adopt measures concerning social security or social protection. The Council shall act unanimously after consulting the European Parliament.114

The wordings of the articles reproduced above were consolidated after the Treaty of Lisbon, which entered into force on 1 December 2009 and made migration and asylum to be fully and unconditionally incorporated within the Treaty framework. Also, it is important to note that the Charter of Fundamental Rights of the European Union, signed in 2007 in Strasbourg and published in 2012, has been granted a status as part of the acquis communautaire, as stated by article 6 of the Treaty on the European Union.115 Therefore, article 15 of the Charter provides EU citizens the

114

Consolidated version of the Treaty on the Functioning of the European Union—Protocols— Annexes—Declarations annexed to the Final Act of the Intergovernmental Conference which adopted the Treaty of Lisbon. O J C 326, 26/10/2012, pp. 1–390. 115 Article 6 (ex Article 6 TEU) 1. The Union recognises the rights, freedoms and principles set out in the Charter of Fundamental Rights of the European Union of 7 December 2000, as adapted at Strasbourg, on 12 December 2007, which shall have the same legal value as the Treaties. The provisions of the Charter shall not extend in any way the competences of the Union as defined in the Treaties. The rights, freedoms and principles in the Charter shall be interpreted in accordance with the general provisions in Title VII of the Charter governing its interpretation and application and with due regard to the explanations referred to in the Charter, that set out the sources of those provisions. European Union. Consolidated versions of the Treaty on

5.2 European Union Law and the Free Movement of People

175

right to engage in work and to pursue a freely chosen or accepted occupation, as well as the freedom to “seek employment, to work, to exercise the right of establishment and to provide services in any Member State” and to “conduct a business in accordance with Union law and national laws and practices is recognised” (article 16); furthermore, article 45 (1) of the Charter provides freedom of movement and residence of EU citizens, stating that “every citizen of the Union has the right to move and reside freely within the territory of the Member States”.116 In this context: a common EU migration policy was institutionalized, although with the notable omission of admission policy, as the Lisbon Treaty that measures on migration ‘[does] not affect the right of Member States to determine volumes of admission of third-country nationals coming from third countries to their territory in order to seek work, whether employed or selfemployed’ (Article 79 TFEU) (Henry and Pastore 2014, p. 171).

This common migration policy specially targeted at third country nationals has its origins in a summit from the European Council, which took place in Tampere (Finland) in 1999. Before the Tampere summit, “cooperation on migration issues between European governments had taken place on an ad hoc and intergovernmental basis” (Hampshire 2016a, p. 537). During the summit, as already mentioned in Sect. 3.2.2 of this book, an area of freedom, security and justice of the EU was discussed. One of the points suggested in order to achieve the implementation of the discussions held in Tampere, a common migration policy of the European Union was put forward for consideration. In particular, the policy on the commitment to ensure freedom, which includes the right to circulate freely within the Union, without being a citizen of any of the EU Member States (Rodríguez 2000, p. 105). Furthermore, during the Tampere summit, the common policy on migration was basically rested on three principles: collaboration with the immigrants’ countries of origin;117 fair and equitable treatment given to third country nationals; and management of migratory flows within the EU borders (Rodríguez 2000, pp. 106–107). European Union and the Treaty on the Functioning of the European Union - Consolidated version of the Treaty on the Functioning of the European Union - Protocols - Annexes Declarations annexed to the Final Act of the Intergovernmental Conference which adopted the Treaty of Lisbon. O J C 326, 26/10/2012, pp. 1–390. 116

Charter of Fundamental Rights of the European Union OJ C 326, 26.10.2012, pp. 391–407. According to the presidency conclusions of the Tampere European Council (15–16 October 1999, available via http://www.europarl.europa.eu/summits/tam_en.htm#a), partnerships with countries of origin mean that the European Union “needs a comprehensive approach to migration addressing political, human rights and development issues in countries and regions of origin and transit. This requires combating poverty, improving living conditions and job opportunities, preventing conflicts and consolidating democratic states and ensuring respect for human rights, in particular rights of minorities, women and children. To that end, the Union as well as Member States are invited to contribute, within their respective competence under the Treaties, to a greater coherence of internal and external policies of the Union. Partnership with third countries concerned will also be a key element for the success of such a policy, with a view to promoting 117

176

5 The Legal and Normative Framework on Migration in Germany and in the. . .

As of 2009, the Treaty of Lisbon brought migration policy within the EU under the ordinary legislative procedure, with ‘co-decision’ between the European Parliament (EP) and the Council, and Qualified Majority Voting (QMV) in the latter. Migration governance remains an area of shared competence, with national governments retaining the right to decide how many immigrants from outside the EU they admit, but today almost every aspect of migration—from outside and within the Europe—has a supranational dimension (Hampshire 2016a, p. 537).

The fact that the Treaty of Lisbon is composed of two treaties—namely the Treaty on the European Union and the Treaty on the Functioning of the European Union (including their protocols and declarations)—was not the only novelty brought by the Lisbon document. According to Guild, there are two main impacts that were introduced by the Treaty of Lisbon (Guild 2013, p. 44). The first one refers to the inclusion of immigration as a competence of the EU, what caused the lifting of “the limitation of access to the European Court of Justice by courts of all instances in the field of borders, immigration and asylum”, causing the “acceleration of the harmonizing effect of EU law in this field”; furthermore, with the Treaty of Lisbon’s entry into force, the EU Charter of Fundamental Rights became legally binding, especially when referring to the treatment given to third country nationals (Guild 2013, p. 43), “for the institutions, bodies, offices and agencies of the Union with due regard for the principle of subsidiarity and to the Member States only when they are implementing Union law” (Eisele 2014, p. 110). In this context, if, until the Treaty of Lisbon, disputes between Members States and TCN about immigration and rights have been taken to the ECtHR on human rights grounds, after the Treaty of Lisbon these disputes are likely to “appear before the CJEU on EU immigration measures but present similar conflicts regarding family reunification, protection of residence rights, equality of treatment, and protection from detention and expulsion” (Guild 2013, p. 58). These are consequences of important measures in the Area of Freedom, Security and Justice introduced by the Treaty of Lisbon. The Treaty put an end to the so-called ‘pillar structure’ of the EU and brought matters of justice and internal affairs “that were previously divided between Title V of the first (Community) pillar (asylum, immigration, visas and judicial cooperation in civil matters) and the third pillar (Police and Judicial Cooperation in Criminal matters) together” (Wiesbrock 2010, p. 141). In this context, “the abolition of the former pillar structures means that almost all policy areas of Justice and Home Affairs have come under the Community method of decision-making” and, consequently, “qualified majority voting has become the usual voting method in the Council”. In a few areas, though, decisions “continue to be taken by unanimity, namely in respect of EU measures concerning passports, identity cards, residence permits and other documents necessary for the free movement of persons” (Wiesbrock 2010, p. 142). It is under the Treaty of Lisbon’s context that decisions and policies have been taken regarding TCN. The regime created by the Treaty of

co-development”. This case could be an example of the EU’s role as an International Law actor, a global actor, and even as imperialist. See: Zielonka (2008).

5.2 European Union Law and the Free Movement of People

177

Lisbon “created a substantive set of rules for the EU to shape its external relations with third countries, including the establishment of the EEAS [European External Action Service]” (Eisele 2014, p. 110). Specific treatment given to TNC after the entry into force of the Treaty of Lisbon will be discussed in Sect. 5.2.2. All in all, territorial mobility is one of the most delicate issues in the EU and develops into a wide variety of discussions, mainly those referring to the free movement of workers rather than the movement of EU citizens in general. In this sense, Cunha argues that the mobility of a working force is a sensitive issue for Europe (Cunha 2017, p. 238). Actually, until the first big enlargement of the EU, “migration was not at the centre of the political debate about the EU; if anything, the lack of migration raised concerns as to the proper functioning of the internal market” (Spaventa 2015, p. 458). It is referring to the Iberian enlargement of the European Union (i.e., the entry of Portugal and Spain into the Union), as well as to the 2004 and 2007 enlargement rounds, when Member States feared that cheap manual working force from Central and Eastern Europe would mean the invasion of the older Member States, “and that this would lead to wage dumping” (Cunha 2017, p. 238). “Such concerns have flowed from geographic proximity, considerable variations in earnings levels, differential levels of unemployment” and also a concern that there would “be a greater propensity for labour migration than with earlier enlargements” (White 2004, p. 19). In this regard, Kahanec and Zimmermann have proved that this was a misleading fear.118 After having conducted a study that focused on data collected during the 5 years after the 2004 EU’s enlargement, the authors have found that the enlargement has had “a significant impact on migration flows from new to old Member States” (Kahanec and Zimmermann 2010, p. 88). In this sense, according to their studies, various forms of migrant diversion to old Member States that adopted an open immigration policy have been observed, whereas Member States that have not opened their labor markets have also experienced “significant inflows of migrants from the new Member States”; moreover, the authors, while researching on topics such as labor markets, welfare systems and growth of the old Member States, have concluded that “there is evidence that post-enlargement migration contributes to growth prospects of the EU by ensuring a better allocation of human capital, that these migrants are strongly attached to the labour market, and that they are quite unlikely to be among welfare recipients” (Kahanec and Zimmermann 2010, p. 88). In fact, high-skilled labor counts as “one of the main determinants of the growth potential of the EU, highlighting the role of brain circulation” (Kahanec and Zimmermann 2010, p. 89). Even though these results refer to a specific time period, there are no reasons to believe that this formula could be applied to the EU’s current labor market.

118

It was this fear, together with the lack of information on European citizenship and free movement, the “Euroscepticism”, among other reasons that led the UK to BREXIT. For more commentaries on this issue, see: Outhwaite (2018).

178

5 The Legal and Normative Framework on Migration in Germany and in the. . .

Undoubtedly, labor mobility should be considered as an essential element for integration and for the elimination of barriers in order to reach the free movement of capital, goods, services and technology within the EU. We also agree that the free movement of people serves as a boost to the economy, as well as an instrument to ensure the sustainability of the welfare system in all Member States. The free movement of people in the EU figures as an asset that strengthens the global competitiveness of the Union (Kahanec and Zimmermann 2010, p. 89). Nevertheless, human mobility for the sake of positive economic changes has to be accompanied by equal treatment among migrants, together with social rights provisions, as it is provided by EU Law (Cholewinski and Taran 2010, pp. 14–15).

5.2.1.1

Entry, Stay, and Compulsory Withdrawal of EU Citizens

Before we explore the free movement of TCNs in the following topic, which we believe is the topic that will add more value to the comparison and analysis this work aims at,119 some detailed information on the free movement of EU citizens within the EU should be given and some of the aspects of the free movement and their stay within the EU should be analyzed. This is why we are focusing on the EU’s citizens’ rights of entry, stay and their possible compulsory withdrawal from the EU territory. In this context, we could name several EU legislative acts having an impact not only on the free movement of EU citizens, but also on the free movement of workers, such as—just to name a few—“the directive on the recognition of professional qualifications,120 the regulations on social security121 or the directive on supplementary pension rights122” (Brinkmann 2015, p. 240). However, we will focus on the mobility facilities and difficulties encountered by EU citizens, bringing into discussion the Free Movement Directive (2004/38/EC), also known as the Citizens’ Rights Directive (hereafter the Directive), which “(. . .) provides detailed rules on the rights of free movement and residence of Union citizens and their third country national family members in other Member States” (Szabados 2017, p. 84). In this sense, the

119

Mostly because of the lack of migration policy in MERCOSUL dedicated to third country nationals. 120 Directive 2005/36/EC of the European Parliament and of the Council of 7 September 2005 on the recognition of professional qualifications. OJ L 255, 30.9.2005, pp. 22–142. 121 Regulation (EC) No 987/2009 of the European Parliament and of the Council of 16 September 2009 laying down the procedure for implementing Regulation (EC) No 883/2004 on the coordination of social security systems. OJ L 284, 30.10.2009, pp. 1–42. 122 Council Directive 98/49/EC of 29 June 1998 on safeguarding the supplementary pension rights of employed and self-employed persons moving within the Community, OJ L 209, 25.7.1998, pp. 46–49 and Directive 2014/50 on minimum requirements for enhancing worker mobility between Member States by improving the acquisition and preservation of supplementary pension rights. Directive 2014/50/EU of the European Parliament and of the Council of 16 April 2014 on minimum requirements for enhancing worker mobility between Member States by improving the acquisition and preservation of supplementary pension rights, OJ L 128, 30.4.2014, pp. 1–7.

5.2 European Union Law and the Free Movement of People

179

Directive, which was elaborated based on article 21 (1) of TFEU, could be summarized as follows: Union citizens and their non-EU citizen family members may travel to and reside in another Member State for up to three months with a valid identification card or passport. Workers and self-employed persons can stay in another Member State for longer than three months, as can students and anyone else having sufficient resources, if they do not burden the host country’s social system and if they have comprehensive health insurance cover. Their family members also have derivative rights of residence. If Union citizens have lived legally in another Member State for a continuous period of five years, they and their family members are entitled to permanent residence (Szabados 2017, p. 84).

According to the European Union, the “Directive 2004/38/EC codified and reviewed the existing Community instruments in order to simplify and strengthen the right of free movement and residence for Union citizens and their family members”.123 However, it must be reminded that, according to article 288 of the TFEU,124 Directives within EU law “shall be binding, as to the result to be achieved, upon each Member State to which it is addressed, but shall leave to the national authorities the choice of form and methods.”125 The EU exercises its competence through (among others)126 the directives and these constitute EU’s secondary legislation and EU Member States have the discretion to decide on the form and methods in order to exercise the Union’s competence. In Chalmers’, Davies’, and Monti’s words: Directives are binding as to the result to be achieved. They leave the choice as to form and methods used to implement it to the discretion of Member States. Although, like other legislative instruments, a Directive comes into force twenty days after publication or on the date stipulated in the Directive, it will give a deadline (. . .) by which Member States must transpose its obligations into national law (Chalmers et al. 2010, p. 99).

It is not without reason that, when referring to Directive 2004/38/EC, the European Commission recalls that the Directive “must be interpreted and applied in accordance with fundamental rights”, especially, “the right to respect for private and family life, the principle of non-discrimination, the rights of the child and the right to an effective remedy as guaranteed in the European Convention of Human

123

Communication from the Commission to the European Parliament and the Council on guidance for better transposition and application of Directive 2004/38/EC on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States, COM/2009/0313 final, Brussels, 2 July 2009, p. 3. 124 Curtin and Manucharyan state that the so-called secondary legislation of the EU listed by article 288 TFEU is incomplete. Also, under the Treaty of Lisbon there is an incomplete hierarchy of legal acts, as embodied by articles 289, 290, and 291 TFEU. For more information on typology and on the hierarchy of EU’s legal acts after the Lisbon Treaty, see: Curtin and Manucharyan (2015). 125 Consolidated version of the Treaty on the Functioning of the European Union—Protocols— Annexes—Declarations annexed to the Final Act of the Intergovernmental Conference which adopted the Treaty of Lisbon. O J C 326, 26/10/2012, pp. 1–390, art. 288 TFEU. 126 Regulations, decisions, recommendations and opinions, according to art. 288 of the TFEU.

180

5 The Legal and Normative Framework on Migration in Germany and in the. . .

Rights (ECHR) and as reflected in the EU Charter of Fundamental Rights”.127 In the case of Germany, for example, the Act on the General Freedom of Movement for EU Citizens, hereafter Freedom of Movement Act/EU128 implemented the prescriptions of the primary and secondary legislation (especially this Directive) of the Union on the freedom of movement of EU citizens and their dependents (Hailbronner 2017, p. 463). In this section we are working exclusively on the prescriptions of the Union on the free movement of EU citizens and their dependents (and not of the prescriptions of the Union’s Member States). The German Freedom of Movement Act/EU on the rights of EU citizens is outside of the scope of our analysis.129 However, this does not preclude us from making specific observations on the German Freedom of Movement Act/EU throughout the present section. Specific German law provisions on the rights of immigrants, i.e., of third country nationals, have already been discussed above. In this context, it must also be stressed that the Directive, for the first time, established migration rules for all Union citizens regardless of their economic activity, which makes us substantiate our analysis and the writing of this book, not only on EU citizens as EU workers, but as citizens of the EU. Nevertheless, there are still some distinctions made by the Directive between economically active and non-economically active Union citizens. “For a period of up to three months, all Union citizens have the right of residence in any Member State, subject only to the duty to have a valid passport or identity document”; however, for non-economically active Union citizens who overstay this period, “residence rights can be made dependent upon proof of sufficient means of subsistence and health insurance” (Hailbronner 2007, p. 320). Also EU citizens’ family members from third countries have to obtain a residence card for periods of residence that surpass these 3 months mentioned above.

5.2.1.2

General Rules on the Entry and Stay of EU Citizens and Their Family Members

Chalmers, Davies, and Monti interpret the Directive 2004/38/EC by dividing its provisions into three categories: (i) right to movement and short-term residence; (ii) residence in another Member State for periods of more than 3 months; and (iii) permanent residence. When it comes to item (i), “articles 4 to 6 of the Directive provide that citizens may move throughout the territory of the Union and live in any 127

Communication from the Commission to the European Parliament and the Council on guidance for better transposition and application of Directive 2004/38/EC on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States, COM/2009/0313 final, Brussels, 2 July 2009, p. 3. 128 Freedom of Movement Act/EU of 30 July 2004 (Federal Law Gazette I p. 1950, 1986), last amended by Article 6 of the Act of 21 December 2015 (Federal Law Gazette I p. 2557). 129 For detailed information on the German Freedom of Movement Act/EU and for the rights of entry and establishment of EU citizens in Germany, see: Hailbronner (2017, pp. 461–500).

5.2 European Union Law and the Free Movement of People

181

state for up to three months, without any formalities other than the possession of a valid identity card or passport” (Chalmers et al. 2010, p. 447). For residence in another Member State for periods of more than 3 months (ii), the stay conditions of EU citizens in the EU territory are more restrictive: Article 7 Right of residence for more than three months 1. All Union citizens shall have the right of residence on the territory of another Member State for a period of longer than three months if they: (a) are workers or self-employed persons in the host Member State; or (b) have sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host Member State during their period of residence and have comprehensive sickness insurance cover in the host Member State; or (c) are enrolled at a private or public establishment, accredited or financed by the host Member State on the basis of its legislation or administrative practice, for the principal purpose of following a course of study, including vocational training; and have comprehensive sickness insurance cover in the host Member State and assure the relevant national authority, by means of a declaration or by such equivalent means as they may choose, that they have sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host Member State during their period of residence; or (d) are family members accompanying or joining a Union citizen who satisfies the conditions referred to in points (a), (b) or (c).130

As previously mentioned, a longer stay within a Member State depends on working conditions (either the person is in the territory of another Member State because he/she is there as a worker or he/she is self-employed). A stay longer than 3 months might also depend on a person’s sufficient resources to maintain him/herself and his/her family within the territory of a Member State, provided that he/she does not become a burden for the host Member State’s social assistance system and health insurance system. Also, EU citizens enrolled at a private or public institution for the conduction of studies might also stay longer than 3 months in an EU Member State, provided that, on the same terms of the previous condition, the host Member State’s social assistance system and health insurance system are not burdened. It is important to remind critics, on what being a burden means for the social and health system of a Member State. More specifically, what it means to not become “an unreasonable burden on the social assistance system of the host Member State during an initial period of residence”, as provided by Recital 10 of the Directive. On this unreasonableness, Kay Hailbronner argues (2006, p. 11): What criteria could be used to determine the unreasonableness of a burden? In any individual case it will hardly ever be possible to demonstrate this. The social system as such cannot be substantially affected by an additional beneficiary. “Unreasonableness” indicates a

130

Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States. OJ L 158, 30.4.2004, pp. 77–123.

182

5 The Legal and Normative Framework on Migration in Germany and in the. . .

requirement to draw a balance between private and public interests. In case of disputes, courts, however, will hardly have many choices in order for quick decisions to be taken on preliminary residence rights.131

Finally (and still referring to residence in another Member State for periods of more than 3 months), family reunion is also guaranteed if an EU citizen finds himself/herself in any of the situations described above.132 In this case, the family of an EU citizen includes his/her spouse133 and/or his/her direct descendants (and/or the descendants of his/her spouse) younger than 21 years old, as well as descendants older than 21 years who are dependents; his/her dependent direct relatives in the ascending line and also those of the spouse or partner, even though this dependency does not necessarily include maintenance obligations/rights (de Campos and de Campos 2010, p. 558). After all, if this dependency were linked to the entitlement to maintenance, such a requirement “would result in defining the status of dependency or otherwise on the basis of national law, which varies from one Member State to another” (Kaczorowska 2013, p. 628). Also, article 3 of the Directive considers the right of entry and residence of EU citizens family members who do not fit in the definition of family member presented in article 2 (2) of the Directive, namely: (a) people who are “dependents, or members of a household, of an EU citizen in the country from which they come from”; (b) people “who require personal care by an EU citizen on serious health grounds”; and (c) “a partner with whom an EU citizen has a durable relationship, duly attested” (Kaczorowska 2013, p. 628). It is important to mention that a stay in a host Member State beyond the initial 3 months of unconditional residence is also possible in cases in which the EU citizen is seeking employment during this period (Hailbronner 2006, p. 11). Indeed, Article 14 (4) (b) of the Directive provides that EU citizens, who are jobseekers, and their family members retain their right of residence and cannot be expelled from their host Member State, if they are continuing to seek employment, and have a genuine chance of being hired after the 3 month period provided by Article 6134 of the Directive. The host Member State, however, according to Article 24 (2) of the 131

In fact, Rogers, Scannel and Walsh affirm that the Commission has identified some criteria for the determination of the unreasonableness of the burden an EU citizen may cause in a host Member State. According to the authors, Member States would have to carry out a proportionality test, in which duration of the social benefit, personal situation of the EU citizen, and the amount of the benefit should be evaluated. For more information, see: Rogers et al. (2012, pp. 195–196). 132 Family reunion is also guaranteed by Regulation (EU) No 492/2011 of the European Parliament and of the Council of 5 April 2011 on freedom of movement for workers within the Union. OJ L 141, 27.5.2011, pp. 1–12. 133 Or partner, in accordance with item (5) of the preamble of Directive 2004/38/EC, as well as with article 2 of the same Directive. 134 Article 6 Right of residence for up to three months 1. Union citizens shall have the right of residence on the territory of another Member State for a period of up to three months without any conditions or any formalities other than the requirement to hold a valid identity card or passport.

5.2 European Union Law and the Free Movement of People

183

Directive, shall not grant jobseekers the right to social assistance (nor to the first 3 months of residence) (Spaventa 2015, pp. 462–463). When it comes to category (iii) considered by Chalmers, Davies, and Monti— permanent residence135—, this can be granted to those EU citizens and their family members who have resided legally in another Member State for 5 years (Chalmers et al. 2010, p. 448). In this case, the conditions established by Article 7, which were already explained above, do not apply.136 Once acquired, this permanent resident status might be lost if the EU citizen or his/her family members are absent from the host Member State for a period exceeding two consecutive years (Chalmers et al. 2010, p. 448). In relation to EU citizens’ family members coming from one Member State to another, it is affirmed that this family reunion figures, “a logical corollary of their [i.e. the EU citizen’s] own right of free movement” (Chalmers et al. 2010, p. 470). In cases in which an EU citizens brings their family members to the Union for the first time, Chalmers, Davies and Monti state: However, it is less obvious that the migrant should have the right to bring family members into the Union for the first time. It is certainly true that the quality of migration will be enhanced if it is possible to bring distant family members to the host state. However, if this is not the case the migrant will be no worse off in the host state than at home, so it is not clear that there is any deterrent to free movement. It may perhaps be argued that the position of a migrant in a host state is particularly lonely and difficult and therefore the presence of family members is a necessary accompaniment, whether or not they were with the EU citizen prior to her migration (Chalmers et al. 2010, p. 470).

Chalmers, Davies and Monti agree that the Directive understands the presence of a family member as a necessary accompaniment, “simply providing for a right of residence for family members ‘joining’ the citizen, without any condition that they join from within the European Union” (Chalmers et al. 2010, p. 470). Moreover, it is important to note that Member States are not allowed to impose other conditions for family reunion rather than those already defined by the Directive. Once more, we reinforce that the 2004 Directive’s most important characteristic refers to the right of EU citizens and their family members to stay within the territory of a Member State, regardless of being economically active. This proves that the EU citizen is no longer an economic actor of the Union, but a citizen of the Union and, therefore, a political actor of the EU (de Campos and de Campos 2010, p. 559). Nevertheless, the right not to be discriminated against and the right to equal treatment in the labor market

2. The provisions of paragraph 1 shall also apply to family members in possession of a valid passport who are not nationals of a Member State, accompanying or joining the Union citizen. 135

Generally provided by article 16 of Directive 2004/38/EC. Each Member State defines the application process of a residence card. In Germany, for example, the Freedom of Movement Act/EU establishes, in its Section 5 and 5a, the documents the immigrant has to present and the several requirements EU citizens and their dependents need for the issuing of documents that confirm their right of permanence within German territory, see: Hailbronner (2017, p. 468).

136

184

5 The Legal and Normative Framework on Migration in Germany and in the. . .

might not always be as obvious as it should be. Because Directive 2004/38/EC is only applicable in a country different from that of a person’s nationality (and consequently excluding frontier workers’ cases and returning workers’ cases), and because some national laws can be very restrictive in regard to family reunification rights, the Directive gives rise “to discrimination against a State’s own citizen which from the citizen’s perspective might appear wholly irrational and unjust, if not altogether cruel” (Spaventa 2015, p. 465).137 Therefore, in order to repair these gaps “Parliament and Council adopted Directive 2014/54 aimed at facilitating the exercise of migrant workers rights”; the 2014 Directive “requires Member States to establish national bodies (contact points) entrusted with the promotion, analysis, monitoring and support of equal treatment of Union workers and their family members” (Spaventa 2015, pp. 467–468). In this context, these national bodies shall be responsible for identifying and reporting infringements to EU workers’ equality rights. It must also provide assistance to EU citizens who feel their freedom of movement as workers is restricted. In Spaventa’s opinion, limitations to the free movement are difficult to be identified by EU citizens, mainly because the majority of EU citizens do not feel they know their rights as an EU citizen or as an EU worker within EU’s territory. As barriers to move within all Member States’ territory are still laborious to transpose (due to prejudice, especially based on the rhetoric that free movement provisions might—without any data support—disturb a Member State’s economy) (Spaventa 2015, p. 475), it could be said that even EU citizens experience integration issues, when deciding to live beyond the borders of his/her Member State.

5.2.1.3

Restrictions on the Right of Free Movement and Residence on Grounds of Public Policy, Public Security or Public Health

Clearly established limitations to the free movement are provided by the Directive 2004/38/EC. Even though we focus, in the present work, on the limitations on the freedom of movement that are provided by Directive 2004/38/EC, we must first bring to the notice that Article 45, (3), (4) TFEU and Article 51 TFEU also establish exceptions to the free movement of EU citizens within the EU. The two provisions allow “a host Member State to impose restrictions on access of EU migrant workers to ‘employment in the public service’ (. . .) and of self-employed persons to activities connected with the ‘exercise of official authority’ (. . .)” (Kaczorowska 2013, p. 738). The first exception to the movement of people within the EU is observed in article 45 TFEU. While the Article, in its first lines, ensures the freedom of movement for workers within the Union, it also allows the Member States to limit the freedom of work of EU citizens, and to limit the equal conditions of work among

137

The author refers to ECJ cases like Carpenter and S and G, that are detailed and commented in the article and that try to reduce this inequality.

5.2 European Union Law and the Free Movement of People

185

EU citizens if public policy, public security or public health are argued. Limitations to the freedom of movement are also identified when it comes to employment in a Member State’s public service in Article 45 (4), i.e., the free movement principle shall not be applied when it comes to employment in the public service. Both limitations are reproduced as follows: Article 45 3. It shall entail the right, subject to limitations justified on grounds of public policy, public security or public health: (a) to accept offers of employment actually made; (b) to move freely within the territory of Member States for this purpose; (c) to stay in a Member State for the purpose of employment in accordance with the provisions governing the employment of nationals of that State laid down by law, regulation or administrative action; (d) to remain in the territory of a Member State after having been employed in that State, subject to conditions which shall be embodied in regulations to be drawn up by the Commission. 4. The provisions of this Article shall not apply to employment in the public service.138

The other exception is provided by article 51 TFEU, which also limits the application of the free movement principle to the development of activities: Article 51 (ex Article 45 TEC) The provisions of this Chapter shall not apply, so far as any given Member State is concerned, to activities which in that State are connected, even occasionally, with the exercise of official authority. The European Parliament and the Council, acting in accordance with the ordinary legislative procedure, may rule that the provisions of this Chapter shall not apply to certain activities.139

Article 45 (4) and Article 51 are very similar, as both relate to the work provided by EU citizens to a Member State’s public service. In this regard, Kaczorowska has presented the difference between the two provisions, mainly based on ECJ’s strict interpretation: The main difference between Article 45(4) and Article 51 TFEU is that under Article 51 a Member State is allowed to rely on the exception when the holder of the post carries out activities connected with the exercise of official authority “even occasionally”, an expression used in Article 51 TFEU, but not in Article 45(4) TFEU (Kaczorowska 2013, p. 746).

138

Consolidated version of the Treaty on the Functioning of the European Union—Protocols— Annexes—Declarations annexed to the Final Act of the Intergovernmental Conference which adopted the Treaty of Lisbon. O J C 326, 26/10/2012, pp. 1–390. 139 Consolidated version of the Treaty on the Functioning of the European Union—Protocols— Annexes—Declarations annexed to the Final Act of the Intergovernmental Conference which adopted the Treaty of Lisbon. O J C 326, 26/10/2012, pp. 1–390.

186

5 The Legal and Normative Framework on Migration in Germany and in the. . .

Based on the arguments of ECJ’s Case 149/79 Commission v Belgium (No1), Kaczorowska refers to Article 45(4) by stating that it is necessary that two elements must be observed, so that the exception to the free movement could be evoked. Firstly, it has to be justified “(. . .) that the post concerned must require a special relationship of allegiance to the Member State on the part of the person occupying it, which the bond of nationality seeks to safeguard”; therefore, in this context, the following concurrent arguments must be given when excluding the free movement principle: “the post involves the exercise of rights under powers conferred by public law” besides that “the holder of the post is entrusted with responsibility for the general interest of the Member State” (Kaczorowska 2013, p. 740). In this case, a functional approach, designed to safeguard the interests of a State, is used as the argument for the application of the exception to the rule enshrined in the first lines of Article 45 TFEU. On the other hand, when referring to Article 51, the activity exercised by the EU employee “must be directly and specifically connected with the exercise of official authority140 with the consequence that merely auxiliary and preparatory functions are outside of the scope of application of Article 51 TFEU” (Kaczorowska 2013, p. 742). In relation to Article 45 (3) TFEU, as already mentioned, Member States may limit the freedom of work of EU citizens if protection to public policy, public security or public health is argued. These three derogations prescribed by the TFEU are regulated in Directive 2004/38/EC in article 27 (1) and (2).141 According 140

After cases C-47/08, C-50/08, C-53/08, C-54/08, C-61/08 and C-52/08, the ECJ defined some of the activities that should not be considered as connected directly and specifically with the exercise of official authority and, therefore, could not justify the exception to the free movement of EU citizens: (i) activities auxiliary or preparatory to the exercise of official authority; (ii) “certain activities whose exercise, although involving contacts, even regular and organic, with the administrative or judicial authorities, or indeed cooperation, even compulsory, in their functioning, leaves the discretionary and decision-making powers of public authorities intact”; and (iii) “certain activities which do not involve the exercise of decision-making powers, powers of constraint or powers of coercion” (Kaczorowska 2013, p. 745) The cases just mentioned above are related to the question whether the profession of notary is within the scope of the derogation provided by Article 51, as six respondent Member States limited the access to the profession of notary to their own nationals. The Court concluded that the activities notaries exercise are not related to the exceptions of Article 51 TFEU. More recently, this very same discussion was also led by cases C-575/16 Commission v Czech Republic; C-392/15 Commission v Hungary; C-342/15 Piringer; C-151/14 Commission v Latvia. 141 Article 27 General principles 1. Subject to the provisions of this Chapter, Member States may restrict the freedom of movement and residence of Union citizens and their family members, irrespective of nationality, on grounds of public policy, public security or public health. These grounds shall not be invoked to serve economic ends. 2. Measures taken on grounds of public policy or public security shall comply with the principle of proportionality and shall be based exclusively on the personal conduct of the individual concerned. Previous criminal convictions shall not in themselves constitute grounds for taking such measures.

5.2 European Union Law and the Free Movement of People

187

to this article and to Chapter VI of the Directive, restrictions on the right to entry and on the right to establish residence of EU citizens and their family members may be imposed “only on the grounds specified in the Directive, such as public policy, public security and public health” (Szabados 2017, p. 84). In our opinion, these restrictions on the right to entry and on the right to establish residence of EU citizens and their family members might refer to any compulsory withdrawal measures, such as expulsion, deportation or repatriation, depending on the provisions of a Member State’s national law, or even to restrictions that might be applied even before the entry of an EU citizen and/or his/her family members. Reaffirming our thoughts, in Guild, Peers, and Tomkin’s words, the public policy, public security, and public health argument applies “to all measures of exclusion, including refusal to entry onto the territory, prevention of exit from a territory, the issue and renewal of residence cards, permits (. . .), and expulsion” (Guild et al. 2014, p. 246).142 For Chalmers, Davies and Monti, most of the reasons given for restrictions to the entry and stay of EU citizens and/or their family members, are based on public policy and public security, while public health is the less used one. In reference to public policy and public security, even though they constitute two different criteria for the exclusion of free movement, they “turn on the question whether the individual’s conduct poses a genuine, present and sufficiently serious threat to the fundamental interests of society” (Chalmers et al. 2010, pp. 476–477). In this context, it is of great relevance to drop some lines on the public policy principle or, as known in the civil law world, the principle of ordre public, which The personal conduct of the individual concerned must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society. Justifications that are isolated from the particulars of the case or that rely on considerations of general prevention shall not be accepted. 3. In order to ascertain whether the person concerned represents a danger for public policy or public security, when issuing the registration certificate or, in the absence of a registration system, not later than three months from the date of arrival of the person concerned on its territory or from the date of reporting his/her presence within the territory, as provided for in Article 5(5), or when issuing the residence card, the host Member State may, should it consider this essential, request the Member State of origin and, if need be, other Member States to provide information concerning any previous police record the person concerned may have. Such enquiries shall not be made as a matter of routine. The Member State consulted shall give its reply within two months. 4. The Member State which issued the passport or identity card shall allow the holder of the document who has been expelled on grounds of public policy, public security, or public health from another Member State to re-enter its territory without any formality even if the document is no longer valid or the nationality of the holder is in dispute. 142 The opinions of these authors go along with Giustiniani’s definition of expulsion. The author adopted a functional and broad approach to the concept of expulsion, in which it is comprised: deportation, refoulement, non-admission, reconduction to the border, removal from the territory, mainly because these measures share the same goal (expulsion stricto sensu). See: Giustiniani (2015, pp. 446–449). We must stress, though, that we agree with this broad approach of expulsion only when it refers to the effects it might produce under the light of the Directive. Out of the scope of the Directive we do believe in the differences made between expulsion, deportation, repatriation, among other measures, which are presented in Sect. 5.1 of this book.

188

5 The Legal and Normative Framework on Migration in Germany and in the. . .

also figures as one of the main principles of Private International Law.143 This also plays an important role in International Law and, consequently, in European Law as well. The characteristics of the public policy principle rely on the public policy’s instability, as well as on its contemporaneousness (Dolinger 2012, p. 94). This means that public policy is not really delimited under the criteria of a specific State, but it is a reflection of a society’s prevailing opinion on a specific issue and of this society’s sensibility during a particular period of time. Since we adhere to the idea that there is a dichotomy144 on the concept of public policy, which divides it into domestic public policy and international public policy,145 we tend to agree with van Calster when he affirms that public policy, approached by EU Private International Law instruments, could be inserted into the idea of international public policy (van Calster 2016, p. 194). After all, we understand that international public policy could be defined as the values that form the core of international legal orders and that are so essential for the protection of the values of the international community that a breach of these values would mean the breach of the ordre public (Ramos 2018, pp. 329–330). By contrast, Corthaut believes that there is a specific public policy for the EU146—what he calls the EU ordre public—which can have a very broad definition, including the definition which is related to the Union’s four freedoms (goods, services, persons and capital), as the public policy exception plays an important role for the free movement of persons within the Union (Corthaut 2012, pp. 445–446). The author adds that the EU’s public policy is in constant evolution, as it happens to occur with the public policy in general, since it is generally defined as “the complex of norms at the very heart of a political entity expressing and 143

Being, therefore, the argument for limiting the application of foreign rules. See in this regard: Dolinger (2012, p. 90), and Ghodoosi (2016, pp. 698–699). 144 Ghodoosi sets the discussion of the public policy definition in four contexts. The first one refers to the modern sense of public policy, which refers to those pursued and enacted by a government. The second one refers to “public policy as a mandatory rule that trumps the parties’ contractual agreement”, whereas the third one relates to Private International Law, in which public policy limits the application of foreign rules. The fourth context prevents the enforcement of foreign judgements or arbitral awards, see: Ghodoosi (2016, pp. 698–701). Dolinger, on the other hand (2012, p. 92), names these contexts as levels of application of public policy. 145 For further information on the concept of domestic public policy and international public policy, see Dolinger (2012, pp. 90–110). It is important to mention that the four contexts presented by Ghodoosi in the previous footnote do not preclude the possibility of dividing the first one named by Ghodoosi into domestic public policy and international public policy, as Dolinger suggests. 146 Ramos, following the lessons of Dolinger, believes that there are essential values that are advocated by a state that might derive from regional and/or global contexts. Therefore, the origin of the values proclaimed by a state may be divided into: national public policy, regional public policy, and international (or universal) public policy. The national one is based on the essential values produced by the state in its own forum; the regional one contemplates imperative values contained in norms produced by regional organizations, which he believes is the case of the European Union, and the international one is, as mentioned before, the one that contains essential values of the international community as a whole. See: Ramos (2018, pp. 329–330); and Dolinger (1986, pp. 205–232).

5.2 European Union Law and the Free Movement of People

189

protecting the basic options taken by that entity in respect of its political, economic, social and cultural order” (Corthaut 2012, p. 15). Therefore, it reflects a society’s prevailing opinion on a specific issue during a specific time. In this sense, it is important to note that the comments made on the exceptions to the free movement on the grounds of public policy are related to the second decade of the twenty-first century. Having clarified these points, it would not be strange if we affirmed that the EU public policy is not far from the understanding we have from international public policy. Just like in international law, EU Member States also have to cope with the concept of ordre public in their own national systems, limiting some of their sovereignty rights by joining a supranational entity (Corthaut 2012, p. 35). When referring to the public policy as an EU principle which commands article 27 paragraphs (1) and (2) of the Directive, it must be stated that it is expected that public policy and public security definitions would solely depend on the discretionary power of an EU Member State. This is so not only because no specific public policy exception exists in the Treaty Provisions on European Citizenship (Corthaut 2012, p. 94), or because both concepts are not contained in the text of Directive 2004/38/ EC neither provided in any other secondary legislation (Kaczorowska 2013, p. 746). But especially because these concepts demand, per se, complex definitions which may vary from one legal order to another, as it could be evidenced from the above lines on public policy. “In the first case dealing with the public policy exception, Yvonne van Duyn v. Home Office,147 the CJEU confirmed the discretion of the Member States in defining public policy” (Besters and Macenaite 2013, p. 2077). Nevertheless, since measures taken by EU Member States based on the concept of public policy and public security tend to be discriminatory, the ECJ has been given the mission to clear such concepts, especially the public policy one (Ristea 2011, p. 728), making the Members States exercise its discretion “within the limits of the Treaties” (Kaczorowska 2013, p. 747).148 We base our arguments on Besters’ and Macenaite’s work when they affirm that “because measures on grounds of public policy and public security potentially constrain internal market freedoms, the CJEU has developed an interpretation of the concepts of public policy and public security imposing limitations on the discretion of Member States” (Besters and Macenaite 2013, pp. 2077–2078). According to them, this limitation on the discretion of the Member States should be composed by the combination of both public policy and public security criteria. When it comes to the public policy argument149 under the context of the Directive, it “is related to the prevention of disturbances to social order” (Guild et al. 2014,

147

C-41/74, Yvonne van Duyn v. Home Office. In this case also referring to the public health exception to the free movement. 149 Important to mention that the public policy argument is most commonly pleaded by the Member States when these seek to expel EU nationals or their family members, as it also presupposes criminal behavior, see: Guild et al. 2014, p. 248). 148

190

5 The Legal and Normative Framework on Migration in Germany and in the. . .

p. 253). Based on ECJ cases,150 Besters and Macenaite have come to some conclusions regarding what the definition of public policy should be based on, so that the limitation to the freedom of movement could be justified. The first point to be mentioned is related to the seriousness of a threat a person could cause. In this context, the person should not only cause the perturbation of the social order “which any infringement of the law involves”, but there must also be “a genuine and sufficiently serious threat to the requirements of public policy affecting one of the fundamental interests of society”; also, it must be mentioned that the Court “has not set a minimum level of criminal conduct that may justify restrictive measures”, in that serious crimes as well as misdemeanors could justify the argument of public policy in order to limit the free movement within the region (Besters and Macenaite 2013, p. 2078).151 In this regard, it is important to clarify that previous criminal convictions in themselves cannot justify the public policy argument for expulsion or restrictions, as defined by case C-30/77 Bouchereau, once the concept of public policy presupposes the existence, in addition to the perturbation of the social order which any infringement of the law involves, of a genuine and sufficiently serious threat to the requirements of public policy affecting one of the fundamental interests of society (Guild et al. 2014, p. 254).

Moreover, while building the meaning of public policy, the ECJ has decided that, “because the principle of freedom of movement (. . .) must be given a broad definition any derogations from it must be interpreted strictly” (Guild et al. 2014, p. 254). Also, the measures on the basis of public policy are justified because they are exclusively based on the personal conduct of the individual subjected to the restriction measure. Considering the public policy characteristics explained in the previous lines, a Member State’s restriction to the free movement cannot solely rely on another Member State’s justification given for the restriction of free movement rights (Guild et al. 2014,, p. 255). Considering the definition of public security, we can use C-145/09 Land BadenWürttemberg v Panagiotis Tsakouridis as a paradigmatic case, in which the court defined what falls under public security: • • •

150

Both internal and external security of a Member State; a threat to the functioning of the institutions and essential public services and the survival of the population, as well as the risk of a serious disturbance to foreign relations, or to peaceful coexistence of nations, or a risk to military interests; and, trafficking in narcotics as part of an organized group when it reaches ‘a level of intensity that might directly threaten the calm and physical security of the population as a whole or a large part of it’ (Kaczorowska 2013, pp. 746–747).

Such as Case C-50/06, Comm’n v. Netherlands; Case C-30/77, Regina v. Pierre Bouchereau; Case C-434/10, Petar Aladzhov v. Zamestnik director na Stolichna direktsia na vatreshnite raboti kam Ministerstvo na vatreshnite raboti, among others which are analyzed in Besters’ and Macenaite’s work (2013). 151 It shall be considered, however, in accordance with case C 48/75 Royer, that failure to comply with registration requirements does not constitute “conduct threatening public policy and this cannot justify expelling an EU citizen”, see: Guild et al. (2014, pp. 254–255).

5.2 European Union Law and the Free Movement of People

191

It is not difficult to observe that both definitions often overlap each other and, as mentioned above, public policy and public security measures are often used in combination with each other. As a matter of fact, “any criminal conduct which is a threat to public security disturbs public policy, even though the opposite is not the case” (Besters and Macenaite 2013, p. 2079). For example, this affirmation would be applicable to a case in which an EU citizen commits a crime of armed robbery in the territory of a host Member State. The robbery is not only a disturbance to other EU citizens’ peaceful coexistence, and a threat to society (in the sense that people’s security is at stake), but also the robbery runs counter to society’s, or rather a government’s public goal, which in this case is the protection of a basic right (right to property).152 One more point that brings the definitions of public policy and public security together is related to cases C-355/98, Comm’n v. Belgium, and C-54/99, Association Eglise de Scientologie de Paris v. The Prime Minister, in which the ECJ defined that, in order to be applied, both public policy and public security must meet two conditions. The first condition is that the limitations to free movement aim at stopping real and severe danger. The second condition is that the restrictive measure aims at protecting, “one of the fundamental interests of society” (Besters and Macenaite 2013, p. 2079). This means that the derogations from the free movement of persons must be interpreted strictly and must not be based on reasons of a general, preventive nature (as determined by case C-67/74 Bonsignore) (Kaczorowska 2013, pp. 747 and 760). In relation to the restriction of the right to freedom of movement on the ground of public health (which is only applicable upon first admission, or within the 3 months of residence) (Guild et al. 2014, p. 248), the directive is clearer in comparison with the other two definitions, as enshrined in Article 29: Public health 1. The only diseases justifying measures restricting freedom of movement shall be the diseases with epidemic potential as defined by the relevant instruments of the World Health Organisation and other infectious diseases or contagious parasitic diseases if they are the subject of protection provisions applying to nationals of the host Member State. 2. Diseases occurring after a three-month period from the date of arrival shall not constitute grounds for expulsion from the territory. 3. Where there are serious indications that it is necessary, Member States may, within three months of the date of arrival, require persons entitled to the right of residence to undergo, free of charge, a medical examination to certify that they are not suffering from any of the conditions referred to in paragraph 1. Such medical examinations may not be required as a matter of routine.153

152

Based on the values of a society, states often argue public policy because they try to achieve “certain public goals, such as promotion of education, prohibition of drug usage, increased economic efficiency, protection of basic rights, and many other policies”, see: Ghodoosi (2016, p. 699). 153 Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States. OJ L 158, 30.4.2004, pp. 77–123.

192

5 The Legal and Normative Framework on Migration in Germany and in the. . .

As opposed to the definitions of public policy and public security, the definition of public health holds an objective character, as the only diseases able to justify any restriction on the freedom of movement are the ones with epidemic potential and other infectious diseases or contagious parasitic diseases. As Article 29 above states, in the cases of infectious diseases or contagious parasitic diseases, these are only considered as a way to justify restrictions to the freedom of movement if they are the subject of protection provisions applying to nationals of the host Member State. In relation to the last paragraph of Article 29, which refers to restraint on medical examination, it is important to mention that the goals of its introduction aimed at stopping, “the practice of certain Member States to submit beneficiaries of the right of residence to medical checks” (Ristea 2011, p. 729). According to Ristea, these medical checks could be freely executed by Member States in cases in which migrants do not suffer from the diseases described in paragraph 1. However, these medical examinations shall be done under three conditions: (a) If there are serious indications that this is necessary; (b) Within three months from the date of arrival; (c) The examinations must not acquire a systematic character which would compromise the effectiveness of provisions related to the release of the registration certificate or of the residence permit, as appropriate (Ristea 2011, p. 729).

In reality, these prescribed limitations to free movement are difficult to enforce. In this system, “where border controls on the movement of persons within the area are not permitted in principle (. . .), expulsion orders and bans are difficult to police” (Guild et al. 2014, p. 247). In this sense, even if an individual is expelled to another Schengen area Member State on the grounds of public policy, public security or public health, “there is no practical way to ensure that the person does not reappear the next day back in the State from which he or she had been expelled” (Guild et al. 2014, p. 248).

5.2.1.4

Protection Against Expulsion and the Possibility of Compulsory Withdrawal of EU Citizens on the Grounds of Abuse of Rights or Fraud

When it comes specifically to expulsion, host Member States “may not take an expulsion decision against Union citizens or their family members who have a right to permanent residence on their territory”, irrespective of their nationality (Hailbronner 2007, p. 321). However, as previously mentioned, expulsion of Union citizens and their family members with residence permit is possible on serious grounds of public policy, public security or public health. It shall not, however, be invoked to serve economic ends as a way of controlling the job market, as stated by article 27 (1) of the Directive 2004/38/EC. For Guild, Peers, and Tomkin, the prohibition on serving economics ends: is particularly important as it means that just because an individual is unemployed or that there is a high rate of unemployment in a particular Member State, a host State cannot refuse

5.2 European Union Law and the Free Movement of People

193

entry or seek to expel an EU citizen or his or her family members in order to diminish the number of unemployed people on the territory, without prejudice to the possible loss of free movement rights pursuant to Article 14, due to becoming a ‘burden on the social assistance system’ and so no longer meting the conditions of Articles 7(1)(b) or (c), 12(1) or (2), or 13 (Guild 2014, p. 256).

Moreover, para. 2 of the same article considers that the recognition of these serious considerations, “shall be based exclusively on the personal conduct of the individual concerned”.154 Once again, this provision states that considerations of general prevention about a specific EU citizen or his/her family members shall not be recognized. Therefore, only a genuine, present (not presumptive) and sufficiently serious threat affecting one of the fundamental interests of society shall be considered in order to justify the exemption of EU citizens’ and/or their family members expulsion.155 The application of the expulsion measures based on the grounds of public policy and public security depends also, but not exclusively, “on the level of integration in the host Member State of the individual in question” (Besters and Macenaite 2013, p. 2080). This becomes clear by reading Article 28 of the Directive, where other conditions for the protection against expulsion are also presented: Article 28 Protection against expulsion 1. Before taking an expulsion decision on grounds of public policy or public security, the host Member State shall take account of considerations such as how long the individual concerned has resided on its territory, his/her age, state of health, family and economic situation, social and cultural integration into the host Member State and the extent of his/her links with the country of origin. 2. The host Member State may not take an expulsion decision against Union citizens or their family members, irrespective of nationality, who have the right of permanent residence on its territory, except on serious grounds of public policy or public security. 3. An expulsion decision may not be taken against Union citizens, except if the decision is based on imperative grounds of public security, as defined by Member States, if they: (a) have resided in the host Member State for the previous ten years; or (b) are a minor, except if the expulsion is necessary for the best interests of the child, as provided for in the United Nations Convention on the Rights of the Child of 20 November 1989.156

154

Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States. OJ L 158, 30.4.2004, pp. 77–123. 155 On an in-depth-analysis of para. 2 of Article 27, including aspects such as: the proportionality that has to exist on the understanding of a genuine, present, and sufficiently serious threat; the necessity of basing the restriction on a “personal conduct”; the rule concerning previous criminal convictions; the degree of threat, as well as the ban on general preventive measures, see: Guild et al. (2014, pp. 257–263). 156 Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States. OJ L 158, 30.4.2004, pp. 77–123 (our emphasis).

194

5 The Legal and Normative Framework on Migration in Germany and in the. . .

Two important points can be taken from this article. The first one is that para. (3) only refers to Union citizens, excluding these citizens’ TCN family members. Nevertheless, because of the expression “irrespective of nationality” in para. (2), TCN family members could still qualify for the protection provided by par. (2), as well as for protection in para (1) regarding their length of residence on the territory (Guild et al. 2014, p. 270). Also, in order to para. (3) to be applied to a case, it is necessary that the Union citizen has either resided in the host Member State for 10 years, or is a minor. As discussed, the restriction to freedom of movement is an exception to one of the fundamental rights of the EU. There are, however, exceptions to expelling an EU citizen or restricting his/her free movement within the region. Article 28 provides the definition for this “exception to the exception”. It prevents host Member States from expelling157 EU citizens or their family members depending on the grounds of public policy and depending on how integrated EU citizens and/or their family members are in the host Member States. In this sense, “the Directive distinguishes between ‘grounds’ and ‘serious grounds’ of public policy and public security and an additional ‘imperative grounds’ for public security” as conditions for not taking expulsions decisions against EU citizens (Besters and Macenaite 2013, p. 2080). Article 28 contains a relatively high level of protection for EU citizens and their family members against expulsion from their host Member States. We observe a scale of increasing protection of the individuals, in which para. 1 is the least and para. 3 the most protective measure provided by the Directive, “depending on the length of residence of the individual or in the event that he or she is a minor” (Guild et al. 2014, p. 276). This means that, before taking an expulsion decision based on ‘public policy or public security’, certain facts will be taken into consideration by a Member State, such as the period of residence, age, state of health, family and economic situation, social and cultural integration into the host Member State. According to the ECJ, “there are a series of proportionality assessments which must be undertaken by the national authorities and their courts” (Guild et al. 2014, p. 276). These distinctions between serious requirements and imperative requirements of public policy and public security were decided upon the judgement of cases C-482/01 Orfanopoulos, C-145/09 Tsakouridis, and C-348/09 P.I. In the Tsakouridis case, dealing in narcotics as a part of an organized group, was considered an act that could justify the expulsion of an individual on ‘imperative grounds of public security’ under the terms of Article 28 (3): since drug addiction represents a serious evil for the individual and is fraught with social and economic danger to mankind (. . .) trafficking in narcotics as part of an organised group could reach a level of intensity that might directly threaten the calm and physical security of the population as a whole or a large part of it.158

Even though the wording of Article 28 refers to “expulsion”, “presumably it would also apply if a State refuses to re-admit a person who still retains a right of residence or permanent residence in the host State, and is returning there after a visit to another State”. See: Guild et al. (2014, p. 264). 158 See judgement of the case C-145/09, para. 47. 157

5.2 European Union Law and the Free Movement of People

195

The ECJ also determined in the same case that, if a national court in a finding of facts decides that an individual has lost the greater protection enshrined in para. (3), “he or she may still be entitled to the enhanced protection under Article 28 (2) because he or she holds permanent residence status” (Guild et al. 2014, p. 269). However, when this case is compared with the P.I. case, it is observed that the ECJ missed an opportunity to give a more detailed definition of what “imperative grounds of public policy” means. In this case, the defendant I. was accused of repeated (over years) sexual abuses against a young child. I. did not necessarily threaten the calm and the physical security of the population as a whole, therefore the court did not go along with the Advocate General’s opinion159 and decided that the Directive must be interpreted as meaning that it is open to the Member States to regard criminal offences such as those referred to in the second subparagraph of Article 83(1) TFEU as constituting a particularly serious threat to one of the fundamental interests of society, which might pose a direct threat to the calm and physical security of the population and thus be covered by the concept of ‘imperative grounds of public security’, capable of justifying an expulsion measure under Article 28(3), as long as the manner in which such offences were committed discloses particularly serious characteristics, which is a matter for the referring court to determine on the basis of an individual examination of the specific case before it.160

As explained above, the ECJ did not use the definition of “imperative grounds of public policy”, which could leave jurists in doubt as to what is the role played by the court when defining and discussing essential elements that should define the stay or expulsion of a Union citizen in any of EU Member States. In this sense, once an EU Member State decides that the expulsion of an individual is justified, “then the authorities must spell out the grounds”; the protection to expulsion measures shall then follow other steps. After the authorities have established the grounds, “then there is a proportionality test against those grounds” (Guild et al. 2014, p. 276). The level of seriousness of the grounds for expulsion rise by increments of five years – from one to five years it is the basic standard. From five to ten year (assuming the individual has acquired permanent residence) the threshold is ‘serious grounds’, and from ten years’ residence onwards it is ‘imperative grounds of public security’ (Guild et al. 2014, p. 276).

Further, any rights of EU citizens and their third country family members that are enshrined in the Directive might be restricted, as laid down by its Article 35: Article 35 Abuse of rights

159 On this dissention opinion, see: Kaczorowska (2013, pp. 754–755), and Guild et al. (2014, pp. 270–278). 160 Rules of the case C-348/09.

196

5 The Legal and Normative Framework on Migration in Germany and in the. . .

Member States may adopt the necessary measures to refuse, terminate or withdraw any right conferred by this Directive in the case of abuse of rights or fraud, such as marriages of convenience. Any such measure shall be proportionate and subject to the procedural safeguards provided for in Articles 30 and 31.161

For Ziegler (2011, p. 295), the wording of Article 35 takes account of ECJ’s case law. According to the author, in addition to the articles 27 and 28 of the Directive, article 35 is used as one more justification for the EU Member States to derogate from the application of EU rights in limited circumstances. Once again, under the terms of the Directive, the free movement is restricted and once more the Directive did not clearly define terms for what “abuse of rights” or “fraud” meant in this case. Furthermore, “the relationship between abuse and fraud in the wording of the Directive is not clear” (Ziegler 2011, p. 296). For the sake of a minimum legal security, these definitions, as well as the distinctions between the two terms, must be presented. According to Szabados (2017, p. 84), the abuse of rights encompasses conducts which are perpetrated with the sole purpose of benefiting from free movement and residence in the EU. These conducts might be formally respecting the provisions of EU law, but they do not comply with the purposes and intentions of these provisions. When the same author defines fraud, he understands it as the use of fraudulent documentation or as the making of a false representation in both administrative and court procedures, so that it could be possible to benefit from free movement and residence rights. As noted by Neal (2013, p. 47), there is a Communication from the Commission to the European Parliament and the Council on guidance for better transposition and application of Directive 2004/38/EC, while dealing with cases of fraud and abuse of rights. This document defines the concept of abuse and fraud when they are both perpetrated when trying to acquire free movement rights: 4.1. Concepts of abuse and fraud 4.1.1. Fraud For the purposes of the Directive, fraud may be defined as deliberate deception or contrivance made to obtain the right of free movement and residence under the Directive. In the context of the Directive, fraud is likely to be limited to forgery of documents or false representation of a material fact concerning the conditions attached to the right of residence. Persons who have been issued with a residence document only as a result of fraudulent conduct in respect of which they have been convicted, may have their rights under the Directive refused, terminated or withdrawn [60]. 4.1.2. Abuse For the purposes of the Directive, abuse may be defined as an artificial conduct entered into solely with the purpose of obtaining the right of free movement and residence under

161

Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States. OJ L 158, 30.4.2004, pp. 77–123.

5.2 European Union Law and the Free Movement of People

197

Community law which, albeit formally observing of the conditions laid down by Community rules, does not comply with the purpose of those rules [61].162

By analyzing the wording of the Directive and of the Commission’s document, it could be concluded that “fraud refers to a deception about a condition of a right being met, where the condition is not formally fulfilled, such as the forgery of a marriage certificate where there is no marriage” (Ziegler 2011, p. 296), considering that a marriage of two people is the condition for the application of the Directive when the rights of entry and stay of an EU citizen is at stake. In this case, a document or certificate should be able to declare a certain condition that would immediately grant the right of stay or residence within the Union. Costello goes along with this thought when she affirms that fraud means “an objective falsehood and dishonesty in claiming entitlement to a benefit”, to which she adds the example of a forged EU passport whose counterfeiting aims at the acquisition of EU citizenship, i.e., the acquisition of a legal status “that is objectively false” (Costello 2011, p. 324). Guild, Peers, and Tomkin also agree with the interpretation of the Commission on the concept of “fraud”, as it only exists in the context of Article 35 “where the person concerned does not have a right under the Directive at all, but is pretending to do so fraudulently”, as it is in the case of the forged EU passport (Guild et al. 2014, pp. 301–302). “In contrast, abuse might be taken to refer to the situation where pro forma all requirements are met, giving otherwise rise to a right, but there is a flaw in the motive or purpose” (Ziegler 2011, p. 296). This is the case of marriages of convenience, as it is mentioned in the wording of Article 35 and that should be considered as a case of abuse of law. We agree with Dougan when he affirms that it is difficult to see how the idea of abuse of law can apply in the context of the free movement of Union citizens and their family members, especially because one of the main elements that characterize the abuse of law “is that the individual is using EU law for reasons other than its intended purpose” (Dougan 2011, p. 362). However, in some cases, the limitation to the free movement due to abuse of law could be relativized: While an outright refusal of free movement rights is appropriate in cases where the conditions for free movement rights were fraudulently manufactured, this would not be appropriate where the persons concerned had a genuine marriage but moved to another Member State solely to avoid restrictions under national immigration law – assuming that Article 35 applies to such categories of cases at all. In such cases, it would be proportionate for the Member State concerned to insist that the family members still had to comply with the conditions of national immigration law for entry (. . .), without prejudice to the possibility that the EU citizen and his or her family might still choose to exercise genuine and effective free movement rights in another Member State (Guild et al. 2014, p. 303).

In this context of the Directive, the abuse of rights shall be analyzed on a case-bycase basis, mainly because the motivation behind peoples’ actions depends on an endless number of variables, “from mere economic one to more individual ones such as personal preferences, the location of family and friends, etc.” (Spaventa 2011, 162

Communication from the Commission to the European Parliament and the Council on guidance for better transposition and application of Directive 2004/38/EC on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States, COM/2009/0313 final, Brussels, 2 July 2009.

198

5 The Legal and Normative Framework on Migration in Germany and in the. . .

p. 317). In this sense, it becomes difficult to identify how personal preferences and personal motivations which are put into practice could be considered an abuse exercise of the rights enshrined by the Directive. Since the ECJ has not yet clarified the meaning of Article 35, we agree with Guild, Peers, and Tomkin that the court’s position on it shall act in the interest of legal certainty (Guild et al. 2014, p. 310). Even though we are not getting through the procedural safeguards and aspects of EU citizens seeking to enforce their rights of entry and residence, we must mention Article 32 of the Directive which determines the duration of the exclusion orders: Article 32 Duration of exclusion orders 1. Persons excluded on grounds of public policy or public security may submit an application for lifting of the exclusion order after a reasonable period, depending on the circumstances, and in any event after three years from enforcement of the final exclusion order which has been validly adopted in accordance with Community law, by putting forward arguments to establish that there has been a material change in the circumstances which justified the decision ordering their exclusion. The Member State concerned shall reach a decision on this application within six months of its submission. 2. The persons referred to in paragraph 1 shall have no right of entry to the territory of the Member State concerned while their application is being considered.163

In this regard, it is relevant to mention that “a Member State is not allowed to expel for life from its territory a national of another Member State” (Kaczorowska 2013, p. 756). This aspect has been analyzed by case C-348/96 Calfa.164 In this context of compulsory withdrawals and expulsions, it is important to mention the Council Framework Decision on the European Arrest Warrant (2002/ 584/JHA),165 whose goal is to abolish extradition between Member States by replacing a system of surrender between judicial authorities, with a Union-wide system of enforcement of judicial decisions by arrest warrants. Citizenship of the Union is the basis of the wording of the Framework Decision. With the argument of the free movement of EU citizens within the region, and within the context of the Area of Freedom, Security and Justice, it is: “a logical conclusion to abolish formal extradition procedures among the Member States in respect of persons who are

163

Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States. OJ L 158, 30.4.2004, pp. 77–123. 164 In this case, the ECJ stated that the conditions for the application of the public policy exception were not fulfilled because the expulsion for life declared by a Greek court “automatically follows a criminal conviction” and did not consider the personal conduct of the defender or any possible danger that the defender could represent for the menace of public policy. It is important to note that the ECJ in this case exclusively considered that an automatic expulsion for life following a criminal conviction does not fulfill the conditions for the application of the public policy exception. For more comments on this decision, see: Rotaeche and Llorens (1999, pp. 357–364). 165 Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (2002/584/JHA). OJ L 190, 18.07.2002, pp. 1–20.

5.2 European Union Law and the Free Movement of People

199

fleeing from justice after having been sentenced, and arrested persons suspected of having committed an offence” (Hailbronner 2007, p. 326). Since these measures refer to an instrument of judicial cooperation in criminal matters, rather than a group of measures specifically related to the migratory status of an EU citizen and/or of his/her family members, the analysis of the European Arrest Warrant is out of the scope of the present work.

5.2.2

The European Union’s Third Country Nationals Approach on Migration

Before we focus on the EU’s policy on legal migration of third-country nationals, it is important to mention two points that also tangentially touch the free movement of TCN within the region, but do not belong to the present study. The first one refers to the EU’s action on asylum, which since 2007 has undergone substantial reforms becoming one of the hot topics on EU studies, especially since the “refugee crisis” of 2015.166 The EU’s action on asylum is reflected on the Common European Asylum System (CEAS), “which includes the Dublin Regulation, the Asylum Directives, and the European Refugee Fund and European Asylum Support Office” (Hampshire 2016a, p. 538). The EU’s actions on this topic have been a highly controversial issue in recent years,167 especially when it comes to the Dublin Regulation, under which (. . .) asylum-seekers must usually claim asylum in the first EU country they enter, a ‘onestop’ principle intended to prevent multiple applications and so-called asylum-shopping. If an asylum-seeker is found to have made a claim or simply been detected transiting through another EU member state (using the Eurodac fingerprint database), then they may be returned to that country. This has had the (predictable) effect of placing the responsibility of processing asylum applications on states with an external border, especially to the south and south-east, where many asylum-seekers enter (. . .) (Hampshire 2016a, p. 538).

Among a collapsed Dublin system, not-harmonized asylum legislation and practices across European States, and questionable reception conditions of refugees, the EU also included in its agenda “the fight against irregular immigration”, which is the second point to be mentioned. According to Hampshire, the fight against irregular migration “is a fight waged with many weapons, some targeted at preventing unauthorised entry at the external borders, others at the detection and removal of irregular residents”; indeed, since 2005, the EU’s external border agency (Frontex) has been coordinating Member States’ controls at the external borders. However, “the day-to-day business of detecting and intercepting irregular immigrants remains predominantly a national matter, undertaken by police, immigration officials, and

For a review and explanation on the “refugee crisis”, which in our opinion figures rather as a crisis of asylum systems, see: Sola (2018). 167 For an in-depth explanation on the main legal framework for the EU asylum system, see also: Hailbronner and Thym (2016, pp. 1023–1053). 166

200

5 The Legal and Normative Framework on Migration in Germany and in the. . .

increasingly an array of co-opted non-state actors” (Hampshire 2016a, p. 539). In reality, irregular migration within the EU is a vast topic that deserves a work dedicated to itself. Indeed, the power that a state has to exercise authority over individuals living in its territory is also expressed by the control of migration and the laws that guide the entry, stay, and exit (compulsory or not) of a foreigner of a state’s territory. In other words, the state has wide discretion to decide on the admission of migrants into its borders (under the limits of principles of international law—such as the principle of non-discrimination—and of applicable international agreements) (Perruchoud 2012, p. 124). We have observed that, due to the European Union’s supranational legal nature, EU legal provisions on the free movement of people exercise “an important constraint on member states’ national prerogatives in the area of migration policy” (Boswell and Geddes 2011, p. 200). These constraints are related not only to a Member State’s national jurisdiction over entry and stay of migrants into/in a Member State’s territory, but also to the rights and status of EU citizens and of third-country nationals on its territory. In fact, Bigo and Guild go on to affirm (2005, p. 235) that the Union has to decide on the movement of people by dividing the world into four categories. The first one relates to EU’s Member States “whose nationals have a right to enter and reside on the territory of one another which right can only be circumscribed in very limited circumstances”; secondly, the authors refer to “countries with an especially privileged relationship with the Union whose nationals enjoy equivalent rights – the European Economic Area” (Bigo and Guild 2005, p. 236). The authors also make reference to “favoured countries which appear on the ‘white list’ of the Community visa regulation, which means their nationals do not require visas to enter the territory of the Union”; lastly, the authors affirm that the European Union also considers the movement of people within a fourth category composed by “countries whose nationals are by definition as such suspect – those on the regulation’s ‘black list’ who must always have a visa obtained abroad before arriving at the borders of the Union” (Bigo and Guild 2005, p. 236). In this context, Member States’ laws have to adapt in order to meet the requirements of the Union. Modolo (2015, p. 577), citing Stolcke, affirms that the European Union’s integration process consists of a double process: on the one hand, one observes the permeability of Europe’s internal borders; on the other hand, one finds the securitization of the borders for the exterior, with strict judicial controls that exclude immigrants from outside the European Union. Modolo argues that there is a strong contrast between the free movement of EU citizens within the territory of the European Union and the limited immigration regime for third-country nationals into the EU borders. This kind of segregation diminishes by the time other States join the Union. In this context, through the European Union’s expansion, millions of people are incorporated into the European Union’s regime, once those people, who once were considered as third-country nationals, become EU’s citizens (Modolo 2015, p. 577). Integration has been at the core of the EU, it “has been subject to deep and dynamic transformations when developing a common legal framework covering the conditions of entry and residence of TCNs on the EU – a common EU immigration policy” (Carrera 2009, p. 6).

5.2 European Union Law and the Free Movement of People

201

As already mentioned in Sect 5.2.1 of this book, a common immigration policy for TCN started to be designed during the European Council Conclusions in Tampere in 1999. One of the goals of this meeting, contained in the Tampere Milestones, was the fair and equitable treatment given to third country nationals, which served as grounds for the development of the EU’s secondary legislation, such as the Long Terms Residents’ Directive (Directive 2003/109), as well as the Family Reunification Directive (Directive 2003/86) (Guild 2013, p. 44). In 2005, the EU worked on its external dimension of migration policy (i.e. on a policy directed to third-country nationals) by creating a strategic framework called the Global Approach to Migration:168 The Global Approach was intended to coordinate the various policy instruments and processes that the EU uses to engage with third countries, and also to concentrate attention on major sending and transit regions. Initially, the focus was on the southern Mediterranean and Sub-Saharan Africa, especially the ‘the fight against illegal immigration’ in those regions, but gradually the geographical scope has been expanded and other types of movement have been incorporated. In 2012, the Council accepted the Commission’s proposal to relaunch the Global Approach to Migration as the Global Approach to Migration and Mobility (GAMM), which in classic EU-imagery was organised into four ‘pillars’ dealing with legal migration and mobility, the prevention of irregular migration, the development impact of migration, and international protection and asylum (Hampshire 2016a, p. 572).

Not surprisingly, the Charter of Fundamental Rights of the European Union (OJ C 326, 26.10.2012, pp. 391–407) also makes reference to the freedom of movement and establishment of TCN in the EU: Article 45 Freedom of movement and of residence (. . .) 2. Freedom of movement and residence may be granted, in accordance with the Treaties, to nationals of third countries legally resident in the territory of a Member State.

In the same context of the EU citizens, the Charter in its article 15 (1) also grants TCN the freedom to choose or accept an occupation and the right to engage in work. Also, as prescribed in article 15 (3), “nationals of third countries who are authorised to work in the territories of the Member States are entitled to working conditions equivalent to those of citizens of the Union”. How these guarantees, obligations, and The Global Approach to Migration was not the first initiative of the EU after the Conclusions of Tampere in 1999. In fact, in 2000, “the first indication by the European Commission on how it intended to translate the Tampere milestones into concrete actions took the form of the Communication on a Community Immigration Policy COM (2000)757 of 22 November 2000”, see: Carrera (2009, p. 52). This communication already contained some points on the integration of TCN, just as many other documents that came after it, as for example the Communication (2001)387. In fact, Carrera considers both of these Communications the starting point for the development of European law on regular immigration, as well as of the EU framework on integration (Carrera 2009, p. 59) However, we opted for reducing the time frame concerning the history of protection of TCN within the EU, as we want to focus on the Directives’ provisions.

168

202

5 The Legal and Normative Framework on Migration in Germany and in the. . .

rights of TCN within the EU are put into practice will be organized, firstly by presenting the international agreements on migration that the EU concludes with third countries, and secondly presenting and debating the entry, stay, and compulsory withdrawal of TCN under the light of some of the EU’s Directives.

5.2.2.1

Migration Agreements Between the European Union and Third Countries

When it comes to the treatment given to the free movement of TCN within the EU, we must not forget one of the most important competences of the EU as an international actor, namely, its competence to conclude international agreements (the EU’s association competence, provided by article 217, TFEU, OJC 326, 26/10/ 2012, pp. 1–390169). According to Sánchez, the international agreements the EU concludes have been “the major vehicle to integrate elements relating to the free movement of third-country nationals into its external agreements” (Sánchez 2015, p. 170). In fact, the broad scope of migration competences that the EU internally has, “gives the Union a wide margin to conclude agreements dealing with the status and admission of third-country nationals” (Sánchez 2015, p. 173). This special treatment given to TCN from specific countries170 allows them enjoyment of entry and/or residence rights on the basis of an Association/Partnership Agreement. According to these agreements, the Union creates a link with a non-Member State country, which takes part in the EU’s system (Wiesbrock 2010, pp. 115–116). In this context, it is important to mention that the EU has “used different terms for the agreements it has concluded with third countries, such as ‘association agreements’, ‘cooperation agreements’ and ‘partnership agreements’” (Eisele 2014, p. 12). In this regard, we turn to Eisele’s comments, in which she affirms that, according to Demirel171 case, the definition of ‘association’ was not able to be found in the treaties; the case understood “that an association agreement created special, privileged links with a non-Member State which had to take part, at least to a certain extent”, in the system of the Union (Eisele 2014, p. 12). Eisele understands that, on the one hand, the idea of association of a third country and the EU was usually related to a possible future EU membership, on the other hand “the terms of ‘cooperation’ and ‘partnership’ have consistently been used for countries unequivocally having no prospect of accession” (for geographical reasons, for example); still, even though the text of article 217 TFEU uses the term “association”, the article has “served as a legal basis for all of the three agreement listed” (Eisele 2014, p. 12).

169

Article 217: The Union may conclude with one or more third countries or international organisations agreements establishing an association involving reciprocal rights and obligations, common action and special procedure. 170 In order to understand how and why these special treatments are compatible with the prohibition of nationality discrimination provided by Article 18 TFEU, see: Eisele (2014, pp. 190–212). 171 Case C-12/86.

5.2 European Union Law and the Free Movement of People

203

Therefore, the name given to these agreements does not seem to play an important role in its nature, which is to agree on a special migration regime between the EU and a third country. Depending on their nationality, some TCNs might have to rely on a greater set of rights rather than TCNs that solely depend on the EU’s regular legal framework dedicated to the stay and residence of non-EU citizens (Eisele 2014, p. 3). Actually, the association agreements “are commonly concluded in exchange for commitments in the political or economic sphere, such as on trade or human rights reform” (Boeles et al. 2014, p. 97). Daniel Thym also states, both the content and the reach of the association agreements and of their related bilateral treaties “is subject to political compromises between the contracting parties” (Thym 2015, p. 36).172 This, in our opinion, is one of the various moments in which EU law (and in this case EU migration law) proves to be shaped for the sake of a successful European economic and political advance rather than for immigrants’ well-being.173 As a matter of fact, there are some TCNs that have a privileged position in relation to other ones due to these international agreements the EU has signed with third countries.174 We will not compare the difference of rights granted to TCN under the terms of international agreements with those under the scope of EU migration law framework. Our intention here is to make the reader aware that there are privileged and legally justified migration regimes for some TCNs and that, as determined by ECJ case C-61/94 Commission v Germany, international agreements on migration ratified by the EU take precedence over EU legislation (Peers 2015, p. 204). This means that, in case there is any conflict between the EU legislation and the treaties, the international treaties shall prevail. In Peers’ opinion, this does not mean however, that the EU immigration legislation and association agreements compound two separate sources of law; even though “EU legislation does give priority to the association agreements, there is nothing in the text of any agreement or any EU immigration legislation to suggest that these are two separate sources” of EU

172

Not to mention bilateral agreements between EU countries and third countries. In this regard, Sánchez affirms that it is hard to find a “pure” migration bilateral agreement, as not only privileges are provided by the treaties because of political and economic reasons, but also in order to strengthen diplomatic relations with countries linked by historical or colonial ties. See: Sánchez (2015, p. 180). 173 Especially because these agreements might not only refer to legal migration, regarding TCNs admission and legal status, but also to agreements that fight against irregular migration, providing rules for repatriation, readmission, technical and political cooperation when managing migration flows. For further information on this topic, see: Sánchez (2015, p. 179). 174 Just to name the most relevant ones, in which there are provisions that are comparable to the European citizenship rights: The European Economic Area Agreement, which covers Iceland, Liechtenstein and Norway; the Agreement on the free movement of persons with Switzerland and the Association Agreement with Turkey. For further information see: Kochenov and van den Brink (2015, p. 91). For a detailed explanation on the various EU Association Agreements and cooperation frameworks, see: Eisele (2014, pp. 189–275).

5 The Legal and Normative Framework on Migration in Germany and in the. . .

204

immigration law (Peers 2015, p. 205). In fact, if we examine both EU immigration law175 and the association agreements, we will realize that there are many “circumstances in which the two sets of rules will be closely interconnected” (Peers 2015, p. 205). Our goal in this work, however, is to analyze the general regime on migration for TCNs, i.e., the EU Directives and their provisions regarding the entry, stay and the compulsory withdrawal of TCNs as trying to establish a parallel with MERCOSUL’s treatment given to its non-citizens.

5.2.2.2

Entry, Stay, and Compulsory Withdrawal of TCN Under the Light of the EU’s Directives

In order to define and restrict the scope of the analysis of the entry, stay, and compulsory withdrawal of TCN under the light of the EU’s Directives, we relied on the EU’s statistics on migration, mainly on the statistics on residence permits and residence of third-country nationals (Eurostat 2017a). These statistics are guaranteed by Article 6 of the Regulation (EC) No 862/2007, as follows: Article 6 Statistics on residence permits and residence of third-country nationals 1. Member States shall supply to the Commission (Eurostat) statistics on: (a) the number of residence permits issued to persons who are third-country nationals, disaggregated as follows: (i) permits issued during the reference period whereby the person is being granted permission to reside for the first time, disaggregated by citizenship, by the reason for the permit being issued and by the length of validity of the permit; (ii) permits issued during the reference period and granted on the occasion of a person changing immigration status or reason for stay, disaggregated by citizenship, by the reason for the permit being issued and by the length of validity of the permit; (iii) valid permits at the end of the reference period (number of permits issued, not withdrawn and not expired), disaggregated by citizenship, by the reason for the issue of the permit and by the length of validity of the permit; (b) the number of long-term residents at the end of the reference period, disaggregated by citizenship. 2. Where the national laws and administrative practices of a Member State allow for specific categories of long-term visa or immigration status to be granted instead of residence

175

In this case, EU immigration law in the sense of secondary legislation in EU law, which is legally binding upon Member States but that is “not a special kind of EU law that might be regarded as less legally binding upon Member States when [compared] to other Directives dealing with other European policies”, see: Carrera (2009, p. 151).

5.2 European Union Law and the Free Movement of People

205

permits, counts of such visas and grants of status are to be included in the statistics required under paragraph 1. 3. The statistics referred to in paragraph 1 shall relate to reference periods of one calendar year and shall be supplied to the Commission (Eurostat) within six months of the end of the reference year. The first reference year shall be 2008.176

As it can be understood from the text of Article 6 of the aforementioned Regulation, the statistics on residence permit granted to TCN might be disaggregated by citizenship, by the reason for the issue of the permit and by the length of validity of the permit. In order to maintain our analysis focused, and restrict the subject of our study, we are concentrating on the reasons TCN argue when applying for their first residence permit. These main reasons include: employment opportunities, family reconciliation and educational opportunities, as well as “other reasons”, that encompass stays without the right to work or stay for the sake of international protection (Eurostat 2017a). We are focusing on the profile of year 2016.177 As it can be understood from Eurostat’s data, the greatest number of first residence permits, i.e., of the first permits which are granted to a TCN so that he/she can reside within the EU, consists of people who want to reside in the EU for ‘other reasons’ “(1.03 million, or 31% of all first permits issued), followed by employment-related reasons (853 thousand, or 25%), family-related reasons (779 thousand, or 23%) and education-related reasons (695 thousand, or 21%)” Eurostat 2017a). In this context, we will consider the first two reasons TCN have for applying for a residence permit, once they together represent 56% of the first residence permits granted for the sake of our legal analysis, namely: ‘other reasons’ and employment-related reasons.178 Therefore, we will exclude from our analysis the directives that deal with stay and residence in the Union for family- and education-related reasons.179 Before commenting on the sample given by Eurostat with the Directives, it is important to note the ‘other reasons’ for the granting of first residence permits to TCN. According to Eurostat, ‘other reasons’ refer to, among other cases, international protection, any kind of residence without the right to work (for example, pensioners), or people in the intermediate stages of a regularisation process” (Eurostat 2017a). It is important to mention that the data Eurostat bases its statistics 176

Regulation (EC) No 862/2007 of the European Parliament and of the Council of 11 July 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, OJ L 199, 31.7.2007, pp. 23–29. 177 Data from the UK is not included. The tables the residence permits statistics was based on had its last update on 13 July 2019 and are available via http://appsso.eurostat.ec.europa.eu/nui/show.do? dataset¼migr_resfirst&lang¼en. 178 Curiously, Brazilians are in 10th place in the list of main citizenships of TCNs granted first residence permits in the EU. The majority of them are residing in the EU for education reasons (41.6%), see: Eurostat (2017a). 179 Such as, for example: Directive (EU) 2016/801 of the European Parliament and of the Council of 11 May 2016 on the conditions of entry and residence of third-country nationals for the purposes of research, studies, training, voluntary service, pupil exchange schemes or educational projects and au pairing, OJ L 132, 21.5.2016, pp. 21–57, as well as Council Directive 2003/86/EC of 22 September 2003 on the right to family reunification, OJ L 251, 3.10.2003, pp. 12–18.

206

5 The Legal and Normative Framework on Migration in Germany and in the. . .

on is provided by each EU Member State, so that not only “a cross-country comparison based on this miscellaneous category is hampered by the differences that exist in the national administrative and legislative systems” (Eurostat 2017a), but also the definition of persons with an international protection might vary from one country to another. This means that, within these numbers provided by Eurostat,180 people that under a specific law of a specific Member State are considered as refugees might be considered as people under subsidiary protection by other EU Member States. As this is a work focused on voluntary migration,181 we will devote our studies to EU Directives presented hereunder. We do not intend to exhaust all provisions and aspects comprised in the Directives, especially because each one of them could be the focus of study and research of one sole book. The intention in this section is to provide enough legal material for the comparison between the MERCOSUL and the EU systems in regard to their treatment given to TCN. This legal material is concentrated on the degree of freedom provided by the EU legal system for TCN to voluntarily enter, stay or to be forced to leave the EU and it focuses on the ratio behind each of the following EU Directives rather than on every single legal provision they contain. Also, it is important to mention that by the time several directives in the area of legal migration have been adopted by the EU, “the legal position of all third-country nationals, irrespective of nationality, has been reinforced, inter alia as regards entry, employment and residence, as well as family reunification” (Eisele 2014, p. 276). There is another key point regarding entry and stay (or residence) rights of TCN. When it comes to entry of people into the EU territory, as we have discussed before, we affirmed that all EU citizens have the right to free movement, i.e., all of them have access to the whole territory of the EU, but it is “for the individual Member States to secure these rights”; on the other hand, the entry of TCN is more restricted, as they have the “right to circulate within the Schengen Area during short term of, at most, three months after legal entry” (Boeles et al. 2014, p. 39). When it comes to residence rights, those that are granted under EU law “are only defined in relation to the territory of one Member State”, as there is no right to a residence permit, neither for TCN nor for EU citizens, that includes a right to residence in the territory of all EU Member States (Boeles et al. 2014, pp. 38–39). In contrast to EU citizens’ rights already studied in the previous topic, TCN “have no self-evident right (. . .) to enter or reside in EU Member States for purposes of economic activities. For them, Union law provides no freedom of movement of workers, no freedom of establishment or provision of services” (Boeles et al. 2014, p. 39). The next selected directives indicate how these limits to TCN are imposed by EU law and how voluntary migration of TCN is administered by the EU. A last observation before commenting on these directives regards the aforementioned policy differences that exist between entry and stay of TCNs, especially the

180

The reference metadata is available via http://ec.europa.eu/eurostat/cache/metadata/en/migr_res_ esms.htm. 181 See definition of voluntary and forced migration in Sect. 2.1.1.

5.2 European Union Law and the Free Movement of People

207

general rules on entry of people into the EU, which is also provided by the Schengen Borders Code.182 The Schengen Borders Code not only establishes rules that govern border control of both EU citizens and TCNs crossing the external borders, but it also “provides for the absence of border control at ‘internal borders’” (Boeles et al. 2014, p. 378). However, most of the provisions of the Code focus on TCNs. For example, entry conditions for TCN as provided in Article 6.183 It has to be noticed that the list of documents that might be demanded by the border guard from a TCN in order to verify the fulfillment of the conditions of entry set out in Article 6 is a non-exhaustive enumeration.184 This leaves room for arbitrariness in a TCN’s entry process into the EU territory.185 If the conditions of entry are not met, the entry to the 182

Regulation (EU) 2016/399 of the European Parliament and of the Council of 9 March 2016 on a Union Code on the rules governing the movement of persons across borders (Schengen Borders Code). OJ L 77, 23.3.2016, pp. 1–52. Originally known, in 2006, as “Regulation (EC) No 562/2006 of the European Parliament and the Council of 15 March 2006 establishing a Community Code on the rules governing the movement of persons across borders (Schengen Borders Code)”. The most recent version of the Regulation of 2016 was amended by Regulation (EU) 2017/458 of the European Parliament and of the Council of 15 March 2017. The latter amends Regulation (EU) 2016/399 as regards the reinforcement of checks against relevant databases at external borders. 183 Article 6 Entry conditions for third-country nationals 1. For intended stays on the territory of the Member States of a duration of no more than 90 days in any 180-day period, which entails considering the 180-day period preceding each day of stay, the entry conditions for third-country nationals shall be the following: (a) they are in possession of a valid travel document entitling the holder to cross the border satisfying the following criteria: (i) its validity shall extend at least three months after the intended date of departure from the territory of the Member States. In a justified case of emergency, this obligation may be waived; (ii) it shall have been issued within the previous 10 years; (b) they are in possession of a valid visa, if required pursuant to Council Regulation (EC) No 539/2001 (25), except where they hold a valid residence permit or a valid long-stay visa; (c) they justify the purpose and conditions of the intended stay, and they have sufficient means of subsistence, both for the duration of the intended stay and for the return to their country of origin or transit to a third country into which they are certain to be admitted, or are in a position to acquire such means lawfully; (d) they are not persons for whom an alert has been issued in the SIS for the purposes of refusing entry; (e) they are not considered to be a threat to public policy, internal security, public health or the international relations of any of the Member States, in particular where no alert has been issued in Member States’ national data bases for the purposes of refusing entry on the same grounds. 184

As affirmed by Article 6(3) of the Schengen Borders Code. We believe so, even though Article 14(2) of the Schengen Borders Code affirms that the refusal of entry is subject to a substantiated decision stating the precise reasons for the refusal. Once the list

185

208

5 The Legal and Normative Framework on Migration in Germany and in the. . .

territories of the Member States must be refused,186 as it is provided by Article 14 of the Schengen Borders Code. This does not mean, however, that the principle of refusal is not compatible with the issue of long-term visas: “the possession of a residence permit or a long-stay visa that entitles its holder to a longer period of stay makes it unnecessary to obtain an authorization for a short period of stay” (Boeles et al. 2014, p. 380). In other words, the refusal of entry in cases where the conditions provided by Article 6 are not met shall not prevail when the TCN is in possession of a residence permit or a long-stay visa. Conditions on visas for TCNs are determined by the Visa Requirement Regulation:187 Some categories of third-country nationals require a visa for crossing the external borders; others do not. If a third-country national is exempt from a visa requirement, he must apply for leave to enter at the border in accordance with the rules laid down in the Schengen Borders Code. The Visa Requirement Regulation enumerates the third countries whose nationals must be in possession of a visa when crossing the external borders, and those whose nationals are exempt from that requirement (Boeles et al. 2014, p. 380).188

The abovementioned regulation only refers to short-term visas, i.e., visas for transit or for intended stays no longer than 90 days in any 180-day period. Therefore, the competence for issuing long-stay visas is reserved to EU Member States. Since Boeles, den Heijer, Lodder and Wouters allege that while a “long-term visa often anticipates the issuing of residence permit in the host Member State, it should be borne in mind that Member States, when deciding on long-term visas, may be bound by Union legislation on legal immigration (. . .)” (Boeles et al. 2014, p. 380). This is when the EU directives burst upon the scene, defining long-term visas and/or residence permits for each of the TCN’s specific situation. In a sense, we are setting foot into not only entry but specifically into stay, residence and cases of mandatory departure of TCN. These visas, residence permits, and departures regarding TCNs are as numerous as the directives that determine the uniqueness of each situation. As anticipated in the lines above, our analysis on the residence and compulsory

of required documents for entry into the EU is a non-exhaustive one, the substantiated decision might be based on the necessity of a document that either does not exist in the TCN’s country of origin or cannot be fetched at the time of the admission into the EU territory. 186 Except in some cases of derogation of the conditions described in paragraph (1), which are provided by Article 6(5), as, for example, cases in which the TCN is entering the territory of a Member State on humanitarian grounds, because of an international obligation or because of a Member State’s national interest, among other reasons. 187 Council Regulation (EC) No 539/2001 of 15 March 2001 listing the third countries whose nationals must be in possession of visas when crossing the external borders and those whose nationals are exempt from that requirement. OJ L 81, 21.3.2001, pp. 1–7. This Regulation has suffered successive amendments and corrections until 2014, which have been incorporated to the basic text. 188 For further information on privileged and non-privileged visa rights of TCNs (the latter named by the author as Schengen Black List, also known as Schengen negative list) under a comparative approach, see: Eisele (2014, pp. 276–283).

5.2 European Union Law and the Free Movement of People

209

withdrawal rules for TCNs, in accordance with our methodological cut-off, will focus on the directives presented hereunder.

Council Directive 2003/109/EC of 25 November 2003 Concerning the Status of Third-Country Nationals Who Are Long-Term Residents Also known as the Long-Term Directive, Directive 2003/109/EC189 has a twofold purpose. It strengthens the protection from expulsion given to TCNs, and also guarantees the right of TCNs to settle in another Member State190 (even if this last one seems to be a quite modest intention) (Boeles et al. 2014, p. 177). After all, as provided in the Directive’s Preamble No. 4, the objectives of this instrument include the integration of third-country nationals who are long-term residents in the Member States, as well as the promotion of economic and social cohesion within the Union.191 This promotion of social and economic cohesion of TCNs can also be identified through the Directive’s Article 11(1) (a)-(h) in which TCNs are granted equal footing with nationals.192 The provisions of the Directive enable a long-term resident status providing a right to permanent residence which is presupposed by a five-year period of legal residence193 in a Member State (Thym 2016, p. 441). This long-term resident status, however, must be requested before the Member State’s national authorities by the 189

Council Directive 2003/109/EC of 25 November 2003 concerning the status of third- country nationals who are long-term residents. OJ L 16, 23.1.2004, pp. 44–45. 190 See Articles 14 and 15 of the Directive. 191 Preamble No. 4 of the Long-Term Directive. 192 According to the Article mentioned, these rights are: (a) access to employment and self-employed activity, provided such activities do not entail even occasional involvement in the exercise of public authority, and conditions of employment and working conditions, including conditions regarding dismissal and remuneration; (b) education and vocational training, including study grants in accordance with national law; (c) recognition of professional diplomas, certificates and other qualifications, in accordance with the relevant national procedures; (d) social security, social assistance and social protection as defined by national law; (e) tax benefits; (f) access to goods and services and the supply of goods and services made available to the public and to procedures for obtaining housing; (g) freedom of association and affiliation and membership of an organisation representing workers or employers or of any organisation whose members are engaged in a specific occupation, including the benefits conferred by such organisations, without prejudice to the national provisions on public policy and public security; (h) free access to the entire territory of the Member State concerned, within the limits provided for by the national legislation for reasons of security. Even though the Long Term Directive does not define the term “legal residence”, the ECJ in its case Singh, C-502/10, stated that the legality or illegality of a TCN’s residence must be in

193

210

5 The Legal and Normative Framework on Migration in Germany and in the. . .

TCN, as this status is not obtained by mere force of Union law.194 In addition, under the terms of the Directive, “all third-country nationals enjoy a right to family reunification” if these individuals are “lawfully residing in the territory of a Member State” (Eisele 2014, p. 344). In Carrera’s opinion, the Long-Term Directive “constitutes the victory of the European tradition recognising the need to grant secure juridical status to those regularly residing for a long-term period” (Carrera 2009, pp. 171–172). As it can be comprehended from Article 5 of the Long-Term Directive, the conditions for becoming a long-term resident are not strictly based on employment. Nevertheless, in order to acquire the long-term residence status in the first place, “the third-country national in question must dispose of stable and regular resources, which are sufficient to maintain himself/herself and his/her family without recourse to the social assistance system, next to a comprehensive sickness insurance” (Eisele 2014, p. 314). Once again, because of this necessity of having stable and regular sources, relatively good financial and social conditions seem to restrict the mobility of people who wish to legally establish themselves in the EU.195 In this sense, “the condition of stable and regular resources is not to be assessed on the basis of objective criteria” (Wiesbrock 2010, p. 270). In fact, when applying the ‘stable and regular resources’ requirement, Member States are allowed to “carry out a prognosis which, according to the wording of Article 5(1)(a), relates to an ‘evaluation’ of the resources by reference to ‘their nature and regularity’” (Thym 2016, p. 455). The evaluation of the Member States of these individuals’ resources is done by reference of their “nature and regularity, possibly taking into account the level of minimum wages and pensions” (Wiesbrock 2010, p. 270). In this context, we must agree with Chalmers, Davies and Monti when they affirm that asking TCNs “to accordance with (in the sense of must be defined by) the provisions of a Member State’s immigration law. For more details, see: Thym (2016, p. 441). Also, according to Article 3.2 of the Directive, there are some cases in which the TCN might even be residing legally in the EU, but is still not entitled to the protection of the Directive, namely: TCNs who reside in the EU in order to pursue studies or vocational training; TCNs who legally reside in the EU but on the basis of temporary protection; TCNs who legally reside in the EU on the basis of a subsidiary form of protection in accordance with international obligations, national legislation or the practice of the Member States; TCNs who are refugees or have applied for this status’ recognition; TCNs “who reside solely on temporary grounds such as au pair or seasonal worker, or as workers posted by a service provider for the purposes of cross-border provision of services, or as cross-border providers of services or in cases where their residence permit has been formally limited”; TCNs under diplomatic or consular protection. 194 As stated by ECJ case C-40/11, Iida v Germany, according to Boeles et al. (2014, p. 177). According to Article 8(2) of the Directive, the long-term resident’s residence permit shall be permanent and shall be issued by Member States. The permit shall be valid for at least five years and shall be automatically renewable on expiry. 195 As another evidence of the Directive’s strong economic and selective character, we can mention Article 3(2) (a)–(f), which determines that the Directive is not applied to TCNs who, among others, reside in a Member State in order to pursue studies or vocational training, or are authorized to reside in a Member State on the basis of temporary protection or refugee status.

5.2 European Union Law and the Free Movement of People

211

provide sufficient resources after they have already lawfully resided for five years in a society” menaces an individual’s civil liberty; moreover, the authors also argue that, when analyzing Article 5(2) of the Directive, which determines that “Member States may require third-country nationals to comply with integration conditions, in accordance with national law”, TCNs are also limited on their civil liberties (Chalmers et al. 2010, p. 513). This is because an individual’s level of integration196 is often verified through a test in which they have to show their knowledge on local culture, language and history. According to these authors, this way of verifying a person’s level of integration could be considered radical, because one cannot compare a test, which is usually a requirement for applying for a naturalization process, with a condition for being able to live within the territory of a specific State. It is also important to stress that many of the rights provided by the Directive may be limited by each of the Member States by their domestic law, which is the case of free movement rights of long-term residents, as provided in Articles 14, 15 and 21: Member States may examine their labour market and give preference to EU citizens. In addition, for a period of 12 months, Member States may deny long-term residents access to employment activities that are different from those for which the residence permit has been granted. The access to employed or self-employed activities on the part of students and longterm residents moving for other purposes, depends entirely on the discretion of the second Member State concerned. Moreover, additional general conditions for residence in a second Member State are contained in Article 15. Next to the required evidence of sufficient stable and regular resources for maintenance, and the possession of health insurance, long-term residents moving to a second Member State may be required to comply with integration measures, unless they have already complied with integration conditions in order to obtain long-term residence status in the first state. The attendance at language courses may always be demanded (Wiesbrock 2010, pp. 274–275).

In spite of that, and according to Eisele (2014, p. 344), the special status given to long-term residents “enhances the legal position and the protection of third-country nationals in the host Member State, and facilitates their integration into the host society”. The Directive appears as an integration strategy, as it regulates the rights of legally residing TCNs, which encompasses, among others, the prohibition of discrimination between EU citizens and TCN in the areas of education, access to employment,197 social security and recognition of professional qualifications (Pich 2007, p. 233). The legal position of TCNs is also enhanced in the sense that, once they hold a long-term residence permit, they “enjoy protection against expulsion from a Member State’s territory” (Eisele 2014, p. 314), which must be guaranteed by a Member State by providing effective legal redress.198 In this context, TCNs might only be expelled “if the person concerned constitutes an actual and sufficiently serious threat to public policy or public security” (Eisele 2014, p. 314), as indicated

196

In order to understand the integration requirements intended under the terms of the Directive, see: Carrera (2009, pp. 175–183). 197 As, for example, the right to form and join trade unions for the protection of his or her interest, as enshrined in the EU Charter of Fundamental Rights. See: Eisele (2014, p. 344). 198 According to preamble No. 16 of the Directive.

212

5 The Legal and Normative Framework on Migration in Germany and in the. . .

in Article 12 of Directive 2003/109.199 Besides the fact that the expulsion decision must not rely on an economic criteria, once the decision of expelling a TCN is taken, other points must be taken into consideration, such as: (i) the duration of residence of the person in a Member State’s territory; (ii) the age of the TCN in question; (iii) the consequences of the expulsion for the person especially in relation to his/her family members; and (iv) links with the country of residence or the absence of links with the country of origin.200

Council Directive 2009/50/EC of 25 May 2009 on the Conditions of Entry and Residence of Third-Country Nationals for the Purposes of Highly Qualified Employment The commonly called Blue Card Directive201 “establishes a fast-track procedure for the admission of highly qualified third-country workers, based on a common definition and common criteria” (Boeles et al. 2014, p. 158). The goal of this Directive is to “increase the competitiveness of the European economy by facilitating the entry of highly skilled workers” (Wiesbrock 2010, p. 284). In this sense, workers admitted under the terms of the Blue Card Directive have the right to a residence permit (the so-called Blue Card202) in order to work in a Member State. “This permit will endow on them and their families with a series of rights, including favourable conditions for family reunification, and the possibility to move for work to a second Member State” (Boeles et al. 2014, p. 158). After 18 (eighteen) months of legal residence in a Member State and owning a Blue Card, the TCN and his/her family members will be granted the right of free movement for the sake of highly qualified employment in any other Member State of the Union. The directive, however, does not provide the TCN a right to free admission: when taking the decision of issuing a Blue Card, the Member State must not only attend to the conditions of the Directive, but it may control the volume of admission of TCNs entering its territory, applying for example national quotas.203 Therefore, we can state that the Blue Card Directive has two purposes. It not only lays down “the conditions of entry and residence of third-

199

The parameters of interpretation of public policy and public security shall be the same as those used under the context of the Free Movement Directive (2004/38/EC). For more details, see: Wiesbrock (2010, p. 483). 200 Article 12(3) of the Long-Term Directive. 201 Council Directive 2009/50/EC of 25 May 2009 on the conditions of entry and residence of thirdcountry nationals for the purposes of highly qualified employment. OJ L 155, 18.6.2009, pp. 17–29. 202 The name “Blue Card“ was inspired by the US-American Green Card; the European card makes reference to the EU flag, which has a blue color. We must draw attention to the fact that the Blue Card does not provide as much as rights as the US American Green Card does. For more details and discussions on the Green Card and on legal immigration policies of the USA, see: Dobkin (2013). 203 As determined by Article 6 of the Blue Card Directive. The Member State shall also decide whether applications for a Blue Card are to be made by the TCN and/or by his/her employer, as provided by Article 10.

5.2 European Union Law and the Free Movement of People

213

country nationals who will take up highly qualified employment” for more than 3 months in a specific Member State, but it also “sets out the conditions under which third-country nationals who are in possession of a Blue Card and their family members may reside in a second Member State” (Hailbronner and Herzog-Schmidt 2016, p. 769). It is important to draw attention to the individuals the Blue Card Directive excludes from its scope, and that can basically might be divided into three big groups: The first group constitutes persons who are authorized to reside in a Member State for humanitarian reasons, or who have applied for a residence permit on such grounds. This group encompasses persons under temporary protection, beneficiaries of international protection within the meaning of the Asylum Qualification Directive 2011/95/EU (. . .) and beneficiaries of protection in accordance with national law or international obligations. The second group is made up of persons who fall or may fall under special provisions: researches, family members of EU citizens, long-term residents, persons entering a Member State in accordance with international agreements, seasonal workers, posted workers and persons who enjoy rights of free movement equivalent to those of EU citizens. Finally, the third group is made up of persons for whom their expulsion has been suspended for reasons of fact or law (Hailbronner and Herzog-Schmidt 2016, p. 778).

The general idea behind attracting high-skilled workers from third countries was to attend to the Lisbon Agenda, which aimed at reaching full employment within the European Union, as well as at avoiding EU’s population decline. Since there was not a common approach to attract high-skilled immigrants before the Blue Card Directive, these individuals used to depend on each of the Member States’ legal framework on migration in order to reside in each of the Member States. The countless number of rules and legal possibilities discouraged many immigrants (Wiesbrock 2010, pp. 284–285). Under the terms of the Blue Card Directive, a highly qualified employment means the employment of a third-country national who: – in the Member State concerned, is protected as an employee under national employment law and/or in accordance with national practice, irrespective of the legal relationship, for the purpose of exercising genuine and effective work for, or under the direction of, someone else, – is paid, and, – has the required adequate and specific competence, as proven by higher professional qualifications.204

Therefore, the TCN in question must not only be employed in accordance with a Member State’s labor law and be paid for the work which is carried out, but the TCN must also have acquired specific and adequate competence by means of a higher

204

Article 2 (b) of the Blue Card Directive. Also, in order to apply for the Blue Card, the TCN may either reside outside the territory of the Member State to which he/she wishes to be admitted or the TCN is already residing in that Member State as holder of a valid residence permit or national longstay visa (Article 10(2) of the Directive).

214

5 The Legal and Normative Framework on Migration in Germany and in the. . .

professional qualification. A higher professional qualification means, according Article 2 (g) of the Directive, any qualification attested by a higher education qualification or, by way of derogation, any qualification “attested by at least five years of professional experience of a level comparable to higher education qualifications and which is relevant in the profession or sector specified in the work contract or binding job offer”,205 i.e., if this is foreseen by national legislation (Wiesbrock 2010, p. 287). Therefore, after reading this definition, it is not possible to conclude that only a University degree could fulfil the conditions that define a higher professional qualification: also 5-years professional experience comparable to a higher education qualification could be considered for the sake of issuing a Blue Card. In this sense, a higher education qualification, according to the EU Blue Card Directive is (. . .) any diploma, certificate or other evidence of formal qualifications issued by a competent authority attesting the successful completion of a post-secondary higher education programme, namely a set of courses provided by an educational establishment recognised as a higher education institution by the State in which it is situated. For the purposes of this Directive, a higher education qualification shall be taken into account, on condition that the studies needed to acquire it lasted at least three years;206

To sum up, under the scope of the Directive, a highly qualified employment contains two important elements.207 At first, the Directive excludes self-employed persons, “referring explicitly to carrying out work in the capacity of an employee”; secondly, the employment position to be obtained must, in principle, require a higher educational qualification (. . .)”; this higher education qualification must include at least 3 years of study, “which may possibly, and by way of derogation, be substituted by relevant professional experience of at least five years” (Wiesbrock 2010, p. 562), reminding us that this exception to the rule depends on national law. Nevertheless, it is important to note that, outside of the scope of the Blue Card Directive, the definition of high-skilled immigration does not comprise a consensus. However, the general idea which is largely agreed upon is that this expression refers to workers “with specialized skills developed either through professional training or education” (Rottas and Givens 2015, p. 135). It is important to note that many developed countries select based on the skill of the immigrant—usually education— without requiring or even intending to place these selected immigrants in highskilled jobs after they immigrate. In developed countries, which is the case of most EU countries, high-skilled immigration is often higher represented than immigrants who do not have a high school diploma.208

205

Article 2 (g) of the Blue Card Directive. Article 2 (h) of the Blue Card Directive. 207 It is important to note that cross border workers are excluded from the scope of the Blue Card Directive, see: Hailbronner and Herzog-Schmidt (2016, p. 772). 208 According to Rottas and Givens (2015, p. 135), Germany is included in this category, receiving more high-skilled immigrants than people who do not even have a high school diploma. 206

5.2 European Union Law and the Free Movement of People

215

Notwithstanding the conditions related to a TCN’s high qualification, other formal criteria for admission have to be met so that the TCN can apply for the Blue Card. As determined by the Directive’s Article 5, the applicant has to present evidence that he/she meet the criteria: This evidence concerns a valid work contract or binding job offer for a highly qualified employment for at least one year. In the case of a regulated profession, a document attesting to the fulfillment of the specific conditions for this profession; and in case of an unregulated profession, documents attesting to the relevant higher professional qualifications in the occupation or sector (Boeles et al. 2014, p. 161).

Moreover, not only the profile of the potential employee has to be analyzed and scrutinized, but also the TCN in question shall not represent any threat to the Member State he/she wishes to work in. In this regard, not only a valid travel document must be presented, but also evidence on having a health insurance (or at least an evidence that the TCN has applied for such an insurance); one should also not forget that the Blue Card applicant “may not be considered to pose a threat to public policy, public safety or public health” (Boeles et al. 2014, p. 161). Once with the Blue Card in hands, the TCN is entitled “to enter, re-enter, and stay in the territory of the Member State that issued the EU Blue Card (Article 7(4) (a))” (Hailbronner and Herzog-Schmidt 2016, p. 793). Regarding the rights209 granted to highly skilled workers from third countries the Directive grants, after two years of legal employment “Member States may decide to treat such a worker as equal to a national with regard to access to highly qualified employment” (Boeles et al. 2014, p. 158). This equal treatment means “that the Blue Card holders no longer have to fulfill the requirements set out in Article 5”, already presented above. Nevertheless, Blue Card holders will still be limited to highly qualified employment, as defined above (Hailbronner and Herzog-Schmidt 2016, p. 806). Another point that should be mentioned and that links the Blue Card Directive with the Long Term Directive refers to Article 16 of the Blue Card Directive. The mentioned article provides derogations to the Long-Term Directive, aiming at, encouraging geographical and circular migration “by allowing Blue Card holders to accumulate periods of residence in different Member States in order to fulfill the main condition for obtaining the EC long-term residence status”, once Article 16 (1) provides derogations, affirming that the provisions of the Long Term Residents’ Directive 2003/109/EC apply where the Blue Card Directive does not provide special provisions. “Blue Card holders may be required to fulfill the general conditions of the Long Term Residents’ Directive 2003/109/EC, such as the requirement that applicants have stable and regular resources” (Hailbronner and Herzog-Schmidt 2016, p. 823) so that they can acquire long-term resident status. This possibility is seen as a positive one, as a long-term residence permit is supposed to provide more rights than the Blue Card does (as, for example, the possibility a TCN has of not

209

Limits to these rights are observed, for example, under Article 8(2) of the Blue Card Directive, which provides some priorities to national and EU workforce, as well as, for example, to TCNs owners of a long-term residence permit.

216

5 The Legal and Normative Framework on Migration in Germany and in the. . .

being necessarily exercising a high qualified employment). However, considering these supposed more rights granted by the Long-Term Directive, Article 16(6) provides that “Blue Card holders who acquire the status of a long-term resident can ‘transfer’ into the new status some of the rights granted under the Blue Card Directive that are more favourable than under the Long-Term Directive” (Hailbronner and Herzog-Schmidt 2016, p. 824).

Directive 2011/98/ΕC of the European Parliament and of the Council of 13 December 2011 on a Single Application Procedure for a Single Permit for Third-Country Nationals to Reside and Work in the Territory of a Member State and on a Common Set of Rights for Third-Country Workers Legally Residing in a Member State Before we discuss some points related to this Directive, we would like to reproduce Groenendijk’s understandings in relation to the EU’s legislation on the employment of third-country workers. The authors affirm that the Treaty of Amsterdam (Articles 78 and 79 TFEU) enabled three types of EU instruments with “legally binding rules on access to employment and rights of workers from third countries”; the first category he mentions refers to: the rules on access to employment and employment related rights in directives on admission of other categories of third-country nationals, such as the Family Reunification Directive (2003/86), the Long-Term Residents Directive (2003/109), the Students Directive (2004/ 114), the Reception Conditions Directive, originally 2003/9 now 2013/33, the Qualification Directive on the status of refugees and beneficiaries of subsidiary protection, originally 2004/84 now 2011/95 (Groenendijk 2015, p. 549).

The second category of EU instruments that provides employment and other rights for workers from third countries have their origin since 2007, when, according to the author, a series of ‘sectoral’ directives were adopted on admission of certain categories of TCN workers, such as the Blue Card Directive (2009/50), the Directive on admission for seasonal employment (2014/36) and the Directive on intra-corporate transferees (2014/66) (Groenendijk 2015, p. 549).

In the present work, among these three Directives cited by Groenendijk, we have opted for deepening the Blue Card Directive to the detriment of the other two ones, not only because the Blue Card Directive plays an important role in Germany, as explained in Sect. 5.1, but also because it contains a strong economic and market competition character. The fact is that the effect of these “sectoral” directives varies considerably in each of the EU Member States. The third and last type of EU instruments dedicated to workers from third countries refer to instruments that “do not mention employment explicitly, but implicitly open ways for third-country nationals to enter the Union and remain lawfully in a Member State for a short time and work or look for employment”. These instruments are: “the Visa Code (Regulation 810/2009), the EU Visa Regulation (539/2001) and the Regulation on

5.2 European Union Law and the Free Movement of People

217

local border traffic at external borders (1931/2006)” (Groenendijk 2015, p. 549). For the author, these cited instruments “may facilitate short term employment during the validity of the visa or the cross border traffic permit”, so that, in case a long-term job is offered, it relies on the employer and the worker to find a way of acquiring admission and, therefore, regularize the employment (Groenendijk 2015, p. 549). Under the context of the Directive 2011/98/EC (hereafter Single Permit Directive), Groenendijk does not believe that it belongs to either of these categories exposed above. This is because it “does not grant a right to be admitted for employment”, as it basically “provides procedural rules to be applied by Member States and on the rights acquired by those TCN who have been issued the single permit” (Groenendijk 2015, p. 549). In this sense, the Single Permit Directive allows TCN to follow “a single application procedure leading to a combined title encompassing both residence and work permits within a single administrative act”.210 Therefore, the Single Permit Directive contributes to simplifying and harmonizing both residence and working condition rules for TCN workers. Before the Directive’s entry into force, the rights of third-country nationals in this regard used to vary depending on the Member State in which they used to work and also depending on the TCN’s nationality.211 In this context, the Single Permit Directive enables TCNs “(a) a single application procedure, (b) a single permit, and (c) a set of rights for third-country national workers legally admitted to the territory of the Member States” (Boeles et al. 2014, p. 173). In regard to the latter, Sánchez affirms that the Single Permit Directive “constitutes a crucial element of the common migration policy and fulfills one of the objectives already declared in the Tampere European Council of October 1999, namely, to guarantee a fair treatment for third-country nationals legally residing in the Member States” (Sánchez 2016, p. 887). The TCN workers considered by the Single Permit Directive are not only those who have applied for, or have been admitted for reasons of work, “but also those who have been admitted for other reasons, who have a residence permit and are permitted to work (Article 3(1) (b))” (Boeles et al. 2014, p. 173).212 It is important to note that this Directive does not include the situation of seasonal workers. The work permit for seasonal workers from third countries in the EU are regulated by Directive 2014/36/EU of the European Parliament and of the Council of 26 February 2014 on the conditions of entry and stay of third-country nationals for the purpose of employment as seasonal workers. Important characteristics that differ one Directive

210

Directive 2011/98/EU of the European Parliament and of the Council of 13 December 2011 on a single application procedure for a single permit for third-country nationals to reside and work in the territory of a Member State and on a common set of rights for third-country workers legally residing in a Member State. OJ L 343, 23.12.2011, pp. 1–9, preamble No. (3). 211 As provided in preamble (19) of the Single Permit Directive. 212 It is important to bear in mind that Article 3(2) of the Directive contains a list of derogations, i.e., it states the group of people the Directive does not apply to, such as: EU citizens’ family members from third countries who make use of the right of free movement under the terms of Directive 2004/ 38/EC; TCNs who are applying for or are already beneficiaries of international or national protection; TCNs who are intra-corporate transferees, seasonal workers or au pairs, among others.

218

5 The Legal and Normative Framework on Migration in Germany and in the. . .

from the other is, for example, that the seasonal workers’ Directive refers to workers that perform ‘activity dependent on the passing of the seasons’, meaning “an activity that is tied to a certain time of the year by a recurring event or pattern of events linked to seasonal conditions during which required labour levels are significantly above those necessary for usually ongoing operations”, under the terms of Article 3 of Directive 2014/36. The duration of stay may or may not exceed the period of 90 days. A typical example of seasonal work would be ice cream shops that only operate during the warmest months of the year. Another relevant difference about the seasonal worker is that he/she must reside outside the territory of any Member State when he/she applies to be admitted for the sake of performing seasonal work in the Union (except for cases of extension of stay or renewal of the authorization for the purposes of seasonal work). In this regard, as exposed by Olsson, the Seasonal Workers Directive was conceived in order to promote circular migration, ensuring that low-skilled workers do not become permanent residents of the EU, and also aiming at the effective management of migration flows (Olsson 2016, pp. 12–13). In this sense, it is also important to mention Directive 2014/66/ΕC of the European Parliament and of the Council of 15 May 2014 on the conditions of entry and residence of third-country nationals in the framework of an intra corporate transfer. This Directive lays down, in the framework of an intra-corporate transfer, the conditions of entry to, and residence for more than 90 days in, the territory of any EU Member State, as well as the rights of third-country nationals and their family members. This means, in accordance with Article 2(1) of the Directive, that it should be applied to thirdcountry nationals who reside outside the territory of the Member States at the time of application and apply to be admitted or who have been admitted to the territory of a Member State under the terms of the Directive, in the framework of an intracorporate transfer as managers, specialists or trainee employees. This is a very specific, ‘sectoral’ Directive, that has been adopted on admission of certain categories of TCN workers (Groenendijk 2015, p. 549). Referring again to the Single Permit Directive, it is important to mention that it established “a general set of rights for all workers residing in the Member States”, “with regard to working conditions, freedom of association and affiliation, education and vocational training, recognition of diplomas and professional qualifications, social security, tax benefits and access to good and services” (Sánchez 2015, pp. 191–192). After all, as noted by Olsson (2016, p. 11) while referring to Peers, the Single Permit Directive not only regulates procedural aspects of admission for employment, but it also sets out rules when it comes to an equal treatment of TCNs. When it comes to the rights of entry and residence of a Single Permit holder, they are guaranteed in the territory of the issuing Member State (Sánchez 2016, p. 915). Also, Article 11 of the Directive provides the right of free movement within the limit of the territory of the issuing State, allowing only limitations contained in national law. It should be noted that, according to the European Convention on Human Rights, the right to internal free movement constitutes a human right (as an expression of the right to liberty of movement and freedom to choose one’s residence). To be certain, these rights could suffer some restrictions, if limited in the name of national security

5.2 European Union Law and the Free Movement of People

219

or public safety, “for the maintenance of ordre public, for the prevention of crime, for the protection of health or morals, or for the protection of the right and freedoms of others” (Sánchez 2016, p. 915). This is when we must agree with Boeles, den Heijer, Lodder and Wouters when they affirm that the rights offered by the Single Permit Directive to third-country nationals “are severely limited by declaring the conditions for entry for third-country nationals solely as a matter of discretion of the Member States” (Boeles et al. 2014, p. 173). This statement is confirmed by Article 1(2) of the Directive: “This Directive is without prejudice to the Member States’ powers concerning the admission of third-country nationals to their labour markets.”213 Therefore, the Single Permit “does not create material rights of entry for third-country national workers, but does create procedural rights, rights to equal treatment, and brings them under the scope of Union law” (Boeles et al. 2014, p. 173).214 It is important to note that the Single Permit Directive “regulates the issuing, amending or renewal of a single permit”, so that material requirements for issuing a permit are not regulated by it, but partially by the Blue Card Directive or by national law (Boeles et al. 2014, p. 174). In Germany, it is important to note that the single application procedure caused little need for transformation, once the Residence Act had already suffered some changes in 2004. With the implementation of the Single Permit Directive, (. . .) the immigration authorities are responsible for all matters relating to residence as well as taking up employment. Germany has not opted to exclude third-country nationals, who have been either authorized to work in the territory of a Member State for a period not exceeding six months, or who have been admitted to a Member State for the purpose of study, from the application of on-stop government (Schubert and Schmitt 2016, p. 59).

When it comes to the other goal of the Single-Permit Directive, namely, the migrant employees’ right to equal treatment, it has been included into German antidiscrimination laws, “especially employment laws and regulations concerning access to education, continuing education, employment agency, membership in trade unions, services and goods”; in fact, according to Schubert and Schmitt, the Single-Permit Directive did not cause significant changes in German’s legal framework for migration, “as the administrative procedure had already been simplified and German anti-discrimination laws had always covered migrant employees. The most significant change is that (. . .) third-country nationals now enjoy the same rights as German pensioners” (Schubert and Schmitt 2016, pp. 60–61).

Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on Common Standards and Procedures in Member States for Returning Illegally Staying Third-Country Nationals Following the structure of the present work, after considering the entry and stay of TCNs under EU law, we are finally approaching the termination of stay of a TCN. In 213 214

Article 1(2) of the Single Permit Directive. In this regard see also Sánchez (2016, p. 891).

220

5 The Legal and Normative Framework on Migration in Germany and in the. . .

this context, the so-called “Returns Directive”215 makes it possible for EU Member States to issue a return decision216 “to any third-country national staying illegally on their territory”.217 Once the return decision is issued, it “should provide for an appropriate period for voluntary departure of between seven and thirty days”.218 The intention behind the voluntary return is to make the return as consensual as possible (Chalmers et al. 2010, p. 510), avoiding compulsory (or, at least, violent and traumatic) measures against third-country nationals, which is the case of removal and entry ban, when the voluntary return does not occur within the period stipulated by the Member State.219 Article 3 (3) considers return220 when the TCN is sent “– whether in voluntary compliance with an obligation to return, or enforced – to” (i) the TCN’s country of origin, or (ii) to whichever country of transit in accordance with readmission agreements or other international arrangements in this regard, or (iii) to “another third country, to which the third-country national concerned voluntarily decides to return and in which he or she will be accepted”.221 In this context, “‘removal’ means the enforcement of the obligation to return, namely the physical transportation out of the Member State”.222 The Directive sets out common standards and procedures for returning illegally staying third-country nationals. This should be done “in accordance with fundamental rights as general principles of Community law, as well as international law, including refugee protection and human rights obligations” (Boeles et al. 2014, p. 386). An illegal TCN, in this case, is considered any TCN whose presence in the territory of a Member State “does not fulfil, or no longer fulfils the conditions of entry as set out in Article 5 of the Schengen Borders Code223 or other conditions for entry, stay or residence in that Member State”.224 As mentioned by Lutz, “the reason for the illegality of the stay can be manifold: expiry of a visa, expiry or withdrawal of

The Directive is a relatively concise one and consists of 23 Articles structured in five chapters. According to Article 3(4) of the Returns Directive, the return decision is an administrative or judicial decision or act that states or declares the stay of a TCN as illegal, consequently imposing or stating an obligation to return. 217 According to Article 6(1) of the Returns Directive. 218 According to Article 7(1) of the Returns Directive. 219 Or in cases where there is a risk of absconding, or if an application for a legal stay has been dismissed as manifestly unfounded or fraudulent, or if the person concerned poses a risk to public policy, public security or national security, as provided in Article 7(4) of the Returns Directive. 220 Noting that the term expulsion is not used in the Returns Directive. 221 Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals. OJ L 348, 24.12.2008, pp. 98–10, art. 3(3). 222 Article 3(5) of the Returns Directive. 223 According to the newest updates of the Schengen Borders Code, the conditions for entry are now provided in Article 6 of the Code. 224 Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals. OJ L 348, 24.12.2008, pp. 98–10, Article 3(2). 215 216

5.2 European Union Law and the Free Movement of People

221

a residence permit, negative final decision on an asylum application, illegal entry, etc.” (Lutz 2016, pp. 671–672), including cases in which a residence permit is pending but has not yet been decided upon. The cases the Directive applies to do not relate to crimes committed by TCNs within the territory of the Member State. It strictly applies to a possible illegal migratory status a TCN might have because of an illegal stay within the territory of a Member State.225 However, there are two possibilities in which Member States may decide not to apply the Directive to TCN when (i) these are subject to a refusal of entry in accordance with Article 13 of the Schengen Borders Code, or (. . .) are apprehended or intercepted by the competent authorities in connection with the irregular crossing by land, sea or air of the external border of a Member State and who have not subsequently obtained an authorisation or a right to stay in that Member State226

or (ii) when TCNs “are subject to return as a criminal law sanction or as a consequence of a criminal law sanction, according to national law, or who are the subject of extradition procedures”.227 This means it is possible that a TCN receives a return decision because he/she finds himself/herself illegal in the territory of a Member State, but the Member State in question might not decide to apply the Directive because the TCN in question might also be subject to return because of a crime he or she had committed. In this case, the Member State would have to follow other proceedings rather than those laid down by the Directive (depending on the criminal law sanctions in force in the Member State or on a possible extradition case). In this context, we must state that the Returns Directive does not affect, in principle, the freedom of Member States to make criminal laws (Boeles et al. 2014, p. 389228). Furthermore, it is not that the set of instruments contained in the Directive were unknown by the Member States, but the commands brought by the Directive were systemized in a new way, so that EU Member States had to “make quite rigorous adaptations to their existing legislation” (Boeles et al. 2014, p. 386).229 Before the 225

Although Article 6(1) of the Returns Directive only mentions an illegal stay within the territory of a Member State, we also believe an illegal entry also justifies a returning decision, as it can be interpreted when reading Article 3(2) of the Returns Directive. 226 Article 2(2) of the Returns Directive. 227 Article 2(2) of the Returns Directive. 228 According to these authors, it has been debated whether internal criminal legislation of the Member States could not be used to penalize the illegal staying of a TCN in the territory of a Member State (in the sense that this possibility could debilitate the Returns Directive). This discussion only refers to penalties such as imprisonment and other forms of deprivation of liberty, as the Directive “does not preclude penalising illegal stays by third-country nationals by means of a fine that may be replaced by an expulsion order”. For more details on this discussion, see: Boeles et al. (2014), pp. 389–390. 229 Including the possibility of detention, only possible “in order to prepare and/or carry out the removal process, if no other sufficient but less coercive measures can be applied in the concrete case, in particular, when there is a risk of absconding, or when the third-country national concerned avoids or hampers the preparation of return or the removal process.”, see: Boeles et al. (2014, p. 394).

222

5 The Legal and Normative Framework on Migration in Germany and in the. . .

Directive, there was no obligation on the Member States to issue a return decision, “as previously they enjoyed a discretion over whether to allow return” (Chalmers et al. 2010, p. 509). Boeles, den Heijer, Lodder and Wouters draw attention to the central function of the ‘return decision’ under the terms of the Directive, “without which no detention or entry ban may be issued, and the obligatory character of the entry ban can have a disciplining effect” (Boeles et al. 2014, p. 386). It is also important to note that the TCN who receives the return command is obliged to leave, not specifically the territory of a Member State, but the entire territory of the EU. The same logic applies to the entry ban, prohibiting entry into, and residing within the territory of all the Member States.230 Exceptions to the general returning decision are observed when Member States understand that they could grant the TCN in question an autonomous residence permit, or other authorization that allows a right to stay within their territory. These grants should be offered by the Member State because of compassionate, humanitarian or other reasons, as provided by Article 6(4) of the Directive. “However, there is no requirement to be compassionate” (Chalmers et al. 2010, p. 509), which leaves room for a wide discretion of the Member States. It is important to note that Article 6(4) “cannot be interpreted as implying an obligation on Member States to regularize (grant a permit to) returnees, even in situations in which it becomes clear that there is no more reasonable prospect of removal” (Lutz 2016, p. 690).231 A last point to be mentioned regarding illegal TCNs, and, more specifically, illegal workers from third countries, refers to the sanctions and standards to be applied in the Member States against employers who infringe the prohibition of employment of illegally staying third-country nationals. These common standards and sanctions to employers are provided by Directive 2009/52/EC of the European Parliament and of the Council of 18 June 2009 (OJ L 168, 30.6.2009, pp. 24–32). As this is a Directive devoted to employers, we would like to make some punctual comments on it, as it relates to illegally staying TCNs. Considering that one of the generating factors of illegal immigration is the possibility of finding employment without having the necessary legal migration requirements, the Directive 2009/52/ EC (also known as the Employer Sanctions Directive) binds immigration law to labor law. The Employer Sanctions Directive prohibits the employment of thirdcountry nationals that are illegally staying in any of the EU Member States for the sake of fighting illegal immigration. In order to reach this goal, the Directive “lays down minimum common standards on sanctions and measures to be applied in the Member States against employers who infringe that prohibition” (OJ L 168, 30.6.2009, pp. 24–32, Article 1). However, we agree with Inghammar when he affirms that the aim of the Directive is not to prevent the exploitation of TCN or to minimize their risks at work. The real intention behind the Directive is “to reduce the attraction for migrants to illegally enter the European Union by further prohibiting the possibilities to work without valid permission and so increase the possibilities of

230 231

See preamble No. 14 of the Returns Directive. This decision has been taken by the ECJ in case C-146/14 Mahdi.

5.3 Preliminary Conclusions

223

legal sanctions against employers infringing the legislation” (Inghammar 2010, p. 200). Nevertheless, we must admit that the Directive sets out some controls to employers, obliging them to require TCNs to present a valid residence permit, or any other authorization that allows the stay of TCNs. Furthermore, a copy or record of the residence permit, or equivalent document, must be kept by the employer at least for the duration of the TCN’s employment, and competent authorities must be notified when a TCN starts his/her employment.232 The Directive makes it easier for Member States to maintain the control over the number of undocumented—or illegal—TCNs that might enter EU States in search of work.

5.3

Preliminary Conclusions

This chapter has been structured drawing attention to the level of tolerance of both Germany and the European Union towards third-country nationals and EU citizens. While Sect. 5.1 has been dedicated to the rights of entry and stay of third country nationals in Germany, Sects. 5.2.1 and 5.2.2 help us understand the treatment given by the EU to its citizens, and to third-country nationals living in the EU’s territory. During the drafting of this chapter, we have often asked ourselves whether we could speak of a true freedom of movement of TCNs from a German law perspective. Our thoughts can be based in many of the provisions of the German Residence Act. If we consider Section 9, we can observe from the basic requirements of the permanent settlement permit that some of them demand too strong a level of integration. For example, the necessity of possessing a basic knowledge of the legal and social system and the way of life within the country. We believe these requirements are more equivalent to a naturalization process rather than to the issuance of a settlement permit, even if it is a permanent one, especially if this knowledge has to be proved by means of a test. Indeed, several of the strict requirements for the issuance of a residence title under German law do not match in terms of flexibility with some of the requirements for the acquisition of German nationality through naturalization. Even though these naturalization requirements, and even the subject of nationality, have not been analyzed under the scope of this work, it is interesting to observe that third-country nationals could give up on the application of a permanent settlement permit, because, in some cases, they are already in compliance with naturalization requirements.233 Moreover, the level of discretion of the German authorities when deciding for the entry and/or stay of a foreigner might be, in some cases, relatively high. As an example, we cite Section 17a of the Residence Act that recognizes foreign

232

Article 4 of Directive 2009/52/EC. Naturalization requirements can be consulted, for example, via http://www.bamf.de/DE/ Willkommen/Einbuergerung/InDeutschland/indeutschland-node.html.

233

224

5 The Legal and Normative Framework on Migration in Germany and in the. . .

professional qualifications, but that determines that the evaluation on equivalence depends on the rules for recognition of profession, which vary from one case to the other. Also, not only Section 16 (5), but all provisions of the Residence Act that restrict the granting of a residence title to the exercise of a profession that is commensurate to a foreigner’s qualification confirm a grade of discretion of the German immigration officer. Neither the German Residence Act nor its General Administrative Regulation defines what “appropriate” or “angemessen” means when relating the employment the foreigner has to his/her qualification acquired. By reading No. 18a.1.1.2 of the Administrative Regulation, we identify that an employment is appropriate if it usually requires an academic degree and the knowledge acquired through higher education is at least partly or indirectly needed. However, these requirements are too vague, since the expressions “usually” and “at least partly or indirectly” open the possibilities of interpretation of the immigration officers depending on the profession practiced. Also, German law has proven to have a selective character. For instance, in Section 18a, as long as the foreigner is qualified, even if the deportation is imminent, the foreigner might pursue an economic activity within German territory. These few examples denote that German law finds itself between a Zuwanderung and an Einwanderung policy, granting several rights to foreigners, but at the same time focusing on the control and restriction of the influx of people at its borders, not forgetting the economic advantages that some of these people might bring to the country. The approach of the EU is quite similar. Not as much towards EU citizens, since the Union restricts their free movement based on very specific factors that involves a Member State’s sovereignty, such as public policy, public security, public health, abuse of rights or fraud, but especially towards third-country nationals. For the record, when it comes to differences concerning MERCOSUL and the European Union, we should take some notes on MERCOSUL’s Residence Agreement and the European Union’s free movement regime. In the EU, for example, there is an obligation to work or to prove sufficient resources in order to be able to move to another member State for longer than 3 months. By contrast, as we could learn from Arcarazo,234 “citizens in South America may reside for up to two years by simply providing an identification document and proof of a clean criminal record for the previous five years” (Arcarazo 2015b, p. 217). Whereas under the MERCOSUL Agreement it is the immigrant who has the burden to prove that he/she does not represent a threat to public safety or security in order to stay within a MERCOSUL’s country, in Europe the responsibility relies on the national authorities that should demonstrate that a person endangers public security or public health. Apart from EU legal resources for third-country nationals that have created a fragmented set of rights made up of association agreements and moving away EU

234

We must note that Arcarazo’s work is of great importance for these studies, once he is one of the only academics to refer to these differences between the EU’s and MERCOSUL’s migration law frameworks.

References

225

secondary legislation (Eisele 2014, p. 276), the EU’s rules of entry and stay for thirdcountry nationals constitute an exception to their general restriction of movements within the territory of the Union, understood as a non-self-evident right to move. On the field of movement of third-country national workers within the EU, these are not supposed to replace EU workers, but to fill shortages—that is, to perform work that EU workers cannot do, especially if this is a highly qualified work that needs to be done in order to improve the EU’s economy and technological impact. The attraction of an intellectual elite is, under this scope, necessary (as an example the Blue Card Directive). The division between unwelcome non-EU nationals and desirable non-EU nationals235 seems to be a constant concern within the EU external migration policy. This division becomes evident, for instance, when we compare the Returns Directive, in which there is the criminalization of the immigrant who can be detained up to 18 months “for doing no more than breaching a condition of entry and posing a risk of absconding” (Chalmers et al. 2010, p. 511), with the Long-Term Directive, according to which the third-country national is almost treated under the same conditions as an EU citizen due to, among other requisites, his/her level of integration. Therefore, we believe that the EU rights and policies on migration, especially referring to migration of third-country nationals, proves to be a regular combination of liberal and restrictive aspects.

References Arcarazo DA (2015a) Civic citizenship reintroduced? The long-term residence directive as a postnational form of membership. Eur Law J 21(2):200–219 Arcarazo DA (2015b) Toward a South American citizenship? The development of a new postnational form of membership in the region. J Int Aff 68(2):213–221 Bauböck R (2014) The three levels of citizenship within the European Union. German Law J 15 (5):751–764 Besters M, Macenaite M (2013) Securing the EU public order: between an economic and political Europe. German Law J 14(10):2075–2090 Bigo D (2005) Frontier controls in the European Union: who is in control? In: Bigo D, Guild E (eds) Controlling frontiers: free movement into and within Europe. Ashgate Publishing Limited, Hants, pp 49–99 Bigo D, Guild E (2005) Policing at a distance: Schengen Visa Policies. In: Bigo D, Guild E (eds) Controlling frontiers: free movement into and within Europe. Ashgate Publishing Limited, Hants, pp 233–263 Boeles P, den Heijer M, Lodder G, Wouters K (2014) European migration law. Intersentia, Cambridge Boswell C, Geddes A (2011) Migration and mobility in the European Union. Palgrave Macmillan, Basingstoke Brinkmann G (2015) Equal treatments on the ground of nationality for EU migrant workers. Eur J Migrat Law 17(2/3):239–257 Camargo S (2010) O Processo de Integração Regional: fronteiras abertas para os trabalhadores do Mercosul. Revista Contexto Internacional 32(2):489–517

235

Expressions used by Chalmers et al. (2010, pp. 509–525).

226

5 The Legal and Normative Framework on Migration in Germany and in the. . .

Carrera S (2009) In search of the perfect citizen? The intersection between integration, immigration and nationality in the EU. Martinus Nijhoff Publishers, Leiden Chalmers D, Davies G, Monti G (2010) European Union law. Cambridge University Press, New York Cholewinski R, Taran P (2010) Migration, governance and human rights: contemporary dilemmas in the era of globalization. Refug Surv Q 28(4):1–33 Corthaut T (2012) EU Ordre Public. Kluwer Law International, Alphen aan den Rijn Costello C (2011) Citizenship of the union: above abuse? In: De la Feria R, Vogenauer S (eds) Prohibition of abuse of law – a new general principle of EU law? Hart Publishing, Oxford, pp 321–353 Cunha A (2017) A new border for Portuguese workers: EEC accession and freedom of movement. In: Calandri E, Paoli S, Varsori A (eds) Peoples and borders – seventy years of migration in Europe, from Europe, to Europe [1945–2015]. Nomos, Baden-Baden, pp 237–254 Curtin D, Manucharyan T (2015) Legal acts and hierarchy of norms in EU law. In: Arnull A, Chalmers D (eds) The Oxford handbook of European Union law. Oxford University Press, Oxford, pp 103–125 de Campos JM, de Campos JLM (2010) Manual de Direito Europeu. Wolters Kluwer Portugal/ Coimbra Editora, Coimbra Dobkin DS (2013) Behind the green card: how immigration policy is killing the American dream. Algora Publishing, New York Dolinger J (1986) Ordem pública mundial: ordem pública verdadeiramente internacional no direito internacional privado. Revista de Informação Legislativa 23(90):205–232 Dolinger J (2012) Private international law in Brazil. Kluwer Law International, Alphen aan den Rijn Dougan M (2011) Some comments on the idea of a general principle of union law prohibiting abuses of law in the field of free movement for union citizens. In: De la Feria R, Vogenauer S (eds) Prohibition of abuse of law – a new general principle of EU law? Hart Publishing, Oxford, pp 355–362 Eichenhofer J, Hörich C (2018) Vom Zuwanderungs- zum Einwanderungsgesetz? Vorschlag einer Dogmatik für ein neues Einwanderungsrecht. Beichel-Benedetti S, Janda C (eds) Hohenheimer Horizonte – Festschrift für Klaus Barwig, pp 428–441 Eisele K (2014) The external dimension of the EU’s migration policy. Different legal positions of third-country nationals in the EU: a comparative perspective. Brill Nijhoff, Leiden European Union (2012) Consolidated versions of the Treaty on European Union and the Treaty on the Functioning of the European Union – Consolidated version of the Treaty on the Functioning of the European Union – Protocols – Annexes – Declarations annexed to the Final Act of the Intergovernmental Conference which adopted the Treaty of Lisbon, signed on 13 December 2007 – Tables of equivalences. Official Journal C 326, 26/10/2012, p. 1–390, available via http://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri¼CELEX:12012E/TXT&from¼DE Eurostat (2017a) Residence permits for non-EU citizens. New high in first residence permits issued in the EU Member States in 2016. Main beneficiaries from Ukraine, Syria and the United States. Eurostat News Release No. 174. Available via http://ec.europa.eu/eurostat/documents/2995521/ 8456381/3-16112017-BP-EN.pdf/e690a572-02d2-4530-a416-ab84a7fcbf22 Fernandes CV, Silva JCJ (2013) Trânsito de trabalhadores e migrações: um estudo comparativo entre Mercosul e União Europeia. In: Gadelha RMAF (ed) Mercosul a Unasul – avanços do processo de integração. EDUC, São Paulo, pp 359–383 Germany. Federal Office for Migration and Refugees (2018) Migration, Integration, Asylum. Political Developments in Germany 2017. Annual Policy Report by the German National Contact Point for the European Migration Network (EMN) Ghodoosi F (2016) The concept of public policy in law: revisiting the role of the public policy Doctrine. Nebraska Law Rev 94(685):685–736 Giustiniani FZ (2015) Expulsion and the Fundamental Right of Irregular Migrants: Critical Notes in the margins of the Work of the International Law Commission Work of the “Expulsion of

References

227

Aliens”. In: Goodwin-Gill GS, Weckel P (eds) Protection des migrants et des réfugiés au XXIe siècle – aspects de droit international / Migration and Refugee Protection in the 21st Century – International Legal Aspects. Academie de Droit international de la Haye / The Hague Academy of International Law. Martinus Nijhoff Publishers, Leiden/Boston, pp 445–484 Groenendijk K (2015) Equal treatment of workers from third countries: the added value of the Single Permit Directive. ERA Forum J Acad Eur Law 16(4):547–561 Groß T (2014) Das Ausländerrecht zwischen obrigkeitsstaatlicher Tradition und menschenrechtlicher Herausforderung. Archiv des Öffentlichen Rechts 139(3):420–445 Guild E (2013) EU immigration and the new EU treaty framework. In: Juss SS (ed) The Ashgate research companion to migration law, theory and policy. Ashgate Publishing, Surrey, pp 43–59 Guild E, Peers S, Tomkin J (2014) The EU citizenship directive: a commentary. Oxford University Press, Oxford Hailbronner K (2006) The EU Directive on free movement and access to social benefits. CESifo DICE Report 4(4):8–13 Hailbronner K (2007) Free movement of EU nationals and union citizenship. In: Ryszard C, Perruchoud R, MacDonald E (eds) International migration law: developing paradigms and key challenges. T.M.C. Asser Press, The Hague, pp 313–328 Hailbronner K (2017) Asyl- und Ausländerrecht. W. Kohlhammer, Stuttgart Hailbronner K, Herzog-Schmidt J (2016) Council Directive 2009/50/EC of 25 May 2009 on the conditions of entry and residence of third-country nationals for the purposes of highly qualified employment. In: Hailbronner K, Thym D (eds) EU immigration and asylum law: a commentary. C.H. Beck/Hart/Nomos, München, pp 764–835 Hailbronner K, Thym D (2016) Legal framework for EU Asylum Policy. In: Hailbronner K, Thym D (eds) EU immigration and asylum law: a commentary. C. H. Beck/Hart/Nomos, München, pp 1023–1604 Hampshire J (2016a) European migration governance since the Lisbon treaty: introduction to the special issue. J Ethn Migr Stud 42(4):537–553 Henry G, Pastore F (2014) The governance of migration, mobility and asylum in the EU: a contentious laboratory. In: Tocci N (ed) Imagining Europe: towards a more united and effective EU. Edizioni Nuova Cultura, Rome, pp 163–198 Huber B, Eichenhofer J, Endres de Oliveira P (2017) Aufenthaltsrecht. C. H. Beck, München Inghammar A (2010) The employment contract revisited. Undocumented migrant workers and the intersection between international standards, immigration policy and employment law. Eur J Migr Law 12:193–214 Kaczorowska A (2013) European Union law. Routledge, London Kahanec M, Zimmermann KF (2010) Migration in an enlarged EU: a challenging solution? In: Keereman F, Szekely I (eds) Five years of enlarged EU – a positive sum game. Springer, Heidelberg, pp 63–94 Kochenov D, van den Brink M (2015) Pretending there is no union: non-derivative quasi-citizenship rights of third-country nationals in the EU. In: Thym D, Zoeteweij-Turhan M (eds) Rights of third-country nationals under EU association agreement. Brill Nijhoff, Leiden/Boston, pp 65–100 Kostakopoulou T (1998) European citizenship and immigration after Amsterdam: openings, silences, paradoxes. J Ethn Migr Stud 24(4):639–656 Longo M (2013) Right of way? Defining freedom of movement within democratic societies. In: Guild E, Niessen J (eds) Democratic citizenship and the free movement of people. Martinus Nijhoff Publishers, Leiden, pp 31–56 Lutz F (2016) Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals. Articles 1-11, 14 and 18. In: Hailbronner K, Thym D (eds) EU immigration and asylum law: a commentary. C. H. Beck/Hart/Nomos, München, pp 658–763 Marx R (2015) Aufenthalts-, Asyl-, und Flüchtlingsrecht. Nomos, Baden-Baden

228

5 The Legal and Normative Framework on Migration in Germany and in the. . .

Modolo V (2015) O MERCOSUL Importa. A Política Regional de Mobilidade Territorial. Contexto Internacional (PUC) 37(2):571–595. Available via http://www.scielo.br/scielo.php? script¼sci_arttext&pid¼S0102-85292015000200571&lng¼en&nrm¼iso Moses JW (2011) Migration in Europe. In: Tiersky R, Jones E (eds) Europe today: a twenty-first century introduction. Rowman & Littlefield Publishers, New York, pp 371–397 Neal AC (2013) Freedom of movement for employers and employees in the European Union: some observations from the perspective of a high-wage economy. Eur Labour Law J 4(1):33–71 Neundorf K (2018) Anerkennung ausländischer Bildungs- und Berufsabschlüsse. In: v Harbou F, Weizsäcker E (eds) Einwanderungsrecht – Das Recht der Arbeits- und Bildungsmigration. C. H. Beck, München, pp 69–98 Niessen J (2000) The Amsterdam treaty and NGO responses. Eur J Migr Law 2(2):203–214 Olsson PH (2016) Introduction to the Directives. In: Blanpain R, Hendrickx F (eds) National effects of the implementation of EU Directives on labour migration from third countries. Kluwer Law International BV, Alphen aan den Rijn, pp 9–34 Outhwaite W (2018) Migration crisis and “Brexit”. In: Menjívar C, Ruiz M, Ness I (eds) The Oxford handbook of migration crises. https://doi.org/10.1093/oxfordhb/9780190856908.013.7 Pagenstecher C (1996) Die ‘Illusion’ der Rückkehr. Zur Mentalitätsgeschichte von ‘Gastarbeit’ und Einwanderung. Soziale Welt 47(2):149–179 Peers S (2015) EU migration law and the EU/Turkey association agreement. In: Thym D, Zoeteweij-Turhan M (eds) Rights of third-country nationals under EU association agreement. Brill Nijhoff, Leiden, pp 202–222 Perruchoud R (2012) State sovereignty and freedom of movement. In: Opeskin B, Perruchoud R, Redpath-Cross J (eds) Foundations of international migration law. Cambridge University Press, Cambridge, pp 123–151 Pich PL (2007) La Política de Integración de la Unión Europea. Migraciones 22:221–256 Ponert K (2018) Migration zum Zweck der Erwerbstätigkeit. In: v Harbou F, Weizsäcker E (eds) Einwanderungsrecht – Das Recht der Arbeits- und Bildungsmigration. C. H. Beck, München, pp 11–46 Ramos AC (2018) Curso de Direito Internacional Privado. Saraiva Educação, São Paulo Recchi E (2015) Mobile Europe – the theory and practice of free movement in the EU. Palgrave Macmillan, Basingstoke Ristea O-E (2011) Free movement of EU citizens: limitations on grounds of public policy, public security and public health. Chall Knowl Soc 1(1):724–736 Rodríguez AA (2000) La nueva ley española de extranjería ¿ruptura e incumplimiento de Tampere? ¿Innovación o seguimiento del modelo italiano? Migraciones. Revista del Instituto Universitario de Estudios sobre Migraciones 7:89–135 Rogers N, Scanell R, Walsh J (2012) The free movement of persons in the enlarged European Union. Sweet & Maxwell/Thompson Reuters, London Rotaeche CG, Llorens FB (1999) Comments on the Donatella Calfa Case (C-348/96 of 19 January 1999). Eur J Migr Law 1:357–364 Rottas A, Givens T (2015) High-skilled migration. A new way forward for Europe, the United States, and the World. In: Arcarazo DA, Wiesbrock A (eds) Global migration. Old assumptions, New dynamics, Vol 3. Praeger, Santa Barbara, pp 133–151 Sánchez SI (2015) Migration agreements between the European Union and third states. In: Goodwin-Gill GS, Weckel P (eds) Protection des migrants et des réfugiés au XXIe siècle – Aspects de droit international/Migration and Refugee Protection in the 21st Century – International Legal Aspects. Academie de Droit international de la Haye/The Hague Academy of International Law. Martinus Nijhoff Publishers, Leiden/Boston, pp 167–194 Sánchez SI (2016) Directive 2011/98/EU of the European Parliament and of the Council of 13 December 2011 on a single application procedure for a single permit for third-country nationals to reside and work in the territory of a Member State and on a common set of rights for third-country workers legally residing in a Member State. In: Hailbronner K, Thym D (eds)

References

229

EU immigration and asylum law: a commentary. C. H. Beck/Hart/Nomos, München, pp 880–927 Schubert C, Schmitt L (2016) The German regulations on labour migrations and the impact of the EU directives on labour migration thereon. In: Blanpain R, Hendrickx F (eds) National effects of the implementation of EU directives on labour migration from third countries. Kluwer Law International BV, Alphen aan den Rijn, pp 35–76 Sola A (2018) The 2015 refugee crisis in Germany: concerns about immigration and populism. SOEP – Papers on Multidisciplinary Panel Data Research, No. 966, Deutsches Institut für Wirtschaftsforschung (DIW), Berlin Spaventa E (2011) Comments on abuse of law and the free movement of workers. In: De la Feria R, Vogenauer S (eds) Prohibition of abuse of law – a new general principle of EU law? Hart Publishing, Oxford, pp 315–320 Spaventa E (2015) The free movement of workers in the twenty-first century. In: Arnull A, Chalmers D (eds) The Oxford handbook of European Union law. Oxford University Press, Oxford, pp 457–476 Spaventa E (2017) Earned citizenship – understanding Union citizenship through its scope. In: Kochenov D (ed) EU citizenship and federalism – the role of rights. Cambridge University Press, Cambridge, pp 204–225 Szabados T (2017) National Courts in the frontline: abuse of rights under the citizens’ rights directive. Utrecht J Int Eur Law 33(85):84–102 Thym D (2015) Constitutional foundations of the judgements on the EEC-Turkey association agreement. In: Thym D, Zoeteweij-Turhan M (eds) Rights of third-country nationals under EU association agreement. Brill Nijhoff, Leiden, pp 13–38 Thym D (2016) Council Directive 2003/109/EC of 25 November 2003 concerning the status of third-country nationals who are long-term residents. In: Hailbronner K, Thym D (eds) EU immigration and asylum law: a commentary. C. H. Beck/Hart/Nomos, München, pp 427–519 v Harbou F, Weizsäcker E (2018) Einleitung. In: v Harbou F, Weizsäcker E (eds) Einwanderungsrecht – Das Recht der Arbeits- und Bildungsmigration. C. H. Beck, München, pp 1–9 van Calster G (2016) European private international law. Hart Publishing, Oxford Weber H (2015) Could immigration prevent population decline? The demographic prospects of Germany revisited. Comp Popul Stud 40(2):165–190 Weizsäcker E (2018) Migration zum Zweck des Studiums und der Berufsausbildung. In: v Harbou F, Weizsäcker E (eds) Einwanderungsrecht – Das Recht der Arbeits- und Bildungsmigration. C. H. Beck, München, pp 47–56 White RCA (2004) Workers, establishment, and services in the European Union. Oxford University Press, Oxford Wiesbrock A (2010) Legal migration to the European Union. Martinus Nijhoff Publishers, Leiden Ziegler KS (2011) ‘Abuse of Law’ in the context of the free movement of workers. In: De la Feria R, Vogenauer S (eds) Prohibition of abuse of law – a new general principle of EU law? Hart Publishing, Oxford, pp 295–314 Zielonka J (2008) Europe as a global actor: empire by example? Int Aff 84(3):471–484

Chapter 6

Conclusions and Recommendations

This work presented some research questions that could be totally or partially answered after the development of each of its chapters. Our intention with the present work was to (1) find an adequate legal nature for migration law, considering its multiple characteristics and the legal orders approach by this work; (2) identify the effectiveness of the new Brazilian Migration Law in terms of freedom of movement, considering immigrants’ facilities to enter and stay in Brazil; (3) compare both the Brazilian and German legal framework on migration in order to analyze which is the one to offer greater protection on the freedom of movement; and (4) identify if it is possible to refer to a common legal framework on migration for MERCOSUL Member States. A disclaimer—or self-criticism—to be noted are the difficulties faced when studying migration law, without having a social sciences background. Although we have made use of some social sciences literature, the study of human mobility, from a legal perspective, depends on the study of human behavior as a whole, especially when it comes to questions as the reasons why movers take the decision to dislocate from one corner of the world to another (in the case of the present research, it is even more relevant, as we are not dealing with forced migration cases). Migration law does not exist within a vacuum. For this reason we tried, during our research, to integrate aspects from social sciences and economic studies, in order to contextualize arguments, and to humanize legal considerations on migration.

6.1

Transnational Law of Human Mobility

In the second chapter we concluded that conceiving Migration Law as an object of study of Private International Law is not an unfounded or outdated idea. Firstly, because Migration Law relates to the rights of people, who find themselves in a foreign country, which is responsible for determining the rights and duties of migrants in its territory. Secondly, aspects such as nationality, place of death, © Springer Nature Switzerland AG 2020 E. Lana de Freitas Castro, Transnational Law of Human Mobility, https://doi.org/10.1007/978-3-030-46608-4_6

231

232

6 Conclusions and Recommendations

country of habitual residence, or any other connecting factor existent under Private International Law, are key elements in determining a person’s right under a specific jurisdiction. Moreover, some of the consecrated values of Private International Law are related to the rights a person should have, when he/she is not in the country of his/her origin. These values were developed from the influence of the international protection of human rights and are: (i) respect to equality between people; (ii) access to justice; and (iii) tolerance to diversity. We could even go beyond Private International Law, reaching Transnational Law as a field of law, which also relates to Migration Law, because, just as Private International Law, Transnational Law deals with social facts that escape from the boundaries of the States. Considering that public and private international law do not fit into a traditional division, Transnational Law appears as a path for rethinking Migration Law as an independent field of law, which considers both private and public aspects of an individual who is living under the rules of a State, which is not the one of his/her origin. We have already affirmed in Chap. 2 that Migration Law consists of a melting pot, classified either as Private International Law, Public International Law, Administrative Law, Refugee Law, Supranational Law, or as many as other possible classifications, depending on the case law in which a migrant is inserted. This is why we believe that it is possible to give Migration Law a specific legal nature which could be named as the Transnational Law of Human Mobility, where human beings are the main characters, and are entitled to all legal protection needed while living in a foreign territory of a State. Therefore, the right to establish community with all does not meet the intentions and necessities of the States, which “protect” their territory and economy by imposing restrictions to the entry and settlement of non-nationals into/within their territories.

6.2

Two Historical Backgrounds on Migration That Lead to Two Different Legal Approaches

Chapter 3 of the present work is essential for us to understand both Brazil’s and Germany’s migration tradition, which naturally reflects on both countries’ law and policies on migration. It is not surprising that both countries followed different paths through history, when it came to migratory movements within their territories. In the case of Brazil, colonial power enabled the presence of different kinds of population inflows. However, by the end of the nineteenth century and beginning of the twentieth, Brazil reshaped its migration policy so as to guarantee farmland production, and to whiten the Brazilian population, manifesting its economic and social goals of the time. Even though there have been limitations on immigration into Brazil during the country’s dictatorship period, despite the country’s population exodus in the 1980s, Brazil’s population continues growing through immigration, as it is still considered a destination country for people on the move. More recently, the arrival of refugees and people under protection on humanitarian grounds (Syrians, in

6.3 A Brazilian Legal Framework on Migration That Strikes Out from the. . .

233

the first case, and Haitians and Venezuelans in the second case) have introduced new challenges for Brazil’s migration process, forcibly triggering the introduction of the new Migration Law. When looking at Germany, history has shaped the country’s migration in- and outflows differently. Marked by several wars, restructuring and instability periods (Thirty Years War, the formation of the German State, the two World Wars and the formation and the fall of the iron curtain), Germany has been perceived as an emigration country. The post Second World War period and the guest worker program in the middle of the twentieth century contributed to Germany’s selfrecognition as an immigration country. Its adhesion to the European Union afterwards made the country open its horizons, applying new and common migration policies.

6.3

A Brazilian Legal Framework on Migration That Strikes Out from the Regulations on MERCOSUL Level

When we refer to the conclusions obtained in Chap. 4, we believe it is relevant to first make a general observation on the Latin American approach to migration. Before going into specifics of both Brazil’s and MERCOSUL’s legal framework on migration, we must cite Dembour, when she affirms that, apart from the legislations adopted by military dictatorships in the 1970s and in the 1980s (which includes the case of Brazil), “the Latin American attitude towards migrants might be described as relatively relaxed” (Dembour 2015, p. 15). The author explains this attitude by enumerating some characteristics of immigrants’ conditions in SouthAmerican countries: a broadly similar background between locals and migrants of South American origin; relatively small economic differentials, weakening the risk of the host population developing the fear of being submerged by have-nots in search of a better life; and the absence of an elaborate state social security system, lessening the perception that newcomers would unjustly benefit from a system which was built prior to their arrival.

We agree with the author, that this “relaxed” attitude towards migrants has a lot to do with the “relative culture of informality existing in Latin America. This may have made it possible for migrants to live without too many problems in a legally irregular situation” (Dembour 2015, p. 15). For example, even “illegal” immigrants are able to sell food, trinkets and other products in the streets of big cities such as Rio de Janeiro or São Paulo. Just like other Brazilians do every single day. As shown in the pages of the present work, in Brazil the population’s reactions against taking in and sheltering immigrants arise from racist actions and motives, rather than failings in the country’s economic or social security systems. In this context, considering Brazil’s migration law, we clearly understand that the country is facing a transitional period, as its migration law, which entered into force

234

6 Conclusions and Recommendations

in November 2017, is still under scrutiny of academia. The present work is, therefore, our contribution to further developments and applications of this new law. The law not only establishes new categorizations of immigrants, such as definitions given to border migrants and emigrants, but it also details the principles and guarantees of the Brazilian migration policy, which allows migrants human rights-based protection. As we have affirmed in the preliminary conclusions of Chap. 4, for the first time, a Brazilian legal provision dedicated to migration adopted principles, such as humanitarian protection; guarantee to family reunion; rejection to and prevention from xenophobia, racism and any other ways of discrimination; as well as nondiscrimination on the grounds of the criteria or of the proceedings that have been considered when admitting a person into Brazilian territory. However, it was also possible to identify some of the protective provisions and human rights-oriented guarantees and principles of the Brazilian law strained by Decree No. 9,199/2017, which is the instrument that regulates the new law. This happens especially because the Executive Power, according to the Decree, is allowed to decide on some of immigrants’ rights that are not clearly defined by the migration law, i.e., the Decree intends to fill some gaps left by the law. For instance, a conjoint act of the Ministry of Justice, Ministry of Foreign Affairs and Ministry of Labor, according to the Decree, shall define the conditions, deadlines and requisites for the issuance of a visa for immigrants on humanitarian grounds (Article 36, §1). The same provision applies for the issuance of a temporary study visa (Article 37, §3). These are only some examples in which the Executive Power, with a ministerial ordinance (which can enter into force from one day to the other) is responsible for determining an immigrant’s conditions of stay within Brazilian territory, causing legal insecurity to the immigrant. The Brazilian migration law also establishes, in Article 14, §5, the possibility of an immigrant acquiring a temporary working visa if he/she is exercising a profession in Brazil, with or without an employment link, as long as he/she proves a job offer was made by a legal entity that is active within Brazilian territory. This exigence is waived, however, when the immigrant proves to be qualified by a higher education institution or equivalent. Therefore, in order for an immigrant to be granted a temporary working visa, who does not have a degree in higher education, it is necessary that the individual has proof of a work offer, formalized by a legal entity, that is active in Brazil. We understand that the job offer can be evidenced by an invitation to a job interview. Such requirements are already per se restrictive, not only because the immigrant would not be able to establish himself/herself in Brazil to carry out his/her search for a job, but also because the requirement of proof of a job offer could lead the immigrant to enter the national territory illegally in order to start his/her search for a job. Furthermore, there is a clear selectivity of the profile of immigrants arriving in Brazil for working, since the possession of a higher education degree is sufficient for the granting of a temporary work visa, even if the qualified immigrant has not yet received a concrete job offer. The subject gets even more confusing and out of step with the provisions of the law when we analyze Decree No. 9,199/2017. This is because the migration law does not require the immigrant to prove the existence of

6.3 A Brazilian Legal Framework on Migration That Strikes Out from the. . .

235

an employment contract, in order to obtain a temporary working visa, just as Article 38, § 1, I, of the Decree innovated. This prediction hinders the access of immigrants to the Brazilian labor market, showing the protectionism of the national labor force present in the Decree, which limits the development of the labor market in Brazil with the inclusion of migrant workers (Article 3, VII, of the Migration Law), the labor inclusion of migrants (Article 3, X, of the Migration Law) and the free and equal access of migrants to work (Article 3, XI, of the Migration Law). Moreover, the termination of an immigrant’s stay within Brazilian territory has also suffered some changes since the entry into force of the new law. A positive example to be cited in this regard is the provision of repatriation in the new law that grants the immigrant/visitor a stronger legal security while trying to enter Brazilian territory. This is because, even though the refusal of entry of a person into a state’s territory has always been possible in Brazil (in accordance with the international law principle that no state is obliged to admit foreigners in its territory), the concrete rules on the refusal of entry were not provided by the revoked law. Another positive point regarding the new Brazilian law is that the grounds for expulsion must be motivated by a final criminal conviction, to which the immigrant is subjected. According to the revoked law, an immigrant that posed “possible risk” would already be sufficient for expelling him/her from Brazilian territory. All in all, although the Decree in some points jeopardizes the humanistic character of the new law, it can be affirmed that the new Brazilian migration law is a protective one, since it got rid of the shackles of undemocratic times. We also identified that the Decree sought to reserve decisions on key issues in the treatment of migrants (such as, for example, freedom of movement and stay within Brazilian territory, non-criminalization of an immigrant’s migratory status and the right to inclusion into the labor market) to the discretion of the Executive Power— through joint ministerial acts or representation by the Federal Police—using the criterion of the State’s interest from a static, protectionist and limiting perspective. The profile of the Decree reveals the desire of a State that wished to regulate the right to migration as an area that exclusively affects the interests of a State, either through the ipsis literis reproduction of the Migration Law, or through the use of anachronistic formulas inherited from the Foreigner’s Statute. It is, after all, an attempt to preserve the discretion of the State to adopt administrative measures, which opposes to the legislative efforts undertaken to create a new migration law. One that is compatible with the globalized society, and ahead of restrictive migration policies that are currently developed in foreign legal systems. By contrast, we could not affirm that the same level of development and protection to migrants, provided by the Brazilian migration law, could be expected to be present in MERCOSUL’s legal framework on migration. Firstly, it can be affirmed that migration is not a priority topic within the MERCOSUL system. As already mentioned in the preliminary conclusions of Chap. 4, during the transition period for the formation of the common market, migration was necessarily attached to the free movement of capital, goods, and services in the MERCOSUL region. Also, especially after the entry into force of the Protocol of Ouro Preto, migration issues had exclusively been characterized by labor migration, disregarding any international

236

6 Conclusions and Recommendations

migration law aspect human mobility requires. As already mentioned in Chap. 4, MERCOSUL showed its free movement of citizens orientation rather than an international migration law approach. We did prove, however, that MERCOSUL’s migration laws, norms, decisions, or any other statement that refers to migration or free movement of people in the region reveals an unstable character. This is so because these elements not only correspond to the will of a specific Member State acting in the name of a specific government plan, but also because the content of many of the documents analyzed in this work lacks profundity. As mentioned in Chap. 4, several decisions on migration, especially the CMC and GMC decisions, acknowledge the necessity of a migration legal framework for MERCOSUL, however their scope was too large to provide any in-depth discussions, and contained vague calls to action. In addition to this, it appears that the competence to legislate on migration issues within MERCOSUL’s structure is still uncertain. Citing the same example as in the conclusions of Chap. 4, travel documents issues have been firstly regulated by Resolution GMC No. 75/96, which has been revoked by Resolution GMC No. 31/08 due to Decision CMC No. 18/08. This last decision from 2008 was also derogated by Decision CMC No. 46/15, from which we can conclude that there is no clear competence division between GMC and CMC. Besides, the importance given to the migration and movement of people norms depends on the MERCOSUL’s body, which is involved in the deliberation of the norm. The main body for discussions on migration nowadays is FEM, which is subjected to the Meetings of Internal Affairs Ministers (RMI), as it is composed by them. Once the projects are discussed within the RMI, their suggestions might be sent to the CMC, which might or not adopt the decisions of the Ministers. However, we have also seen other instruments, for example the minutes of the Meetings of Internal Affairs Ministers (RMI), which have even declared some Agreements of the CMC as overlapping, and not requiring further discussions, such as the “Brasília Declaration on the Entry into Force of the Migration-Related Norms originated from the Meetings of the Ministers of the Interior of MERCOSUL and Associated States”. As already explained in Chap. 4, these minutes and declarations (also including the declarations of the Presidents and not only of the Ministers) do not have representation under the terms of the POP, meaning that they cannot be considered as an official legal source of MERCOSUL law. We suggest that any sort of migration-related norms should exclusively originate from MERCOSUL bodies that have a decision-making capacity, such as the CMC, which is responsible for the accomplishment of the goals provided by the Asunción Treaty and that produces the so-called “Decisions”, which are binding instruments to the Member States. We can therefore infer that, because the Asunción Treaty does not explicitly state that the Common Market of the South Cone also aims at the movement of people, MERCOSUL does not insert migration or free movement of people issues as one of the points to be enforced by the CMC for the sake of turning MERCOSUL into an effective common market. It is also important to mention, just as we did at the end of Chap. 4, the difficulty we have identifying not only the validity of the norms within the MERCOSUL, but

6.3 A Brazilian Legal Framework on Migration That Strikes Out from the. . .

237

also their implementation into the Brazilian legal system. Many of the MERCOSUL sources are outdated (and we refer specifically to the database available on the internet), and no organized, clear and structured repository of legal and/or administrative instruments is available. There are no clear rules, for example, on the necessity of internalizing a Decision of the CMC in order to make it valid for a specific Member State (even though these decisions are binding). There is, in fact, a repository of MERCOSUL Treaties available on the website of the Ministry of Foreign Affairs of Paraguay.1 However, the list of MERCOSUL Treaties does not always provide an accurate and correct list with information on the legal norms which made a specific MERCOSUL instrument enter into force. Therefore, researchers have to take into consideration not only inaccurate information provided by MERCOSUL’s official sources, but also various academic works, in order to verify the status quo of MERCOSUL’s and its State Parties legal provisions. Another point regarding MERCOSUL’s migration policies that should be mentioned (and that represents a very significant difference to the European Union) is MERCOSUL’s lack of definition on citizenship. As debated during Chap. 4, the project of MERCOSUL’s Statute on Citizenship would have to be strengthened as a way of enabling the identification of MERCOSUL’s citizens as such. In this regard, by the time the MERCOSUL citizen identifies his/her rights and obligations under the context of an intergovernmental entity (including the right to freely move within the region, labor rights, education, among others), he/she will be able to understand the concept and meaning behind the idea of a regional citizenship, considering not only the market-citizenship, but also the political citizenship, as it has been developed in the EU. This would facilitate the mobility of MERCOSUL citizens within the region, and also be the first step for developing a migration law and policy for third country nationals. Due to these structural debilities and due to the lack of definition of citizenship within MERCOSUL, it is difficult to refer to a common and stable migration law framework to be created by MERCOSUL to be applied either for the sake of mobility of MERCOSUL’s country nationals or of third country nationals (i.e. people who are not a national of any of MERCOSUL’s country). And this is something that we could affirm both in the short and in the long run, as, at least in Brazil, we have been recently experiencing anti-MERCOSUL plans and movements, especially after the beginning of the new presidency in January 2019.

1 A list of all MERCOSUL treaties and acts is available via http://www.mre.gov.py/tratados/public_ web/ConsultaMercosur.aspx.

238

6.4

6 Conclusions and Recommendations

An Administrative Law Approach on German Migration and a Selective EU Migration Law

By Chap. 5, we could clearly see the differences between the EU’s and MERCOSUL’s approach to migration, especially because of the level of integration between their Member States. This is why we structured the chapter separating the rights of entry and stay of third country nationals in Germany (Sect. 5.1) from the legal treatment given by the EU to its citizens (Sect. 5.2.1) and to third-country nationals living within EU’s territory (Sect. 5.2.2). As MERCOSUL does not directly approach the rights and duties of non-MERCOSUL nationals within MERCOSUL’s territory, the provisions of the EU on the migration of third-country nationals proved to be relevant, especially when analyzed under the context of German law. Comparatively, Brazil only has to deal with, at best, common provisions related to MERCOSUL citizens. When referring to the right of entry and stay of immigrants under German law, we could say that it is limited in contrast to Brazil. There, the freedom of movement is limited to gaps on the migration law that are filled with rules with wide margins of interpretation and modification by the Executive Power on the Decree. The freedom of movement of immigrants within Germany is limited by some of the terms of the Residence Act that are not completely defined and depend on the interpretation of the local public officer at the Foreigners’ Registration Office. When analyzing Section 9 of the German Residence Act, we can affirm that the basic requirements for the issuance of the permanent settlement permit demand a too strong level of integration. We believe that the requirement of possessing a basic knowledge of the legal and social system, and the way of life within Germany a too strict requirement, even when referring to a permanent settlement permit. After all, this level of integration is the kind of requirement that is often needed for naturalization processes, which is normally proved by means of a test. We refer once again to the high level of discretion of the German authorities when we cite the requirements for the issuance of other residence titles. As mentioned in the preliminary conclusions to Chap. 5, Section 17a of the Residence Act recognizes foreign professional qualifications as a first step to stay within German territory. However, the evaluation on equivalence of a foreign degree and/or qualification depends on the rules for recognition of profession. These rules are inconsistent from profession to profession and are subject to the specific rules of each professional category. Also, as provided in the end of Chap. 5, Section 16 (5) and all provisions of the Residence Act that restricts the granting of a residence title to the exercise of a profession that is commensurate to a foreigner’s qualification confirms a grade of discretion of the German immigration officer. Neither the German Residence Act nor its General Administrative Regulation defines what “appropriate” or “angemessen” means in reference to the employment the foreigner has to his/her qualification acquired. As already indicated in Chap. 5 of this book, No. 18a.1.1.2 of the Administrative Regulation of the German Residence Act determines that the employment taken by an immigrant must be appropriate to the immigrant’s degree.

6.4 An Administrative Law Approach on German Migration and a Selective EU. . .

239

Requirements are usually that the immigrant has an academic degree, and the knowledge acquired through higher education is at least partly or indirectly needed for exercising that specific profession. It is therefore clear to see that these requirements are too vague. Expressions used like “usually” and “at least partly or indirectly” open the doors to a wide range of interpretation left up to the immigration officers. Just like in Brazilian law, it was also possible to identify a selective character within Germany’s Residence Act’s provisions. As an example, we cite Section 18a, which allows qualified foreigners the pursuing of an economic activity within German territory, even though his/her deportation is imminent. It is, of course, good that a foreigner is given the possibility to work in the territory of a certain State, even though he/she is subject to deportation. However, we believe the intention behind this provision specifically refers to the fact that it is in the interest of the German State to maintain highly qualified immigrant workers within its borders, rather than unqualified ones who are also facing deportation. One could say that German law finds itself between a Zuwanderung and an Einwanderung policy. The European country grants several rights to foreigners who envisage a longer stay within the country, especially after the internalization of some EU provisions, but German law continues to focus on providing control and restriction of the influx of foreigners into its federal territory, using mostly an economic argument in order to attract qualified people within its borders. The EU also contributes to this inclusive, but at the same time selective, approach. It is true that, in relation to EU citizens, the EU aggregates their interests, allowing them free movement within the area. Exceptional cases that relate directly to the sovereignty of a Member State, as reported in this work, restrict the free movement of EU citizens within the area. These grounds include public policy, public security, public health, abuse of rights or fraud. Nevertheless, we understand that limitations to the free movement of EU citizens are hard to be identified by EU citizens themselves, not only because they do not feel they are informed about their free movement rights (as a citizens or as a worker), but also because the barriers of free movement within the EU are still difficult to transpose. These difficulties are evidenced in prejudice within the job market—where nationals from the newest Member States are often considered as second-class workers—, as well as in the argument that free movement provisions could disturb a Member State’s economy, which we proved to be untrue. Therefore, limitations on entry and stay of EU citizens in any EU Member State are mostly invisible, as they have to be endured on a daily basis in several “integration”-related situations, which only become apparent in cases like the BREXIT, where the fear of immigration played an important role. Referring to the EU’s approach to the entry and stay of third-country nationals, there is a fragmented set of rights, as we have not only association agreements, which select the desired immigrants from third countries for political and/or economic reasons mainly, but also the EU secondary legislation, which establishes restrictions to the movement of third-country nationals, framing the idea of free movement and free settlement rather as an exception. The four directives we commented in Chap. 5 of this work evidence that the EU selects immigration,

240

6 Conclusions and Recommendations

offering third-country nationals possibility to immigrate, especially if it is to exercise a highly-qualified profession and, consequently, improve the EU’s Member States economy and technological impact. There is a clear intention that an intellectual elite is attracted, citing as an example the Blue Card Directive. We do understand there is a legitimate interest of the States in developing its economy and boosting its competition in the world, however the price human beings have to pay is relatively high. We observe, for example, that some of the EU’s directives studied here do not apply to individuals who are under international protection (i.e., refugees and beneficiaries of international protection), which is the case of the Blue Card Directive and the EU Long-Term Directive (also under the context of German law). Therefore, we are not afraid to affirm that law and policies dedicated to non-forced migration are closely interlinked to law and policies focused on forced migration. Whenever a State or an integration actor, such as the EU, feels that its borders have to filter the entrance of forced migrants, its laws and policies regarding non-forced migration can become very strict. There is a clear division of unwelcome, non-EU nationals and desirable, non-EU nationals that becomes evident, not only when we consider the Blue Card Directive or the Long-Term Directive aspects above, but also when we observe the conditions of the Return Directive. This last one represents the criminalization of migration, when an illegal migratory status of a TCN opens room for his/her detention. Even though the detention in the Return Directive is allowed as a measure of last resort (when there is a risk that the immigrant absconds or in order to avoid or hamper the preparation of return or the removal process by the returnee) in order to proceed with the removal procedures, it still works as a punition for an illegal status that the immigrant most of the times did not really wished for. By contrast, we have the Long-Term Directive, which puts third-country nationals almost under the same conditions as an EU citizen. Liberal and strict legal rules on migration live together under the scope of EU law and policy on migration. It only depends on the desirable newcomers.

6.5

Final Comparisons and Outlooks

For all reasons herewith exposed, Brazilian migration law appears to facilitate more the entry and settlement of immigrants within Brazilian territory, in comparison to German law. There is one aspect though that could put the German law in a position of granting more legal security than the Brazilian one. As already commented in the beginning of these conclusions, the new Brazil migration law has its provisions regulated by Decree No. 9,199/2017, which not only details some provisions of the law, but also limits them while letting the Executive Power decide on some gaps left by the law. If it were not for some of these provisions of the Decree, the new law would be more stable when it comes to visa requirements. When we consider German law, its Residence Act is also regulated by another source, namely, the General Administrative Regulation to the German Residence Act (our free

6.5 Final Comparisons and Outlooks

241

translation from Allgemeine Verwaltungsvorschrift zum Aufenthaltsgesetz). This regulation, among other functions, details some of the definitions already brought by the law, giving some interpretations to them, but it does not seem to entirely leave decisions, such as the duration of a temporary working residence permit, in the hands of the Executive Power. A future challenge would be to analyze the level of discretion of German public officers while applying General Administrative Regulation to the German Residence Act, in order to verify if it would still be able to affirm that the Brazilian law makes more room for legal insecurities rather than the German one. Another point to be commented on refers to the concern that German law manifests when it comes to fight against terrorism. The word terrorism appears 30 times throughout the General Administrative Regulation to the German Residence Act’s text, whereas in the Brazilian migration law it only occurs twice, namely, (a) when the immigrant has been convicted of or is being prosecuted for terrorism and therefore can be prohibited to enter Brazilian territory (Article 45, II) and, (b) when the Federal Supreme Court has the possibility to disregard the political character of a terrorist attack, in order to authorize the extradition of an immigrant (Art. 82, §4). These facts might lead us to the idea that German law could be more complicit in seeing an immigrant as an enemy, or at least that possible terrorist attacks, involving the participation of immigrants, are something the German State considers a lot more than the Brazilian one. It is not only about a quantitative argument, however. The word terrorism appears mostly in the Administrative Regulation. It refers to obstacles imposed by law to the entry or stay of an immigrant within German territory (as, for example, a reason for expulsion—item 53.3.1.6—, or when referring to one of the prerequisites to be granted a residence title—item 5.4.2). Also, whereas Brazil gathers the rights and duties of migrants within one single law (apart from the law exclusively dedicated to refugees), Germany tends to separate its legislative framework on migration depending on the intention behind a person’s move into Germany (either because of persecution, of intended studies, or because of qualified employment). This is understandable, although more difficult to study and comprehend the subject, since these separations are often related to internalization of the European Union’s directives or other secondary sources of law. It is also related to the fact that MERCOSUL legal framework on migration— apart from some nice words in the principles and guarantees provided by Brazilian migration law—does not influence in either way Brazil’s legal internal rules on voluntary migration. This detachment, as mentioned above, and also inexistence of a migration legal framework for MERCOSUL Member States, will have to first transpose the difficulty of defining who is the MERCOSUL citizen, and in which stage of integration MERCOSUL finds itself. These are sine qua non conditions for the development of a common migration legal framework, which should bring together South Americans, and put them in a position of defining who, in the end, shall be considered as a third-country national. Lastly, the different legal nature of migration law adopted by Brazil (still arguable but academically considered as Private International Law) and Germany

242

6 Conclusions and Recommendations

(Administrative Law) lead to different approaches and, consequently, different levels of protection granted to immigrants. This is not only evidenced in the name given in order to refer to migrants (in Brazil, immigrants, emigrants, border resident, visitor, stateless; in Germany, the foreigner). It shows the differences between human beings who enjoy relative constrictions on their enjoyment of the rights of entry and stay, and administered people who are tolerated in a certain territory. It remains to be seen though if the legal understanding of movement of people as a Transnational Law of Human Mobility can contribute, in the near future, to a humanized treatment of people living outside of their place of origin. In a world where intolerance is in every single act of daily life and where people are segmented into nationalities, ethnic origins and color of skin, humanitarian treatment of immigrants (whether in Brazil, in Germany, or in any other State) and equality of people’s rights on a global level should encourage States to consider immigrants as human beings rather than as qualified working force only. Brazil has demonstrated to be in the right way, when compared with German and European Union’s legal provisions and policy proposals, but the country still has a lot to fight against its prejudice and social exclusion. It is important to mention some further developments that depend on an analysis of the subject in the following years, and that could confirm or deny the current conclusions presented by this work. The first one would be to analyze the level of discretion of both Brazilian and German authorities, when applying the Decree 9,199/2017, and the General Administrative Regulation to the German Residence Act respectively. It is also important to observe how the new Brazilian law will be applied in its first decade of existence, and also how, in Germany, the protection of immigrants and the attraction of working force will be successful after the entry into force of the Fachkräfteeiwanderungsgesetz in March 2020.

Reference Dembour M-B (2015) When humans become migrants – study of the European Court of Human Rights with an Inter-American Counterpoint. Oxford University Press, Oxford