Immigration in the Borderless Europe

Course : The Legal Framework of EU Policies Student : Dang Thi Huyen Trang Professor: Luisa Antoniolli Matricola: 161142

Topic: Immigration in the “borderless” EU – Policies and Practices

Freedom of movement is a central feature of the European integration process, and is

arguably widely perceived to be a positive achievement of the still-controversial European

project. As free mobility within the Schengen area is enjoyed not only by European citizens, but

also extended to third-country nationals (TCNs), it has made Europe a much more attractive

destination for professionals, students, and tourists but at the same time, further complicated the

European Union’s immigration picture. The European Union (EU) is more than ever forced to

balance between a “magnet” Europe to attract high-quality labor, and a longstanding “fortress

Europe” against irregular immigrants. This paper will study the situation of legal and illegal

immigration in the EU, and the EU’s relevant handling policies.

The key milestone in the history of the Schengen Area dates back to the year 1985, when

five Member States: Germany, France, Belgium, Netherlands and Luxembourg, autonomously

negotiated and signed the Schengen Agreement in the city of Schengen (Luxembourg), which

was then outside the European Community legal system. The Schengen Agreement provided for

the principle of abolishing internal border checks among its signatories. Its later evolved version,

the Schengen Convention (1990), which entered into force on 26 March 1995, set out detailed

rules on the following issues:

(1) Abolishing internal border checks

(2) Strengthening external border controls

(3) Harmonizing visa policy

(4) Regulating movement of third-country nationals

(5) Allocating responsibility for asylum requests

(6) Creating the Schengen Information System (SIS)

As it can be seen, even though the principle of freedom of movement of workers was considered

fundamental to the idea of first and foremost an “Economic Community”, the very first step to

realize it started outside the acquis communautaire, and was only to be applied incrementally.

The Schengen Area was expanded to Italy in 1997, then Austria in 1998, Greece in 1999.

Despite the Single European Act of 1986 that demanded the establishment of a common market

allowing for the “ensured" free movement of “goods, persons, services, and capital”, not until


1999 that the Schengen Convention became part of the EU acquis. Since then, the Schengen

enlargement process took place at a faster pace, with Sweden, Finland, Denmark, Norway and

Iceland all joined in 2001; nine new EU Member States in 2007, and the four remaining EU

Member States (Bulgaria, Romania, Cyprus, and Croatia) are expected to join in 2015 and 2016.

The Schengen Area had a slow start, however, it now consists of 26 countries, including non-EU

ones, and has successfully extended the initial scope of freedom of movement for workers to all

people, including third-country nationals.

The freedom of movement of third-country nationals within the EU was objected by the

United Kingdom, who insisted that it be granted to only nationals of EU Member States (and

eventually kept out of the Schengen acquis). However, as a matter of practice, it was impossible

to selectively check a certain groups of people suspected to be non-EU citizens. The following

question would arise: What are the criteria for a person to be checked? Physical traits may be

misleading, while provoke the issue of discrimination. In fact, it was a matter of checking either

everyone, or no one, and the latter has prevailed. Nevertheless, conditions apply to the third-

country nationals: third-country nationals must prove, upon request that they have entered the

territory lawfully, hold a valid visa, travel document or residence permit and satisfy entry

conditions. In addition, their freedom to move is guaranteed for a maximum period of three

months and may be subject to member states’ requirements (Atger 2008). These conditions

indeed gave grounds to scattered securities checks and spot checks within the internal borders, as

a means to combat irregular immigration.

The “borderless Europe”, therefore, does not mean Europe without border controls, either

internal or external. In parallel with the Schengen Convention that entitles traffic and people to

move smoothly from one Member State to another without being checked at the border, it also

provided for the possibility of spot checks on major main roads and the Schengen Borders Code

defines the circumstances under which police powers may be exercised. Furthermore, new

Schengen Member States have to undergo a period of usually five years to consolidate their

external borders, before being allowed to lift border checks. Further, temporary re-introduction

of internal border controls may be carried out in extreme situations that endanger national

security or policy, as in fact implemented 17 times so far, for example by Germany while

hosting the G8 Summit, as well as France in 1996 and Austria in 2008. (Atger 2008)


Having discussed the legal context of the EU without internal border, we now move to

investigate the two sides of its exogenous result: legal and illegal immigration.

Legal immigration is not only viewed as fundamental human right, especially when it

comes to family reunion, but to a great extent, also desirable regarding the worldwide race for

talents and the EU’s demographic decline. On the other hand, it has been recognized that, in

spite of even the most “draconian” measures, “zero immigration” from outside the European

Community is far closer to an illusion than a practical reality. One demonstration was that,

during the early 1970s, even though the European borders had been closed, legal immigration,

however reduced, continued to happen. One example could be given on the states’ rigorous

attempt to halt family unification, which happened in France in September 1977. Nevertheless,

the Council of State – the highest administrative court, reversed the policy, on a basis of

fundamental obligation to protect marriage and family life (Schain 2009). The consequence of

legal immigration, thus, took an unintended direction: it was transformed from temporary labor

migration into permanent settlement of families. In all cases, states are considerably constrained

in taking measures against legal immigration in the form of family union due to the prevalent

principle of “embedded liberalism” in international norms and practices. Such basic human

rights to marriage and family are not only secured by national constitutions and institutions, but

are globally ensured by international agreements on the basis of personhood, transcending

traditional national citizenship.

Facing this new scenario, the EU has tried to develop a different, coherent strategy in

order to positively manage immigration, in particular in 2008 the European Council decided to

solemnly adopt the European Pact on Immigration and Asylum, one of whose five basis

commitments was:

“to organize legal immigration to take account of the priorities, needs and reception

capacities determined by each Member State, and to encourage integration”

In other words, as immigration is recognized as an indispensable element as long as the

discrepancies of wealth among different world regions still exist, the EU now seeks to manage

immigration in the direction of mutual benefit for the immigrants and the Union likewise, in

terms of both primary migration (labor immigration) and secondary migration (family

unification).


It has been pointed out that the EU is now economically and socially in need of labor

immigration in order to fill the labor gaps and sustain the welfare state models. The following

chart illustrates these two points for the particular case of Italy as a prime example:

(Birmingham 2001)

With low fertility rate and increased longevity, Italy is now facing a demographic crisis with

fewer people in the working age than needed in order to support the non-working groups, which

threatens to disrupt the society and the economy. Immigration, therefore, is regarded as an

inevitable solution, though only partial, to ease this problem.

Apart from the general trend of demographic decline, more importantly, the EU recognizes the

urgency to take an active part in the global competition to attract talents to come and contribute

to the Union’s economic vitality and growth targeted in the Europe Strategy 2020, and making

itself “attractive” in the eyes of high-quality professionals instead of losing them all to the United

States or Canada. This spirit was officially documented in the 2009 Stockholm Program,

followed by the discussion and introduction of the Council Directive 2009/50, or the so-called

Blue Card Directive (2009). In the Explanatory Memorandum to the Proposal for a Council

Directive on the conditions of entry and residence of third-country nationals for the purposes of


highly qualified employment ( COM (2007) 637, 23.10.2007), European Commission admitted

that:

“ the EU as a whole [...] seems not to be considered attractive by highly qualified

professionals in a context of very high international competition [...]. The attractiveness of the

EU compared to such countries [USA and Canada] suffers from the fact that at present highly

qualified migrants must face 27 [now 28] different admission systems (1), do not have the

possibility of easily moving from one country to another for work (2), and in several cases

lengthy and cumbersome procedures (3) make them opt for non-EU countries granting more

favorable conditions for entry and stay.”

Thus, the EU must seek to sell its decisive advantage of allowing the high-qualified

professional to access a wide job market of 28 countries through the administration of a common

system that could make the potential workers:

“ - be admitted under common rules;

- enjoy the same level of rights throughout the EU; have the possibility of moving from

one member state to another so as to adapt and respond,

- promptly to fluctuating demands for highly qualified migrant labor;

- be fully integrated into the EU.”

After lengthy discussions among Member States, the final adopted text defines “highly qualified

employment”, the target of the Blue Card directive, as follows:

(1) The person must be protected as an employee under national employment law and/or

practice, for the purpose of exercising work for someone else

(2) The person must be paid

(3) The person must have the required adequate and specific competence, proven by higher

professional qualifications.

(Article 2(b) of Council Directive 2009/50/EC)

In this light, the Blue Card holders enjoy an integrated work and residence permit on the basis of

a single procedure. They are also ensured equal treatment with EU nationals in seven significant

areas: (1) Working conditions (regarding pay, dismissal, health and work safety); (2) Freedom of

association (with trade unions); (3) Education and vocational training; (4) Recognition of

diplomas; (5) Access to social security as defined by EU Free Movement Rules; (6) Access to

goods and services including procedures to obtain housing; (7) Counseling services by national


employment offices. The 2010 Directive on a Single Permit also specifically sets out the time

frame allowed for national authorities to make decision on the application, which should be no

longer than 4 months. Article 15 of the Directive also grants the Blue Card holders more

favorable treatment with regards to family reunion, as well as access to employment for their

family members without any time limit. The Blue Card holders are free to move to another EU

country after 18 months’ legally residing in the first Member States.

Besides undeniable positive effects that make the lives of legal immigrants much easier

(especially thanks to the anti-discrimination policies), the Blue Card Directive still face

considerable controversies and challenges. Firstly regarding the admission criteria. Member

States agreed on the salary as an important criterion and set the required coefficient of 1.5 times

as much as the average national gross wage, however; the major differences in national

minimum wage inhibit harmonization. Considering the fact that average gross salary ranges from

€13,372 in Hungary to €61,640 in Sweden, (Eisele 2013), it seems tricky to determine who

could be classified as “highly qualified” TCN workers. Secondly, the required first 18-month-

period of residence in the first country means that the Blue Card holders are forced to be

immobile during that time, which remarkably reduces the vital intra-EU mobility which the EU

is trying to sell. Thirdly, the many “may-clauses” in the Directive’s provisions give the Member

States a wide leeway to actually transpose into their national legal system as well as implement

it. This difference in practice was reflected in the number of Blue Cards issued by different

Member States, take the example of 8000 Blue Cards issued by Germany from August 2012 to

June 2013, and only 50 by France in 2012. It is even argued that national ministers seek to

pursue a strategy called “venue shopping” at EU level just for the purpose of evading domestic

constrains and gain more autonomy (Schain 2009). As a result, the EU is not well perceived as

one single European market today. Most importantly, the Blue Card Directive has revealed the

fact that the EU still prioritizes the interests of its institutions rather than those of the immigrant

workers.

On the other hand, illegal migration is deemed to be austerely combated. The rationale

for immigration restriction was attributed to the Union’s limited capacity and resources to

“decently” accommodate all the migrants hoping for a better life in Europe; and the risk of

disrupting the social cohesion of the host country should immigration be poorly managed. From

this point of view, immigration must be facilitated according to Europe’s “reception capacity” in


terms of labor market, housing, healthcare, education, and social services. On the other hand,

Europe will engage in the fight against criminal networks that smuggle and exploit those

irregular migrants. In fact, it is in the area of border control that member states have achieved far

more cooperation and results in comparison with legal migration. (Schain 2009)

Irregular migrant is defined by the International Organization for Migration as :

“ A person who, owing to unauthorized entry, breach of a condition of entry, or the

expiry of his or her visa, lacks legal status in a transit or host country. The definition

covers inter alia those persons who have entered a transit or host country lawfully but

have stayed for a longer period than authorized or subsequently taken up unauthorized

employment (also called clandestine/undocumented migrant or migrant in an irregular

situation).”

It is also noted that the term "irregular" is preferable to "illegal" because “the latter carries a

criminal connotation and is seen as denying migrants' humanity”. Nevertheless, within the EU,

there are still national variations with regards to the definition of irregular migrants, as illustrated

in the following table:

Country Term/Definition Law

Germany Unlawful entry. Foreigners no longer

possessing a necessary residence title

to a right of residence and required to

leave the federal territory.

Aufenthaltsgesetz (Residence

Law)

Netherlands The presence of foreign nationals

who are not in possession of a valid

residence permit and are therefore

obliged to leave the country (and)

defined as “unlawful stay illegals”

2000 Aliens Act.

Spain There is no term in national

legislation for irregular

immigration/irregular situation.

Ley organic 8/2000

Rules of implementation of

the law on Foreigners

Italy Foreigners in an irregular position Bossi-Fini Law No. 189/2002

Poland Non-legal, illegal crossing of the

border, residing in the territory

Act on Aliens


without the required visa or permit.

(Morehouse and Blomfield 2011)

Brussels’ position on immigration is stated in the European Pact on Immigration and Asylum

13440/08, whose aims are:

“ - to control illegal immigration by ensuring that illegal immigrants return to their

countries of origin or to a country of transit;

- to make border controls more effective;

- to create a comprehensive partnership with the countries of origin and of transit in

order to encourage the synergy between migration and development.”

The EU has achieved remarkable progress in intergovernmental cooperation for immigration

and external border control, which could even be considered “the most notable achievements of

Justice and Home Affairs during the last five years” (Schain 2009).

In order to deal with the irregular immigrants currently in the EU, the EU adopted the

Returns Directive (Directive 2008/115). The principle is that all irregular immigrants must leave

the territory immediately. Accordingly, all Member States are requested to issue a return

decision to every TCN staying illegally on their territory (however, Member States are given

considerable autonomy to act otherwise due to humanitarian reasons). The Directive also

addresses voluntary departure, which should be allowed by a return decision, within seven to

thirty days. In the case of expulsion/deportation, the EU provided for Mutual Expulsion

Measures, specified in the Directive 2001/40, which makes possible “the enforcement of an

expulsion order” issued by one Member State in another Member State, against a TCN of any

age. The state issuing the expulsion orders shall compensate the state enforcing expulsion orders

for transport costs, administrative costs, mission allowances for two escorts, and accommodation

and emergency medical costs for the escorts and the expellee(s). In order to help Member States

with this task, in 2004 the EU adopted a Decision on Joint Expulsion Flights, which transfers the

expenses of joint expulsion flights to the EU’s Return Fund. The Member State organizing a

joint flight is requested to inform other Member States, and if a Member State wishes to

participate in the joint flight, it shall inform the organizing Member State of the number of

expellees, as well as provide a sufficient number of escorts.

With regards to the prevention of immigration, the Schengen Convention 1990 initially

sets out the rules and sanctions, and significantly transfers the liability for controlling entry to the


passenger transport companies. The carriers are held accountable for TCNs who they have

brought to the external borders of the Community and then are refused entry, which means the

carriers must return such persons to a third state, as well as pay for the occurring expenses. The

Schengen Convention thus requires carriers to ensure that TCNs have the necessary travel

documents and are obliged to transmit passenger data upon request of external border control

authorities, or will be penalized. In addition, the EU has set up the Schengen Information System

(SIS), which makes available a common list of names of people who are not allowed to enter the

Schengen Area. The system has been in place since March 1995 and has entered into its second

stage – the SIS II- since April 2013. The new version provides more functions and categories of

data, such as biometric data, as well as allow more actors, such as Europol, to have access to it.

Besides, in 2007, the Rapid Border Action Teams (RABITS) was set up with a view to providing

“rapid operational assistance for a limited period to a Member State facing a situation of urgent

and exceptional pressure” from a large number of illegal entrants. The host Member State shall

request the deployment of RABIT, and the other States shall make available their national border

experts for the operation.

Arguably the most famous agency for external border control, FRONTEX plays a prominent role

in the Management of Operational Cooperation at the External Borders. It was set up by the

Council Regulation 2007/2004 and started its responsibility in May 2005. The agency’s tasks

include coordinating operational cooperation between Member States, assisting Member States

in the training of national border guards, carrying out risk analyses and research for the control

and surveillance of external borders, and providing Member States with necessary technical

expertise at external borders, as well as organizing joint return operations.

As it can be seen, the approach towards immigration at the European level is “structurally biased

towards restrictive policies linked to security considerations” (Schain 2009).

However, more restrictive measures usually lead to an increase in entry via unofficial and

more perilous means of transport and routes, and render the EU to engage in other battles against

human smuggling and trafficking. The EU has adopted a number of acts against human

trafficking, such as the Joint Action (1997), then the Framework Decision (2004), which requires

Member States to apply criminal sanctions to trafficking people, and a Directive on Trafficking

in Persons adopted in 2010 that includes the exploitation of “begging” or criminal activities, or

the removal of human organs.


The result of cooperation at the European level has yielded positive results in the last years.

According to a report by the Migration Policy Institute published in December 2011, the detected

annual flow of irregular migration into Europe decreased from 2007 to 2010, and the estimated

number of irregular migrants in the EU-15 countries has declined on average since 2002. Also

the first quarter of 2011 saw fewer detected illegal crossings over the EU’s external borders due

to both bad weather, and increased operations along the Greece-Turkey border. Compared to the

number of irregular immigrants in the United States, estimatedly around 11 million in 2008 the

number in the EU is significantly lower, from 1.9 million to 3.8 million.

In conclusion, since the Treaty of Amsterdam entered into force, the European Commission has

tried to balance the “fortress Europe” approach with a new and more open attitude towards

migrants, firstly for the EU’s own economic interests. Nevertheless, recent events such as the

“Arab Spring”, Syrian war and the Islamic State have seemingly reinforced the national and

European public discourses on the need to reinforce external control in order to avoid

immigration flows. Yet current debates, influenced by the tragedy of Lampedusa shipwreck in

October 2013, are shifted to the issue of the violation of human rights and whether the

responsibilities fall to the EU or to singular Member State. Generally, there is a consensus that

irregular immigrants are also entitled to human rights and to human dignity, protected by the

European Charter of Fundamental Rights. The widely practiced detention centers for

administrative purposes have raised a number of issues over the protection of the supposedly

“illegal” immigrants’ human rights. This existing “policy gap” between EU policies on irregular

immigration, social realities, and Member States’ actual practices – which have frequently made

use of European policies to control immigration rather than accommodate immigration, is a real

challenge to the EU’s policy-making and enforcement over immigration.

References

Literature

Atger, Anais (2008), The abolition of Internal Border checks in an Enlarged Schengen Area:

Freedom of movement or a web of scattered security checks?, Research Paper No.8, CEPS,

Brussels, March.


Schain, Martin (2009), “The State strikes back: Immigration Policy in the European Union”, The

European Journal of International Law, Vol. 20, No. 1, pp. 93-109.

Morehouse, Christal and Blomfield, Micheal (2011), Irregular Migration in Europe, Migration

Policy Institute, Washington DC, December.

Birmingham, John (2001), “Immigration: Not a solution to Problems of Population Decline and

Aging”, Population and Environment: A journal of Interdisciplinary Studies, Vol. 22, No. 4, pp.

355-363.

Eisele, Katharina (2013), Why come here if I can go there? Assessing the “Attractiveness” of the

EU’s Blue Card Directive for “Highly Qualified” Immigrants, Working Paper No. 60, CEPS,

Brussels, October.

International Organization for Migration, “Key Migration Terms”, Accessed on 30 January 2015

at:http://www.iom.int/cms/en/sites/iom/home/about-migration/key-migration-terms-

1.html#Irregular-migration

FRONTEX, Mission and Task, Accessed on 30 January 2015 at http://frontex.europa.eu/about-

frontex/mission-and-tasks

EU Documents

Council of the European Union (2008), European Pact on Immigration and Asylum, 13440/08.

24 September 2008.

Council of the European Union (2009), Council Directive 2009/50/EC on the conditions of entry

and residence of third-country nationals for the purposes of highly qualified employment, 25

May 2009.

Charter of Fundamental Rights of the European Union (2000), Official Journal of the European

Union, C 364, 18.12.2000

The European Parliament and The Council (2008), Directive 2008/115/EC on common standards

and procedures in Member States for returning illegally staying third-country nationals, L 348

Official Journal of the European Union. 24.12.2008

Council of the European Union (1990), Council Directive 90/364/EEC on the right of residence,

OJ L 180, 28.06.1990.

http://www.iom.int/cms/en/sites/iom/home/about-migration/key-migration-terms-1.html#Irregular-migration

http://www.iom.int/cms/en/sites/iom/home/about-migration/key-migration-terms-1.html#Irregular-migration

http://frontex.europa.eu/about-frontex/mission-and-tasks

http://frontex.europa.eu/about-frontex/mission-and-tasks