U.E. şi fenomenul migraţiilor

Idealism and Realism in the European Union’s Immigration Policies
 

IRINA-RALUCA IVAN

This article analyzes several aspects of the EU immigration policies and advances the hypothesis that the EU is an idealistic community acting in a realistic manner in the field of immigration. By restricting the access of third country nationals, the EU actually sets limits on the access of migrants to basic human rights. The conclusion stresses the importance of identifying more efficient ways to manage immigration to the EU and to separate immigration from security issues in order to make it more coherent and inclusive.

Keywords: Human rights, immigration, freedom of movement, borders, European Union, restrictive policies, discrimination

The immigration policies that characterize the European Union’s member states and the general European Union’s discourse on migratory policies today seem to favour a certain type of immigrant, the one that brings economic benefits to the host country, at the expense of others. The human rights approach to immigration from the outside of the external borders, although present at both the level of the European Union and its member states, seems to have less impact on the border policies than the economic counterpart. Although constituted as an ideal community, whose essential value is freedom of movement within its territory, the European Union, in its efforts to protect the external borders from unwanted immigrants, acts in a realistic manner. The issue that needs to be analyzed relates to the consequences of these restrictive border policies on the life of immigrants, legal or illegal, and the impact of a „gated”¹ Europe on their basic human rights, inscribed in the fundamental human rights documents. Although freedom of movement is not recognized as a fundamental and universal human right, the consequences of blocking mobility for people endanger other basic human rights; it also becomes problematic when assessing the role of immigration policies within the European Union and their observance of human rights provisions.

1. The EU as an Idealistic Community

Although the European Union has initially been created as a mainly economic union, the essential goal was for the Member States to prevail over the traditional politics of sovereignty and power politics. Consequently, the members should put the interests of the community before the national interests and construct a new European system of law, an independent European judiciary, common institutions, and common policies. The European Union takes the form of the Cosmopolitan Governance imagined by Kant, in its attempt to take power away from the states. The roots of this challenge to construct a form of supranational governance are to be found in „the historical effort to eliminate war from the continent and to heal the wounds of Europe’s moral conscience”.²

From and idealist perspective, the European Union is:³
i. A community of values;
ii. A community of law;
iii. A community based on civil society;
iv. A community of solidarity;
v. A community of communities;
vi. A community of peace in Europe;
vii. A community of shared interests;
viii. A community that ensures protection of the EU and its members’ global interests.

In accordance with Habermas’ arguments⁴, the European Union can be considered an ideal community because:
i. Its intent is to overcome the weakness of the nation state and to create a strong community from which all the members benefit. The European Union Constitution and Law adopted by the institutions of the Union shall have primacy over the laws of the member states.
ii. It contributes to the reduction of the democratic deficit determined by nationalism, by ensuring an open space for debate and supervision on states’ policies.
iii. It ensures the protection of human rights for its members and rejects abusive policies directed towards European citizens by one or more of its member states (the recent rejection of Italy’s initiative to reintroduce visas for Romanian citizens when entering Italy).

2. The Realist Dimension of the EU

Although seemingly an ideal community, the European Union should also be seen from a realistic point of view. The establishment of the European Economic Community (EEC) was not only based on the desire to „preserve and strengthen peace and liberty”⁵, but also on the interests of the founding member states (France, Italy, Germany and the Benelux countries) in the aftermath of World War II. The goal was mainly to stimulate economic recovery and growth.⁶ The economic aspect was combined with the political goal of France to restrain a potential revival of the German power and also to try to make Europe less dependent on the United States. As Bhaba observes, „prosperity rather than justice or equality was the first concern”⁷. In realist terms, what happened with the creation of the EEC was a balancing of power, which keeps the peace and helps the realpolitik adepts to avoid conflicts. 

The national interest of states is an important element within the European Union. The structure of the EU, which is circulatory, but permits little contribution from the public sphere, is indicative of the important role that states play. A lot of debate has been developed around the notion of democratic deficit at the level of the European Union. According to this perception, the decisions taken at the level of the European level are not a reflection of the citizens’ needs and desires, but serve the interests of states at the political level.  The perceived problem is the informal aspect of the negotiations between the main policy-making structures, which leads to an „unpredictable and to a less than transparent policy making process”⁸.

The fact that the European Parliament lacked the co-decision right in the field of asylum and immigration for so long is relevant when we assess the realist elements in the decision-making process at the level of the European Union and shows the importance of national interests of the member states. According to the Amsterdam Treaty (Art. 67)⁹, the Council should have moved most part of the Title IV TEC, which comprises Visas, Asylum, Immigration and other elements related to the Freedom of Movement of Persons, from consultation to co-decision by the European Parliament. However, this procedure was delayed by the Council and offered in 2005 to make this change only if the European Parliament adopts the report on bio-metric passports as an urgent matter. ¹⁰ The bio-metric passport is a means of surveillance for the European citizens, which would make no sense in an area of freedom of movement represented by the EU. Consequently, the only reason behind such a desire to control people in their own common territory is the will of the member states to have an eye on who is going in and out of their country. Not to mention that if the European citizens are obliged to conform to these demands, this puts even more pressure for the control of the third-country nationals.

3. Idealist and Realist Interactions

In the case of the European Union, the idealistic morality works almost perfectly inside its borders. It also applies to certain states, which receive almost the same treatment as the member states (the positive visa list) regarding the right of first entry.

The freedom of movement for labour is provided in article 48(1) of the EEC Treaty, which requires the abolition of nation-based discrimination. The „workers of the member states” fully beneficiate of this right, as nationality is established as a basis for freedom of movement within the European Union.¹¹ The Maastricht Treaty opens by stating that „every person holding the nationality of a member state shall be a citizen of the Union”¹², awarding equal rights and privileges. In this way, freedom of movement is an inherent right for all the EU nationals, who can cross any border and enjoy the same rights as in their home country.

The Charter of Fundamental Rights of the European Union refers to dignity, freedoms, equality, solidarity, citizen’s rights and justice for the citizens of the European Union¹³:

The peoples of Europe, in creating an ever closer union among them, are resolved to share a peaceful future based on common values. (…) Conscious of its spiritual and moral heritage, the Union is founded on the indivisible universal values of human dignity, freedom, equality and solidarity. (…) It places the individual at the heart of its activities, by establishing the citizenship of the Union and by creating an area of freedom, security and justice.

The realist dimension of the ethics of migration seems to be implemented when it comes to immigration from outside the Union. We notice a switch in practice towards certain third-countries, whose nationals are perceived as threats to the well-being of the European citizens.

While the nationals of the member states can cross any border of the Union and take employment in any member state, and the ones on the positive visa list (citizens of the former EFTA and most OECD countries) have the right of first entry without a visa, nationals of the negative visa list do not enjoy the same rights. They need to be able to justify their reasons for travelling with appropriate documents and to demonstrate they have enough funds to cover their intended stay and return tickets.¹⁴

The Charter of the European Union states in its Preamble that the EU should work to ensure a „peaceful future based on common values”¹⁵. This phrasing can be interpreted as protective for the European citizens against any interference from the „outside”, meaning the external borders.  Furthermore „the Union contributes to the preservation and to the development of these common values while respecting the diversity of the cultures and traditions of the peoples of Europe as well as the national identities of the member states”. Because the Charter is referring only to the rights of the European citizens, it can be inferred that „peoples of Europe” means people of the European Union. The use of „preservation” of common values is quite problematic in the context of globalization and immigration and again it gives the impression of a tendency to protect what is European from what it is not. As one writer notes: „ It is not clear whether the development of an European identity meant increasing individuals’ sense of belonging to the Union or, more controversially, whether it was aimed at making them identify with other citizens of the Union; that is, identifying with fellow citizens to the exclusion of non-citizen residents”. ¹⁶

Although it has not been proven that the different welfare arrangements in the EU member states have constituted a decisive factor in increasing migration to those particular states, the general political discourse stresses the pressure that the immigrants put on the social security system. Only legal migrants have welfare rights and even in the case of social protection of workers unanimous voting is required under the Maastricht Treaty¹⁷. As ethics of migration, these measures equal the primacy of citizens’ social security over the one given to immigrants, because the member states consider themselves as primarily responsible for the well-being of their people. At the same time, when the economical conditions modify and there are political changes, some member states alter the policies of access and employment for foreigners that were granted to them before. One recent example is Italy, with the political victory of Lega Nord in 2008 and the more and more exclusionary discourse towards immigrants. The party defends cultural identity, security and the right of locals to prioritize their own needs, such as work, housing and access to social services over the needs of foreigners. ₁₈

The rise of the Lega Nord party has taken place in the context of the politicization of immigration in the member states of the European Union. Extremist parties in the member states of the EU have risen and gained more electorate in the last two decades through their discourses concerning immigrants. The perceived increase in crime and insecurity, fear of losing the cultural identity and concerns over the high level of unemployment have been the major points used in the anti-immigrant discourses. Parties like Lega Nord, focused on anti-immigration, are also present in Denmark (Danish People’s Party), Germany (National Democratic Party), France (National Front), Sweden (Swedish Democrats), the Netherlands (List Pim Fortuyn), Austria (Freedom Party)¹⁹ and in the new member states, like Romania (Romania Mare Party). The anti-immigration discourse, although not backed up by any empirical studies, has found its reflection in the fears of the European citizens.

The realist ethics of migration sees the citizens of the European Union as the main bearers of rights and the immigrants’ rights as secondary. The perceived insecurity brought by the foreigners is seen as something intrusive and abnormal, in comparison to the idealist ethics. The discourse that emphasises the importance of EU citizens being considered first and the cultural and societal threat of immigration has gained popularity in the last two decades and resulted in restricted rights for legal immigrants and almost no rights for illegal immigrants to the EU member states. As realist say, the „ought/can” should be as close as possible to the „is” in order to preserve the security and well-being for the citizens of the community.

4. The Middle Way

Many researchers in the field of immigration are focusing on what would be a good strategy that would benefit both the EU member states’ and the immigrants’ interests. The main problem is that there are serious conflicting asymmetries between the labour markets of the EU, as well as between the sending and the receiving states.²⁰ These asymmetries are generating incoherencies that need to be solved and the solution could be more international cooperation. One proposal that was put forward by the researchers Straubhaar and Zimmerman was the General Agreement on Migration Policy, according to the model of The General Agreement on Tariffs and Trade that regulates the international movement of goods²¹. The proposed Agreement would lead to the development of a coherent and harmonized immigration policy for the European Union which would not only take into consideration the labour shortages in the member states, but also the asymmetries between the destination and host countries. More effort should also be put in integrating general clauses concerning the protection of the human rights of illegal immigrants/asylum seekers/refugees into bilateral and multilateral agreements, which would have to be closely supervised and go through periodical assessment.

Another element that should be taken into consideration and applied, at least partially, for the third countries is the EU’s successful experience with the intra-EU migration that proved stable and with positive effects over time.²² The freedom of movement inside the Union can serve as a model for a gradual opening of the borders that can be followed by propositions on what can be done to ensure a coherent management of migratory flows, according to the results that are observed. This strategy can be feasible for the two parties involved in the process, the member states and the immigrants. In order for this to be done, the member states of the Union should stop obsessively bringing together the notion of immigration and security together and also focus on the positive aspects of general migration in the European context.

In order to eliminate the false perceptions that are disseminated by the populist parties regarding the negative portrayals of immigrants, the European Union should publish official documents to show the benefits of migration and to eliminate the persistent clichés on immigrants. The focus should not only be on economic migration, but also on family reunification, integration of asylum seekers and refugees.

Conclusion

As a community of values, the European Union should free itself from the fear of losing identity and it should learn from its own example of open borders that immigration can work in its own interest. The elements that make the European Union an ideal community within, could serve as a model on the global scale. Migration and international cooperation could probably solve what development aid cannot and this should be regarded as a priority, especially considering the major problems that the world is facing today.

Taking all the elements into consideration, we can observe that the European Union’s ideal practices in the field of mobility are somewhat restricted to its own space and citizens. This is the result of the „securitization” of immigration and the ambiguity/asymmetry that dominates the notion of security in the member states. The fate of a human-rights based immigration policy at the level of the European Union depends entirely on the ability of member states to agree on the factual problems, on a common definition of security and what it entails, the development of common procedural rules, rights and obligations of the immigrants, and the expansion of these instruments at the supranational level, supported by a sense of solidarity between the policy-makers. Migration will always be present and it should be perceived as something normal and necessary in the European Union today. Managing migration is also necessary, but the kind of management that does not sacrifice lives in order to serve economic interest.

IRINA-RALUCA IVAN - Graduate Student, The European Inter-University Center for Human Rights and Democratization.

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