The philosophy
The right to move freely represents one of the fundemental freedoms of the European internal market. This general rule on free movement rights under EC law continues to be developed,[1] either due to member state progression or economic and social demands. Although one of the most panoramic in it’s ideals, the free movement of workers has seen several central legal issues arise on various occassions. But exploration of these central issues must be seen through a consideration of the tensions and interplay between both economic and social aspects of the free movement of people from both inside and outside of the European Union.
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The free movement of a citizen of the European Unon is seen to contribute to the economic progression of the Community as a whole. In the single market the worker is also a human being exercising their right to live in another state and to take up employment without the risk of discrimination and to improve the standards of living for themsleves, and possibly, their families.
But for nationals of a third party cases such as Chen (2004), Baumbast (2002) and Carpenter (2002) have meant that as the spouse or realtive of an EU citizen their entry into the Community is a secure one. Further, gaining the same rights of an EU citizen under Regulation 1612/68 EEC.
But this idea of border controls and unfettered freedom of movement within the Community is closely interlinked with the posiiton of the non-EC national, whose right to movement and residence under EC law is limited,[2] as well as the contribtuing effect that the members states’ attitude has upon their admission.[3]
“Fortress Europe”
Although EC legislation had intended that internal barriers to the four freedoms be eliminated and that only an external barrier (at the borders of the Community) remain, academics have argued that this may not always be so:[4]
“[how] these proposals have been watered down through discussion in member states, in particular in relation to employment, which is an important requisite for the integration of migrants.”[5]
Whilst the freedom of the EC worker is guaranteed through Treaty rules and secondary legislation, this does not mean that member states may no longer exercise control over population movements, into and within their territories.[6] But some ECJ case law on Directive 68/360 expressly recognised that member states may have legitimate reasons for wishing to keep account of the population within their terrrtories.[7]
The European Union, by using border controls to it’s extremities, has managed ot create a border-free, intra-EU site creating what has been dubbed as “Communierisation” of its geographical position.
Although the EU has been successful in its pursuit of removing internal barriers to the four freedoms, it’s imposition of external barriers (namely, the “fortress Europe” tendany) are imposing upon those nationals of third parties from stepping into Europe unless they are related to a citizen of the EU who excerts their right to free movement.
The EU has long been attacked as an exclusionary organisation concerned solely with the citizens of its own member states at the cost of non-EU citizens residing in the EU, even though many of the latter form part of ethnic or religious minorities and suffer social exclusion.[8]
So, it seems that the principles governing the borders of the Community are failing those third party nationals.[9]
The “Outsiders”
A vivid example of how “fortress Europe” had imposed this restriction can be noted prior to the accession in 2004 of many, now, Central and Eastern European countries. Lavenex[10] argues that prior to, and with suggestions of accession for Central and Eastern European countries the, then, current members of Europe had feared large-scale immigration from these countries into their own territories. The EU’s already heavily regiinented rules of external border barriers on trade and migration from “outsiders” (those countries not members of the EU) where to form part of the accession policies. Meaning that the acceeding Central and Eastern European countries encountered stringent preventative stances to their entrance into the EU on beahlf of the Community.
But during a time when security at an intergovernmemtal level is already on red alert due to heightened tensions caused by the threat of terrorism,[11] it appears that migration has become a security rather than economic issue. So risking mmigrants and asylum-seekers being portrayed as a challenge to the protection of national identity and welfare provisions. Moreover, supporting the political construction of migration as a security rather than economic issue.[12]
Getting in or staying out?
The treatment of third country nationals (besides those who have derived rights through Community family members) can be understood through external and internal dimensions. The external element, namely the issue of “getting into the EU” focuses on the member staes and the institutions emphasis of immigration and border controls. Yet, according to the case of Wijsenbeck[13], the member states are still able to perfomr checks at their own borders, be them external or not. But this policing of movement draws attention to the vulnerablity of the third country national.[14] But progression has been felt. Through Artcles such as K.1 to K.9 of the TEU governing policies such as asylum, immigration and third country nationals which have now been intergrated into the EC Treaty (as Title IV) , as well as Regulations have now inacted the uniform format for visas.[15] Regulations also cover the listings of third countries whose nationals must be on possession of visas when crossing external borders.[16]
Importanly, the area of immigartion and the member states’ stance on the matter of border control is liable to change in accordance with their political climate. The emphasis post-September 11th has fallen squarely on matters of security.[17] Various member states have also expressed concern at the numbers of third country nationals seeking asylum in their territory, so reinforcing their diffculties in gaining access into the EU.
The internal dimension of the matter is one which concentrates on the rights of third country nationals already residing within the Community. As there is no stringent source as to their status upon this; such limiteed rights are based on various possible provisions. This can include their capacity as a family member of an EU citizen (as aforementioned) or as employees of EC service providers or as subject to one of the Community’s Assocaition, Co-operation or other International Agreements with third countries.[18]
Even though their residence in the EU may be legitimate the general range of EC rights and freedoms, however, do not apply to them. With speculation increasing as to the possible imposition of ID cards within the UK has also been backed by the controversial possible introduction of the staus of European citizenship. This citizenship, which would be conditional upon the possession of member state nationality, may only serve to emphasise the differences in treatment between EU nationals, who possess such nationality, and those who do not.
But from an economic standpoint, countries potentially out of the line of terrorist fire have welcomed the idea of third country nationals, especially those intending to work, as being a potential boost to their economy. Yet the richer member states argue that the heightened security risks and “flood gate” effects that recent accession has had is already having an adverse effect on their economies.
Concluding – Staying stationaery or moving through the times?
But Peers[19] argues that change may soon be on the horizon with the implementation of Directive 2003/109 on the status of long-term resident third-country nationals within the European Union. This Directive was an opportunity to address the long-standing criticism that the EU gives insufficient protection to its resident third country nationals. Already being reported as limited and disappointing in a number of respects. Yet, if consequential jurisprudence reflects its interpretation as being in line with the context and objectives of the Directive, it could make a positive contribution to the status of third country nationals in the EU. This especially as in regards to movement between member states.[20]
By common accord, the unity the EU claims for itselff when constituting itself as an “area of freedomn, secrutiy and justice” has become troublesome. Critics are quick to point out that the area in which freedom, security and justice are to reign is a “spurious geographical unity”.[21]
Yet, even if it were to be accepted that Europe is a geographical union, the fact remains that the EU has agreements with countries outside of this territory (such as the 1963 Ankara Agreement with Turkey), meaning that EU extends its reach outside of this area.[22]
One of the main arguments behind the impact Europe is having by “sealing off” its border lies closer to home. Given that accession into the Community is based upon adaptation of national policies, be them economic, political or social, to those already established within the EU, many countries faced closing their borders to the outside for upholding the principles of preventing illegal immigration. But, in contrast to this member states are also expected to uphold the humanitarian standards of refugee protection[23] and the principles of the European Human Rights Act. With the EU being a figure-head in the creation and implementation of human rights agendas, this contradiction will only serve to weaken the EU’s leading political status. Where member states face penalties for failing to uphold either of these policies, many are at a loss as to which one prevails. These conflicting ideals have obviously affected the manner in which those member states with borders to the “outside” have integrated the principles into their immigration and refugee procedures. Further to Lavenex’s idea of fear of mass migration by the West, Huysmans alleged that the question of migration from countries external to the EU is a security problem rather than just one of immigration and asylum. As Huysmans states:
“Since the 1980s, the political construction of migration increasingly referred to the destabilizing effects of migration on domestic integration and to the dangers for public order it implied.”[24]
Huysmans also alleged that due to such developments as the Schengen Agreements and the Dublin Convention
“…visibly indicate that the European integration process is implicated in the development of a restrictive migration policy and the social construction of migration into a security question.”
This meaning that access for third country nationals is now even tougher maybe the member states would prefer for the barriers surronding “fortress Europe” to reamin?
The Schengen Convention completely removed border controls and placed stricter contorls at the external barrier of the EU. This resulting in a stronger emphasis on external restrictions and lifting all restirtcions between member states. The Schengen scheme had been directly accredited to concerns over the increase of organised crime within the Coimmunity. But with conerns inceasing still as to the problems of human and drugs trafficking into the EU from third countries and its threat to internal security only serves to push the issue of external border control into the spotlight once again.
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Ultimately, academic writing[25] has contemplated the responsibility of the EU to uphold it’s policy on human rights and it’s prevention of internal barriers to freedom of movement. But as inportant as thiese priniples may be in maintaining structure and authority the Community should also reconsider it’s position on a global scale when encountering the needs of asylum seekers at their external borders as well as those already residing with them without the claim of derived rights.
Footnotes
[2] Peers, S. Towards Equality: Actual and Potential Rights of Third Country Nationals in the Euroepan Union. (1996)
[3] Craig, P and De Búrca, G. EU Law: Text, Cases and Materials.
[7] Case 321/87 Commission v Belgium (1989) ECR 997
[10] Lavenex, S. Safe Third Countries: Extending the Eu Asylum and Immigration Policies to Central and Eastern Europe
[21] Lindahl, H. Finding a Place for Freedom, Security and Justice: The European Union’s claim to Territorial Unity. (2004)
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