Following the aligned approach to the regulation of migration in the early years of the Community and the differentiation triggered by the political momentum of the 1990s, the period reviewed in this part can be characterized as one of realization and paradoxes. This final period primarily engages with valid law. Secondary law on migrants’ rights was amended for EU migrants and adopted for TCN migrants during this time. The analysis first identifies the ultimate balancing of economic and social objectives behind the limitation of rights of EU migrants as a manifestation of a sustainable migration framework. Second, the investigation reveals the central role of economic considerations in the regulation of migration from third countries. It also suggests that national contestation and the lack of long-term considerations in the Council are among the reasons why the regulation of migration for TCNs cannot serve economic and social sustainability. Finally, concluding the historical analysis of the regulation of migration which started in Part I, this part reveals the paradoxes and tensions that arise from the way in which economic and social objectives are pursued through EU migration law. In so doing, it paves the way for the concluding remarks that will be made in Chapter 10 on the limits and potentials of an EU sustainable migration.
The period under review began with the failure of the Constitutional Treaty signed in 2004, which left unfulfilled the political promises of transformation of the EU into a fully fledged polity. The Lisbon Treaty subsequently incorporated most of the changes suggested in the text of the Constitutional Treaty and gave binding force to the Charter. During the same period, the EU was up against many challenges, both internal – like the unprecedented enlargement of the new millennium, the economic crisis that hit the Member States shortly after the Monetary Union was put in place and Brexit – and external – political unrest and displacement in the European neighbourhood, the COVID-19 pandemic, climate deterioration, and, most recently, a war on the EU’s borders.
These challenges have brought to the forefront the question of if and how the EU can maintain its aspiration for growth by relying on the human potential available in the best possible way. At times of economic and social tensions, this led to questioning the extensive protection of EU migrants’ rights. How could unlimited social rights be sustainable in a system of diverse interdependent economies which are under stress? At the same time, the ageing EU population is a stark reality, pointing to the inability of the current and projected demographics to support economic growth in the long run. Admitting a TCN workforce into the EU and enabling its mobility have, thus, become necessary. However, diverse political challenges, also linked to national unemployment, have strengthened populist dynamics on the ground, precluding the easy acceptance of admission of TCNs by national electorates. Moreover, criticism is prevalent in the scholarly output of this period.Footnote 1 Different reasons drive these criticisms: primary law is no longer used by the Court to support extensive interpretations of individual rights; integration through law has reached its limits, and scholars call for more room for political debate of EU policies; and spaces of liminal legality are created in areas where EU law does not – willingly or unwillingly – reach.Footnote 2
In response to these concerns, the part develops as follows. Chapter 8 begins with an investigation of the 2004 enlargement and, subsequently, it examines the way in which the tension between economic and social objectives was resolved regarding the rights of EU migrants. In the relevant analysis, it is argued that the economic considerations conditioning EU migrants’ rights and their balancing against extensive social rights frame the free movement framework as a sustainable migration framework. Following, Chapter 9 analyses the framework regulating migration from third countries and reveals the extensive attribution of rights to those TCN migrants who are considered crucial for the EU development project. Next to the legislative framework, the examination of the case-law highlights the consolidation of social objectives by an emphasis on Charter rights. The investigation further shows the complete elimination of migrants’ rights from Agreements concluded by the EU with third countries and the emphasis on operational cooperation to deflect migration, often without the use of any binding instruments, which has been extensively criticized in legal scholarship.Footnote 3 At the same time, though, having a system in place which guarantees rights for all legally resident TCNs means that no migrant is excluded from protection – or at least not those who physically make it to the EU.
8.1 Enlargement Limiting the Reach of Law in Order to Safeguard the EU
This chapter demonstrates that the current free movement framework is a manifestation of sustainable migration, where economic and social sustainability considerations dictate the attribution, limitation, or extension of rights of EU migrants. To show this, the analysis begins with an investigation of the 2004 enlargement, one of the most complicated enlargement processes which involved the accession of various states with diverse economies. The differentiation of clauses and transitional periods, compared to previous Accession Treaties, brings to the forefront the way economic considerations dictate the attribution of rights to soon-to-be EU migrants. The relevant section draws attention to the limitation of rights for nationals of the Central and Eastern European Countries (CEECs) in contrast to the full attribution of rights to nationals of acceding states who were not thought of as posing risks to the economic sustainability of the EU. And so, it highlights the legal tools devised to ensure sustainability of migration in the framework of accession. Following, Section 8.2 presents the current framework regulating free movement and suggests that its legal design should be understood as the most contemporary and elaborate manifestation of sustainable migration in law.
The massive enlargement of the EU during the new millennium had been progressively prepared since the 1990s to ensure that acceding states would not pose challenges to the EU project of growth. Eventually, accession took place via the Accession Treaties signed with the Czech Republic, Estonia, Latvia, Lithuania, Hungary, Poland, Slovenia, Slovakia, Malta, and Cyprus in 2003; Romania and Bulgaria in 2005; and Croatia in 2012. While the enlargement had the political significance of reuniting Europe, the drastic increase of EU population due to this accession was perceived as a risk, because the EU was struggling with internal unemployment, restrained growth, and an ageing society.Footnote 1 The most complicated transitional regime was thus put in place to avert risks. At the same time, the accession process put a lot of focus not only on growth aspects (unlike the previous enlargements), but also on the social advancement demanded from the candidate states and their obligation to equally support the European social model put in place by that stage.Footnote 2
Overall, the process of enlargement stretched over more than a decade, beginning with the Europe Agreements reviewed in Chapter 7 for the CEECs, and the Stabilisation and Association Pact in the case of Croatia. The negotiations emphasized the economic and social considerations behind the regulation of labour migration from the candidate countries in different ways.Footnote 3 First, there was a fear of migration flows due to the difference in development levels between the candidate countries and the EU.Footnote 4 This was linked to the effects of migration for social and economic development more broadly, and the potential of adverse effects to the EU labour market.Footnote 5 Anticipated migration flows were discussed in comparison with the south enlargement, where similar fears of uncontrolled migration existed – but these in fact never materialized.Footnote 6 During the time of negotiation, many academic studies were examined by the Commission in order to explore the migration potential of these enlargements, but there were no conclusive indicators on anticipated migration.Footnote 7 The anticipation of migration flows was expressed as a pressing concern due to high levels of unemployment in the Member States.Footnote 8 In this context, a potential collapse of national employment markets could arise as (a) migrants from acceding states, who were more skilled, could take up employment, and no jobs would be left for the unskilled workers in Member States, and (b) migrants from the acceding states could take up work for lower wages and with more flexible arrangements, disrupting the potential of national workers to find work.Footnote 9
Second, candidate countries and their labour force were considered to pose risks for the EU due to their social model.Footnote 10 Following the fall of communism and with the fast-track transition to market economy, the candidate countries had not managed to put in place a framework that could ensure social protection at work at levels similar to those offered by the EU, where social policy covered a broad range of subjects from living and working conditions, health and safety at work, equal opportunities, dialogue between social partners and social protection, among others.Footnote 11 This meant that the costs of the industrial sector, were they to use labour force from the candidate countries, would be extremely low, which could lead to distortion of competition and social dumping.Footnote 12 For this reason, for the first time in accession negotiations, we see an emphasis by the Commission on the full incorporation of the European social model in the candidate states, a model which, according to the Commission, is characterized by a balance between social justice and economic efficiency.Footnote 13
Finally, the need for sustainable development of the acceding countries was also set in light of their emigration patterns.Footnote 14 There was a constant pressure on the candidate countries to accelerate their development both economically and in terms of social standards to ensure that they keep their nationals in their territories.Footnote 15 This emphasis had a double face: one related to eliminating push factors for migration, and a second one related to making use of human resources needed to restructure their economies, which would eventually become part of the EU economy.Footnote 16 The issue of antagonism between the labour of migrants from the acceding states, and the TCN migrant labour and the potential effects for the EU external relations also appeared in marginal ways.Footnote 17
In this regard, transitional measures had to be put in place with due account of the different risks.Footnote 18 The Central and Eastern European enlargement had the potential to restore security in Europe, providing the basis for making the EU a global actor and enriching the internal market by, inter alia, human capital.Footnote 19 An immediate accession without specific safeguards could not guarantee the integration capacity of the EU or support its project of growth and progress. As a result, following the consideration of different options that could ensure a smooth transition, free movement of workers was regulated in the relevant Accession Treaties as follows.Footnote 20
Labour migration in the first two years following accession would take place subject to national measures or bilateral agreements. Member States would be allowed to extend this two-year period by three more years.Footnote 21 In case of serious disturbance to the labour market, Member States could maintain national measures for a total of seven years.Footnote 22 Nationals of the acceding states already employed at the date of accession for more than twelve months or accepted to a national labour market following accession for a period longer than twelve months would enjoy access to the labour market of that state.Footnote 23 What is more, labour migrants employed at the Member States during the transitional period would benefit from non-discrimination, as the application of Article 7 of Regulation 1612/68 was not subject to the transitional arrangements. At the same time, the transitional arrangements required that nationals of the acceding countries and their families should not be treated more restrictively than those of third countries working in that Member State.Footnote 24
The Accession Treaties also provided for the possibility to review the transitional provisions within two years following accession.Footnote 25 Considerable discretion was left to Member States as to how they would unilaterally regulate labour migration from the acceding states in the transitional period. Specifically, they were allowed to individually open their labour markets to the nationals of the acceding states two years after accession.Footnote 26 At the same time, such Member States would be allowed to go back to restrictions within the first seven years if they underwent or foresaw disturbances on their labour market which could threaten the living standards or employment levels in a particular region or occupation.Footnote 27 In such a case, the Commission would review the Member State’s request and decide on the extent to which the application of the relevant EU law provisions could be wholly or partially suspended. This type of resort to domestic law could ‘in urgent and exceptional cases’ take place by ex post notification.Footnote 28 What is more, where old Member States decided to suspend the application of free movement provisions, the acceding Member States were also protected insofar as they could restrict the application of free movement for migrant workers from all the other acceding Member States, to seal themselves from disturbances in their developing labour markets.Footnote 29
Rights of family members were regulated as follows. For migrants from acceding Member States who had already been employed in EU Member States for longer than twelve months, family members residing with them at the date of accession would have immediate access to the labour market of the specific state.Footnote 30 Family members who resided with the worker following accession and during the application of the transitional regime would have access to the Member State labour market after residence there for at least eighteen months, or from the third year following the date of accession.Footnote 31
Finally, Member States also addressed the issue of posted workers. Germany and Austria were allowed to limit the application of EU law and thereby the movement of posted workers to their national labour markets to address serious existing and threatened disturbances in specific service sectors.Footnote 32 These services or sectors were mentioned in detail for each of these countries. By a declaration, Germany and Austria expressed their understanding of the phrase ‘certain regions’ to potentially comprise of the entire national territory.Footnote 33 In general, during the period of transitional arrangements, Member States were required to ensure that no new restrictions to the rights of migrant workers would be introduced (standstill clause) and that they gave preference to workers from the acceding Member States over those who are nationals of third countries as regards access to the labour market.Footnote 34
Malta and Cyprus were not covered by these detailed arrangements. Instead, they joined immediately the free movement acquis. The higher economic and social development of these countries compared to the CEECs was the reason behind the immediate application of the free movement framework.Footnote 35 The stance of the Commission, as expressed in archival documents, is that Malta and Cyprus stood out from the rest of the candidate countries for three reasons: they did not share common borders with any Member States; the difference of wage levels between them and the Member States was not as marked; and the relevant research did not identify them as posing migration-related risks to the EU Member States most affected at the time (Germany and Austria).Footnote 36 For the same reasons, Malta was even allowed to unilaterally resort to procedures restricting the movement of EU workers to its territory for a period of seven years if it underwent or foresaw labour market disturbances that could seriously threaten the living standards or employment in a specific region or occupation.Footnote 37 A similar derogation on the application of free movement provisions was not envisaged for the EU Member States with respect to Maltese nationals. Likewise, the transitional arrangements on Cyprus provided for no restriction on the free movement of workers acquis.Footnote 38
Similarly to all the previous Accession Treaties, a general safeguard clause was incorporated allowing for the potential adoption of protective measures for three years after accession in case of difficulties related to the economic situation of the old and new Member States.Footnote 39 In addition to this, another clause was added which provided for similar measures where new Member States failed to enforce the commitments undertaken during the accession negotiations, thereby causing a serious breach or an imminent risk of such breach to the functioning of the internal market.Footnote 40
In the Accession Treaties of 2003 and 2005, Member States attached Declarations in recognition of the elements of ‘differentiation and flexibility that applied to the free movement of workers regime’.Footnote 41 They acknowledged their intention to grant increased access to the acceding states’ nationals under domestic law and to improve the employment opportunities in Member States upon accession. Finally, they declared their intention to ‘move as quickly as possible to the full application of the acquis in the area of free movement of workers’.Footnote 42 The overview of the main provisions of the Accession Treaties points to the extremely detailed temporal limitation of the rights of migrant workers and the more flexible review process on the transitional arrangements not only by the EU institutions but also by the Member States, which could unilaterally decide how to address labour migration from acceding states based on their national needs.
A feature of past accession processes was that workers-nationals of the acceding states, who had been already legally employed in the territory of the Member States, would immediately enjoy their rights as EU workers. This was because of the recognition that such migrants were already actively contributing to EU growth and could not cause disruptions to national labour markets. This feature was also differentiated in the Central and Eastern European enlargement. No longer was prior lawful economic activity enough: migrants employed in Member States prior to accession were required to show a more concrete tie to the labour market. They had to have already been connected to the EU market for a period of longer than a year to be able to enjoy a broader set of rights. This incrementality in the attribution of rights for already employed migrants from acceding states was established precisely to avoid economic risks at times of more limited labour demand, and thereby to ensure that the accession would not take place in a way that would make it unsustainable for the economic development of the EU.
8.2 The Free Movement Framework as a Sustainable Migration Framework
Chapter 5 presented the political aspirations of generalizing free movement rights for EU citizens and their reflection in the case-law, which broadened the protection of EU migrants in light of the primary law provisions. For some time, political scientists and legal scholars alike investigated primary law and its invocation in the case-law as a basis for the construction of a direct link between EU migrants qua citizens and the EU legal order.Footnote 43 In parallel, the Treaty provided that free movement rights of all citizens were to be exercised in accordance with the conditions and limitations of secondary law. The Commission thus issued a proposal for a Directive which would regulate the exercise of these rights in light of the legal and political environment created by the citizenship of the Union.Footnote 44
The proposal of the Commission suggested the extension of residence rights without any conditions for up to six months, the removal of conditions of differential treatment between EU migrants and Member State nationals after four years of residence, and the limitation of restrictions to family reunification.Footnote 45 These aspirations were watered down by the Council.Footnote 46 A closer investigation of the final text of Directive 2004/38, which now regulates these rights, as well as of the case-law of the Court, show that economic objectives dictate both the conditions and the limitations of the right to reside, the social rights enjoyed by EU migrants, as well as family reunification rights.Footnote 47 After reviewing how such objectives are reflected in secondary law in Section 8.2.1, Section 8.2.2 turns to the evolution of case-law, which, rather than ensuring more extensive protection via primary law, now accepts the balancing of economic and social objectives decided by the legislature. In Section 8.2.3 the more extensive protection of EU migrant workers as reflected in law and case-law is identified. Finally, Section 8.2.4 examines family reunification provisions and the way in which economic and social considerations affect their interpretation. The analysis reveals the centrality of economic and social considerations for the rights of EU migrants, showcasing the free movement framework as the perfect example of sustainable migration whereby migrants are attributed extensive social rights if they have an economic function, and these rights are limited precisely to ensure the economic sustainability of their movement.
8.2.1 Economic Preconditions of Legal Residence
An analysis of the provisions of Directive 2004/38 shows how economic objectives condition free movement rights. The Directive provides detailed conditions under which the right of free movement and residence should be exercised by EU migrants and their family members, their rights to permanent residence, and the limitations of such rights for public policy, public security, and public health reasons.
First, all EU migrants enjoy a right of residence for up to three months under Article 6 Directive 2004/38. This right is generally thought of as unlimited, owing to the special status of EU citizenship. Even this limited right to enter and reside in a Member State free from any administrative requirement is dependent on a negative condition, namely that EU migrants should not become an unreasonable burden on the social assistance system of the host state under Article 14(1) Directive 2004/38. Subsequently, if EU migrants wish to reside in a Member State for a period longer than three months, they need to comply with the conditions of Article 7 Directive 2004/38. Recital 9 of the Directive suggests that Member States may allow more favourable treatment to jobseekers; however, there are no more specific provisions on this in the text of the Directive.
A closer look at Article 7 Directive 2004/38 points to the economic considerations conditioning the security of residence of EU migrants in a Member State. Specifically, residence over three months is guaranteed only for EU migrants who cannot pose a risk to the economy of Member States. Residence is guaranteed for workers, self-employed persons, and their family members. Where EU migrants are not engaged in economic activity, their security of residence is dependent on them having sufficient resources and comprehensive health insurance.Footnote 48 Economic activity, or, at the very least, self-sufficiency, functions as a guarantee that they will positively contribute or, at least, that they will not negatively affect the economies of the Member States. The primary law guarantee of movement and residence derived from the EU citizen status is conditioned by the EU legislature to align free movement under the Directive with the Treaty objectives of growth and progress.
Directive 2004/38 allows some leeway for economic inactivity, but this is clearly delimited. Under Article 7(3), EU migrants can retain the status of worker or self-employed, and hence security of residence, if they are temporarily unable to work due to illness or accident, and if they are in duly recorded involuntary unemployment after having been employed for more than one year and have registered as jobseekers.Footnote 49 In case of involuntary unemployment after less than a year of employment they must have registered as jobseekers. In this case, EU migrants maintain the status of worker for no less than six months if they pursue vocational training. However, the retention of the worker status presupposes that the training is related to their previous employment, unless they have become voluntarily unemployed.
The intimate connection of security of residence to economic considerations appears under Article 14 Directive 2004/38 on the retention of the right of residence. According to it, EU migrants and their family members can retain the right to reside as long as they do not become an unreasonable burden on the social assistance system of the host state. Incorporating the considerations of the case-law, Article 14(3) provides that expulsion should not come as an automatic consequence of recourse to social assistance.Footnote 50 This means that Member States can remove EU migrants if they consider that such migrants negatively affect their economies, but to do so, they need to comply with the principle of proportionality and to take into account various considerations.Footnote 51
Security of residence becomes decoupled from economic considerations after five years of residence in a host state. That is when EU migrants can access permanent residence under Article 16 Directive 2004/38.Footnote 52 Under Recital 17, this right is attributed with a view to contributing to the social objectives of the EU by strengthening social cohesion. Finally, Article 24, which provides for equal treatment of EU migrants and their family members, allows for derogation. Article 24(2) provides that Member States have no obligation to grant equal access to social assistance during the first three months of residence or to migrants who entered as jobseekers. The same provision allows Member States to restrict equal treatment regarding maintenance aid for studies to economically active migrants and their families and to only allow such aid to economically inactive migrants after the acquisition of a right of permanent residence.
Despite these safeguards, which were put in place to avert the potential economic repercussions of unlimited free movement rights, Member States have time and again voiced their concerns on how the provisions of the Directive set the scene for ‘benefit tourism’.Footnote 53 The Commission has communicated to Member States that the limitations in place ensure the proper functioning of the system, stressing that economically inactive citizens and people who enter as jobseekers are excluded from social assistance to begin with.Footnote 54 Social assistance is granted to people whose income falls below a specific threshold, and they require support by states to meet a life in dignity. EU migrants who enjoy a right to reside in Member States do so under the condition of sufficient resources (either via employment or through proof of self-sufficiency) anyway, which would mean that their income must be higher than that under which social assistance is granted. Thus, they cannot pose a risk to public finances.
Overall, Directive 2004/38 operationalizes free movement rights for EU migrants under specific limitations and conditions as provided by Article 21(1) TFEU. The rights granted to EU migrants and the limitations thereto to protect national economies express a balancing between economic and social objectives so as to guarantee that migration is sustainable in the long-term, and that public finances are not affected by unlimited EU migration. The limitations regarding economically inactive and not self-sufficient EU migrants condition both the right to reside and access to social rights. This is not a surprise. Secondary law has always imposed such conditions on the rights of EU migrants. Nevertheless, equal treatment is provided not only under the Directive, but also under primary law, which was extensively used by the Court to extend both social and residence rights beyond the limits of secondary law during the 1990s and early 2000s, as discussed in Chapter 5. Section 8.2.2 examines the case-law and shows how the tension between primary law and the limitations set by secondary law under Directive 2004/38 were dealt by the Court during this period.
8.2.2 Legal Residence under EU Law as a Condition of Social Rights
Section 8.2.1 has shown how economic considerations underlie the rights of EU migrants in two ways. First, they appear behind the conditions of access to residence rights for a period longer than three months, and, second, they exist as a limitation behind the attribution of equal treatment rights for those not fulfilling the conditions of Article 7 Directive 2004/38. In this section I investigate how the Court has engaged with the balancing, opted for by the EU legislator, behind the need to promote EU citizen status, and the limitation of the rights of EU migrants so that they do not adversely affect the EU project of growth.
One of the first cases issued under the new framework was Brey, which concerned the residence rights of a German pensioner who claimed a compensatory supplement provided for under Austrian legislation to supplement his German pension.Footnote 55 The Court followed the wording and purpose of the Directive 2004/38 and confirmed that lawful residence was dependent on the self-sufficiency of an EU migrant. It emphasized that freedom of movement was the rule, and the conditions set for it under the Directive should be interpreted strictly and in line with proportionality, in order to assess whether the grant of social security benefits to an individual might burden the social assistance system of the Member State as a whole.Footnote 56 In that case the Court suggested that the proportionality assessment should take place with reference to the personal circumstances of the applicant and on a case-by-case basis. Jesse and Carter call this the ‘swansong’ of the Court’s qualitative approach, examined in Chapter 5.Footnote 57
Subsequently, Dano, where the Court religiously followed the conditions prescribed by Directive 2004/38, came out with a bang.Footnote 58 In this case, the Court held that access to social benefits under equal treatment presupposed not lawful residence of any kind, but lawful residence in accordance with the conditions of the Directive.Footnote 59 By setting these conditions, the EU legislature aimed at preventing the movement of people who could pose risks to the social assistance system of the Member States.Footnote 60 According to the Court, if EU migrants do not comply with the conditions of the Directive on residence rights, they may not claim equal treatment under EU primary law, as this would run contrary to the objective of secondary law, ‘namely preventing Union citizens who are nationals of other Member States from becoming an unreasonable burden on the social assistance system of the host Member State’.Footnote 61 The Court also suggested that by setting these conditions, Article 7(1)(b) Directive 2004/38 sought to prevent economically inactive EU migrants from using the host states’ welfare system as means to fund their subsistence.Footnote 62
This approach was confirmed in Alimanovic and later in García-Nieto, which concerned access to benefits during the first three-month period of unconditional residence.Footnote 63 The Court confirmed that only residence that complied with the conditions set by the Directive qualified for equal treatment, and not any kind of lawful residence. As put by AG Wathelet in García-Nieto, such an interpretation is consistent with the objective of the Directive to maintain the ‘financial equilibrium of the social security system of the Member States’ and to decide otherwise ‘could result in relocation en masse liable to create an unreasonable burden on national social security systems’.Footnote 64
The economic conditioning of a right to reside as a basis of equal treatment was confirmed more clearly in Commission v the UK.Footnote 65 The case concerned a UK law which required the existence of EU residence rights as a condition to access child benefit. The UK would essentially screen applicants who claimed this benefit and then expel them if they did not meet the conditions of Directive 2004/38 regarding residence in the UK. The Court confirmed its finding in Brey and Dano and linked these to Bidar and Grzelczyk. While acknowledging that the requirement of legal residence under EU law constituted indirect discrimination, the Court found this justified.Footnote 66 Specifically, it held that such limitations were in line with EU law and could achieve the legitimate objective of protecting public finances.Footnote 67
One could suggest that the system in place is remedied in light of the guarantees of equal treatment after five years of residence, which prove integration and extend the rights of EU migrants in the host state in light of social considerations. Nevertheless, a look at the case-law of the Court on permanent residence creates room for more problematization. In Ziolkowski & Szeja, the Court engaged with the right to permanent residence of Polish nationals during the transitional period of the Accession Treaties.Footnote 68 The Polish nationals in that case had legal residence in Germany on the basis of humanitarian grounds. The Court held that the applicants could indeed access permanent residence under Directive 2004/38, since there were no transitional arrangements regarding this. However, it also held that, to qualify for permanent residence under the Directive, one had to have legal residence that satisfied the conditions of the Directive.Footnote 69 This means that an EU migrant needs to be self-sufficient and to not pose a burden to the welfare system of the Member State, if they are to qualify for permanent residence under EU law. The length of residence is not the only qualifying factor, and social ties in a Member State are not a sufficient factor either. Economic conditions of having proven worthy, or not having adversely impacted the economy of the host state, are also attached to this status. As the applicants enjoyed legal residence on humanitarian grounds, this did not presuppose their self-sufficiency and, hence, they were excluded from the scope of the Directive.
Muir has referred to this case-law development as ‘deconstitutionalization’.Footnote 70 By looking at the Treaty provisions on citizen’s rights, Muir suggested that Article 21 TFEU functioned both as a benchmark against which the activities of EU and national authorities could be reviewed and as a legal basis for the adoption of further legislation.Footnote 71 Indeed as she showed, this double function is not uncommon in EU law and in the field of citizen’s rights where ‘the process by which political institutions have thought to circumscribe EU intervention may be reviewed against the very primary right that the legislation is intended to shape’.Footnote 72 Muir has rightly pointed out that the Court’s view on primary law ‘more ostensibly competes with those expressed by political authorities’.Footnote 73 Having these in mind, Muir looked at how the Court shifted its attention from the rights enshrined in primary law to the rights provided in secondary law, and suggested that this ‘deconstitutionalization’ allowed more space for political dialogue.Footnote 74 Thym has also referred to the evolution presented in this section as a stark reminder of the limits of integration through law.Footnote 75
Looking at these evolutions in light of the demand for economic and social sustainability driving the development of EU law, the following could be added. Before the adoption of secondary law implementing the free movement rights of EU citizens, the Court emphasized the primary law objective of creating an ever-closer Union of the peoples of Europe. It used this political aspiration as a means to review secondary law in place, and to disconnect the economic limitations of the secondary law adopted in the 1990s from the social and political considerations of EU citizenship status inserted in the Maastricht Treaty. After the legislator balanced the different economic and social objectives and gave them concrete expression in Directive 2004/38, the Court refrained from using the broader framing of primary law as means to review secondary law. Rather, it restricted its interpretation by confirming the balancing between economic and social considerations chosen by the EU legislature. Taking a different approach would have made the system of free movement unsustainable. As Nic Shuibhne has also suggested, the aspiration of the greatest possible freedom might be legitimate, but it does not allow for sustainability of free movement rights under the current framework.Footnote 76 Having presented the evolution of judicial interpretation, Section 8.3.3 explores how the current framework still privileges the social rights of EU migrant workers, as they are the ones contributing to the project, and differentiates their treatment from that of economically inactive EU citizens.
8.2.3 The Differentiated Status of Workers and Jobseekers
Despite the aim of the Directive 2004/38 to harmonize the conditions of residence for all EU citizens, the treatment of economically active EU migrants is differentiated both by exceptions applicable to them in the Directive and through the parallel existence of other instruments granting them rights.
First, in the Directive, there are exceptions that allow more privileged access to permanent residence to workers, self-employed persons, and their family members under Article 17. Under Recital 19 Directive 2004/38, the differentiated rights of economically active migrants are based on Regulation 1251/70 and Directive 75/34 and have been maintained as acquired rights.Footnote 77 What is more, workers, self-employed, and the members of their families enjoy full equal treatment rights and do not fall under the derogation of Article 24(2) Directive 2004/38. Further, under Article 14(4) Directive 2004/38, workers, first time jobseekers, and members of their families can in no case be expelled for economic reasons. Specifically, this Article provides that expulsion may in no case be adopted against economically active migrants, or EU migrants who entered the territory to seek employment. Such an expulsion would go against the long-standing right of EU migrants to move to take up work. Article 14(4)(b) provides, however, that the individuals need to be able to prove that they are indeed seeking employment, and that they have a genuine chance of being employed. In short, the claim of job-seeking is not sufficient of its own.
The differentiation in this, and the broader attribution of rights under Directive 2004/38, lies in the presumption that workers, by virtue of their status, cannot become a burden, but will rather be net contributors to the system. What is more, even if workers are entitled to equal treatment under Article 24, the chances are that they will never overburden national welfare systems, as they could be excluded from it for other reasons. Specifically, social assistance is usually aimed at supporting persons through mechanisms of solidarity so that they can have a decent livelihood. Workers and self-employed individuals would most probably be excluded on the basis of their finances, as they would have sufficient resources to ensure their livelihood without the need of state support.
In parallel to this, the Commission codified Regulation 1612/68 in line of the amendments it had undergone. Without creating new rights compared to the 1968 framework, free movement of workers is now regulated under Regulation 492/2011, which provides for a broader application of equal treatment under Article 7 in line with the broad interpretation of the concept of social and tax advantages in the Court’s case-law.Footnote 78 Family reunification rights of workers are no longer regulated by this instrument, but rather fall under Directive 2004/38. Nevertheless, in Article 10, the Regulation maintains the rights of children of workers and former workers to access education or vocational training under equal conditions to Member States nationals. Even after moving the conditions of family reunification to Directive 2004/38, the Regulation still provides for differentiated treatment not only to workers themselves but also, most importantly, to former workers and their family members.
The Court had already acknowledged the complicated link between the rights of residence of family members of workers and the rights of residence of former workers via their family members. Early on, the Court held that children of workers derived a right of residence from Article 12 Regulation 1612/68 to be able to access education in the host state.Footnote 79 This derived right of residence becomes autonomous when the parent loses the status of worker, in order to ensure that the child can continue their education.Footnote 80 The reasoning is that a worker who wants to move should not be exposed to the risk that if they lose their worker status, this would lead to the disruption of their children’s education. A need to promote mobility, and thereby growth, is thus tied to an extended consideration of the importance of the protection of workers’ children and their access to education.
In Baumbast, analysed in Chapter 5, the Court held that where a child enjoys a residence right to access education under Regulation 1612/68, this right can create residence rights for their primary carer.Footnote 81 Essentially, the loss of the status of worker by an EU migrant parent has no effect on the right of residence of their children. In subsequent case-law, the residence of the children of former workers created the basis for residence of their EU migrant parent. In Ibrahim, the Court confirmed Baumbast. Most importantly, it stated that EU migrants who are parents of children who had a residence right based on Regulation 492/2011 could enjoy a derived right of residence from their children without the need to satisfy the conditions of Directive 2004/38, that is, without the need to have sufficient resources and health insurance.Footnote 82 The existence of a worker status in the family at some point in time trumps the need to prove self-sufficiency to enjoy residence rights. The differentiation is based on a different function served by free movement of workers and free movement of citizens. Free movement of workers develops by extensive interpretations to promote mobility and, thereby, growth. The rights enjoyed by workers are based on the objective of creating the best possible condition for the integration of family members of people on the move.Footnote 83 Free movement of citizens develops with clearly construed limitations in secondary law to minimize the negative impacts of movement on national economies. The limitation of rights under the relevant Directive is based on the objective of maintaining the financial equilibrium of the Member States.Footnote 84
This extensive protection of residence rights lies behind the more extensive application of equal treatment in access to social assistance for former workers. In JD, the Court held that parents of children who enjoyed a right of residence under Regulation 492/2011 should have access to social assistance under the more favourable conditions of Article 7(2) of Regulation 492/2011 and should not be covered by the derogation of Article 24(2) Directive 2004/38.Footnote 85 JD was a worker in Germany, where his daughters were attending school by virtue of Regulation 492/2011. Due to disruptions in his work, JD received social protection benefits for a period of nine months (subsidiary unemployment benefits and subsistence benefits for daughters), which were discontinued. Due to the length of the period during which JD was unemployed, the German authorities deemed that he could no longer retain the status of a worker, but he was rather considered a jobseeker. His right of residence at that stage was derived from the fact that his daughters were attending school by virtue of Regulation 492/2011. So, the national court wondered how the derogations from equal treatment, which were meant to apply to jobseekers under Directive 2004/38, should apply to persons who had the right of residence under Article 10 Regulation 492/2011, and who could no longer be considered workers.
As AG Pitruzzella mentioned in his Opinion, this case demanded that the Court clarify the limits of social solidarity.Footnote 86 And it did so by reference to the different objectives of free movement of workers and free movement of persons. In light of the objective of Directive 2004/38, the limitation to equal treatment is established as a means to minimize the negative economic impact of attribution of rights to migrants. In the case at hand, the Court held that there was an ‘appreciable distinction’ to be made between a EU migrant who worked in a Member State and had children in school there and then became unemployed (residence under Article 10 Regulation 492/2011), an EU migrant who resided in a Member State for less than three months (residence under Article 6(1) Directive 2004/38),Footnote 87 and an EU migrant who resided in a Member State as a first-time jobseeker (residence under Article 14(4) Directive 2004/38).Footnote 88 The latter two categories were those excluded from equal treatment in social assistance under Article 24(2) of the Directive 2004/38. The appreciable distinction which the Court mentioned essentially refers to the fact that an EU migrant has worked and contributed to growth in the first scenario. Due to this, their subsequent unemployment, together with the fact of having children in the host Member State, means that their claim to equal treatment should be accepted, as it would not adversely affect the economy of Member States.
What is more, in Chief Appeals Officer and Others, the Court drew a clear line between the permissible limitations to free movement of persons and free movement of workers.Footnote 89 In this case, which concerned social assistance for family members of EU migrant workers, the Court clarified that the unreasonable burden argument can justify limitations in the context of free movement of persons, but not in the context of free movement of workers. To justify this, the Court reminded that EU migrant workers personally contribute to the financing of the social policies followed by Member States by paying taxes and, due to this, they should be able to profit for social rights under the same conditions that national workers do.Footnote 90
The analysis herein shows that both secondary law and case-law acknowledge a clear link between the economic contribution of an EU migrant and the more extensive social rights they are entitled to. The economic function of the migrant is once more the source of more extensive social rights, as has been the case from the early years of Community law. The connection between economic objectives served by migrant labour and the social safeguards that should guide the economic development reflects the way economic and social sustainability shapes EU migrants’ rights. Section 8.2.4 will investigate how this connection appears in the regulation of family reunification for EU migrants.
8.2.4 The Case of Family Reunification: Social Objectives Furthering the Reach of EU Law within Defined Limits
Directive 2004/38 regulates family reunification for EU migrants. Family members mentioned in Article 2 are entitled to accompany or join the EU migrant in the host state and have a right to work there under Article 23. The Directive protects the rights of family members not in light of a functionalist narrative, but rather in connection to an aspiration to preserve family unity under the Charter.Footnote 91 Article 3 also mentions a wider group of family members whose reunification should be facilitated by Member States. The scope of family members falling under the Directive and the conditions of family reunification are considerably more extensive than the family reunification rights of legally resident TCNs under the Family Reunification Directive. However, this does not mean that the framework in place is completely stripped of economic considerations acting as a limit to migrants’ rights.
First, the way family reunification rights are enjoyed by EU migrants is differentiated based on their economic function. EU workers or self-employed persons are not subject to conditions on income or housing as a precondition for reunification. This is not the case for students, pensioners, and self-sufficient EU migrants, who need to prove they have sufficient resources and comprehensive insurance. When it comes to family reunification for students, the circle of family members that can claim a right to family reunification is more limited.Footnote 92 In addition, as in the case of workers, permanent residence can be acquired under more favourable conditions for family members of EU migrants who contribute as workers or self-employed.Footnote 93 Aside from the legal regulation of the matter, the Court has engaged with the rights of EU migrants to family reunification in a significant amount of case-law which highlights the way economic and social objectives persist behind the attribution of rights. Section 8.2.4.1 examines the persistence of economic movement as a precondition for the rights of circular migrants, while Section 8.2.4.2 investigates the social orientation of the case-law behind the protection of the rights of EU children.
8.2.4.1 The Impossibility of Disconnecting Economic Considerations from the Rights of Circular Migrants
Economic objectives served by family reunification rights were apparent in the historical development of the EU legal framework analysed in Chapter 2. Social objectives are achieved by the extensive reach of EU law. The importance of attributing family reunification rights to EU migrants lies not so much in them being accompanied by their family members in a host state, but rather in the fact that they can claim such rights upon return to their state of origin. The link between an EU migrant and EU law, created by virtue of the migrant’s contribution to growth, is strong enough to break the restrictions imposed by national law to its own nationals.
The case-law of the Court safeguarded the rights of EU migrants to be joined or accompanied by their family members in light of the need to guarantee that workers moved in liberty and dignity, and could thus be integrated in the host state.Footnote 94 The Court saw family life as a necessary precondition for promoting the living standards and social cohesion within Member States. Having established such rights in secondary law and having fortified them in the case-law, the Court used the functional imperative of free movement to promote the rights of EU migrants in their home state. In Singh, the Court held that the extension of the reach of EU law to trump national restrictions was necessary in order to remove obstacles to the free movement of workers.Footnote 95 The formula is classic. An EU migrant would be deterred from leaving their country of origin and pursue economic activity if they knew that, upon return, their family members could not join them under conditions at least equivalent to those which they would normally enjoy in the host state.Footnote 96 The privileged treatment of returning EU migrants was linked with the abolition of obstacles to free movement, which was necessary for the promotion of the objectives of the Treaty.Footnote 97 Against this backdrop, EU law demanded the application of secondary law on family reunification rights when EU migrants returned to their home state. In Eind, the Court further held that there was no need for the migrant to continue the pursuit of economic activities upon return to their home state.Footnote 98 Such a requirement would run counter to the objectives of EU law to ensure that nationals of Member States took up work abroad. What is more, the personal motivation of the migrant to move to another Member State is irrelevant. The extended protection of EU law is not dependent on whether EU migrants moved to take up work or to circumvent national migration law, as long as they genuinely engaged in economic activity abroad.Footnote 99
Following the adoption of Directive 2004/38, the reasoning of the Court shifted. It no longer emphasized the need to guarantee the specific free movement of economic actors, but rather focused on the aim of strengthening the rights of free movement and residence of all EU migrants regardless of whether they were net contributors.Footnote 100 In this context the Court mentioned the need to abolish obstacles to free movement of all persons under Article 3(1)(c) EC Treaty rather than on the specific functional imperatives of the free movement provisions.Footnote 101 The Court further stated that free movement for EU citizens implies the right to leave one’s Member State of nationality and to become established in another Member State under the same conditions.Footnote 102
But does this imply the elimination of economic considerations from the mix? A literal reading of the Court’s case-law would require an unconditional right for EU migrants to establish themselves across the EU, and it would demand the elimination of economic objectives served by such move. It would further demand the more extensive protection of EU law applicable to all EU migrants, regardless of whether their move served economic ends or not. This, however, is not the case. The Court has held that if EU migrants wanted to claim the privileged treatment of Directive 2004/38 against their home country upon return, their movement would need to be in line with the conditions of Article 7 of the Directive.Footnote 103 Only if they have established themselves under conditions of self-sufficiency or economic contribution can they enjoy such rights and circumvent national limitations. As discussed earlier, this would require a type of movement that, even without contributing to growth, at the very least does not hinder it. This means that as a minimum, EU migrants would have to be self-sufficient in the host state. Scholars have discussed how this is not a condition that can be met by all EU migrants, leading to exclusion from protection for those who could pose risk to the growth project.Footnote 104 This implication is actually the consequence of shaping migrants’ rights with due regard to economic and social sustainability.
8.2.4.2 The Social Orientation behind the Extensive Rights of Union Children
The emphasis on the safeguarding Member States’ economies is not reproduced with the same force in the case-law on family reunification rights for EU children. In a series of cases concerning residence rights for TCN parents of minor children with EU nationality, the Court has used the citizenship provisions as a basis of extending the rights of their migrant parents. This is, perhaps, the only type of case-law where social considerations regarding the protection of children are capable of significantly extending the rights of TCNs. Even in this socially oriented case-law, economy enters the mix through the requirement that the TCN parent needs to be able to provide sufficient resources to enjoy residence rights.
The residence rights of TCN parents of EU children are judicially constructed by reference to primary law, as they fall outside the scope of Directive 2004/38. Directive 2004/38 provides for family reunification of dependent relatives in the ascending line. In the cases examined by the Court on this matter, it was not the TCN parents who were dependent on the EU children, but vice versa. This did not stop the Court from establishing residence rights by reference to Union citizenship and the need of genuine enjoyment of the substance of rights conferred by Article 20 TFEU.Footnote 105 The genuine enjoyment of Union citizenship rights is linked to respect for family life under Article 7 CFR and the obligation to take into account the best interests of the child under Article 24(2) CFR. This emphasis on rights is not sufficient to take away any economic guarantees underlying the residence rights of EU children and their TCN parents. Rather, the legality of residence of the child is based on a combination of Article 21 TFEU and Directive 2004/38, which has been interpreted to mean that the sufficiency of resources is considered by reference to the resources of the TCN parent.Footnote 106 The ultimate limit to residence under a combination of Article 21 and Directive 2004/38 is that the TCN parent must be able to fulfil the conditions of Article 7 of Directive 2004/38 in all cases.Footnote 107 If this is not possible because the parent cannot prove sufficient resources and comprehensive sickness insurance, then in extreme cases a right to reside could be based on Article 20 TFEU, but that would only be the case if the Union child had to leave the territory of the EU altogether because of the impossibility of granting a residence right to their TCN parent.Footnote 108
A case which highlighted the tension of economic and social considerations behind the attribution of rights to TCN parents of Union children was Bajratari.Footnote 109 In that case, the children’s sufficiency of resources was based on income obtained from unlawful employment, as the parents had lost their residence permit. The Court had to engage with how to achieve the balance between the social and economic objectives pursued by Directive 2004/38 – more specifically, the objective of strengthening the rights of Union citizens to move and reside freely in the Member States and promoting social cohesion on the one hand, while protecting the public finances of the Member State on the other.Footnote 110 In his Opinion, AG Szpunar elaborated on the reason why the sufficiency of resources was evaluated with regard to the parent rather than the child in line with the case-law in Chen and Zambrano and noted that ‘if they were adults, such children would have not only Union citizenship, which is destined to be the fundamental status of nationals of the Member States, but also the status of worker’.Footnote 111 In this Opinion, issued in 2019, nearly thirty years after the establishment of EU citizenship, this excerpt is a stark reminder of what links EU migrants to the EU legal order. It could be argued that reference to the worker status is made in support of the fact that as an adult, an EU national would have the opportunity to exercise their rights by fulfilling the conditions of Article 7 Directive 2004/38. But this is certainly not the case, as those conditions could be fulfilled by an adult as a worker, a self-employed, a student, or a self-sufficient person. What the aforementioned quote emphasizes is that the rupture of the link between the EU migrant and their state of origin, and, relatedly, the basis of claims made against that host state is to a large extent due to financial solidarity owed by Member States to EU migrants based on their economic contribution.
The Court followed the AG Opinion and explained the way the balancing took place by implying that such an evaluation was the lesser of two evils. Specifically, the Court recalled that the resources available to EU children would always be evaluated with reference to the income of their parents. However, when the parent is in a precarious situation due to unlawful residence, the risk of losing the sufficient resources required and of the Union child becoming a burden on the social assistance system would be greater.Footnote 112 While on first reading, the exclusion of income from unlawful employment could achieve the objective of protecting public finances, this objective is already ensured by the safeguards provided in Article 14 Directive 2004/38, which allows Member States to check if the conditions of the Directive are fulfilled throughout the period of residence.Footnote 113 In light of this, introducing a condition regarding the lawfulness of income of the parent was found to constitute a disproportionate interference, which went beyond what is necessary to achieve the objective pursued.Footnote 114
The more protective approach of the Court regarding children has been linked in scholarship with the fortification of the status of EU citizenship or with a recognition of children as actors in their own right and not as appendices to economic actors.Footnote 115 I would argue that while the latter might be true, the derivative rights of parents of EU children should not be understood as transforming the basis of free movement rights and disentangling them from effective market contribution. Similar arguments have failed with regard to the claims of EU nationals who have never left their state of origin and their partners. Already since McCarthy and Dereci, the Court insisted on the necessity of movement meeting the conditions of Directive 2004/38 to be able to claim family reunification rights under EU law.Footnote 116 Arguments on the dependency of adult EU nationals to a TCN as a basis for claiming the more protective treatment of EU law have not succeeded. Instead, the Court has insisted that a relationship of dependency – one that would be so strong to create a right of residence under Article 20 TFEU and the effective enjoyment of rights test – would be conceivable only in exceptional cases where there could be no form of separation imaginable between the EU national and the member of their family on which they were dependent.Footnote 117 Emotional ties would not be enough. The differentiation should thus be understood in line with the greater vulnerability of children whose interests fall to be protected by societies at large in line with the need to promote the social objectives of the EU. The consistent invocation of Article 24 CFR in the relevant case-law would support that.
8.2.5 Consolidation of Balancing and No More Attempts to Tip the Scale
Different scholars have commented with great disappointment the different judicial evolutions of this period which point to the continued economic basis of the rights EU migrants enjoy from EU law.Footnote 118 Ultimately, the economic limitations set to the exercise of EU migrants’ rights under secondary law, and the hesitation of the Court to review them for compliance with primary law proves the strong economic basis of EU free movement rights. At the same time, if we look at this evolution having in mind both how the EU legal order created rights for migrants and that economic and social objectives sit at the core of this legal order, a more nuanced explanation could arise. This explanation would have as a starting point the impossibility of maintaining economic growth and social progress, by the creation of unlimited residence rights and corresponding social rights for all EU migrants. If the EU legal order is to deliver on the parallel pursuit of economic and social objectives, then the balance could not be tipped in favour of unlimited social rights for EU migrants. In other words, sustainability under EU law demands the economic and social sustainability of EU migrants’ rights.
During this period, the legislative evolution by the adoption of Directive 2004/38 showed the intention to create residence rights for all EU migrants in light of the ever-closer Union of peoples. However, such rights meet an ultimate limit of self-sufficiency. It is accepted that EU migrants should be able to enjoy rights, even if they are not net contributors to the host state. Nevertheless, this does not mean that rights could be created for those that negatively impact the public finances of the Member States. In parallel, social cohesion within the Member States is promoted by the creation of a permanent status that disconnects the attribution of social rights from economic considerations. Next to this broader scope of migrants enjoying EU law rights, those who actively contribute by their economic activity are still privileged in the rights granted by EU law. In this set-up, the due consideration of a parallel pursuit of economic and social objectives, as well as the related attribution and limitation of social rights to EU migrants, frame the free movement framework as a sustainable migration framework.
Regarding the case-law, during this period, the Court deferred to the legislature. It acknowledged the balancing of economic and social objectives as they were transposed in secondary law, and no longer invoked primary law to alter this balancing. The Court continues to emphasize the special citizen status when it comes to cases related to Union children, recognizing a particular vulnerability. But it does so when the attribution of rights does not come with extra costs for the host state. To do otherwise under the current consolidation of balancing behind secondary law would be unsustainable. Having concluded the historical investigation of EU migrants’ rights, Chapter 9 will look at how economic and social considerations eventually shaped the regulation of migration from third countries.
9.1 The Failure of the System of Admission to Promote Economic Objectives
Following the Tampere Council and the unfulfilled promise of regulating migration for TCNs, The Hague Programme set the political guidelines at the beginning of the period under review.Footnote 1 Acknowledging the importance of legal migration for the economic development of the EU, the Council invited the Commission to develop a framework on the regulation of legal migration with due regard to demands for migrant labour by 2005, while noting that the determination of volumes of admission was a competence of Member States.Footnote 2 In response, the Commission issued a plan on the legislative initiatives that could be adopted to meet the competitiveness goals of the Lisbon strategy.Footnote 3 In this policy plan, the Commission pointed to the advantages of a horizontal admission framework for the last time.
Without support by the Member States and after the failed efforts to regulate migration presented in Chapter 6, the Commission suggested the adoption of one horizontal instrument and different sectoral Directives in order to grant labour migrants a minimum set of rights, while at the same time attracting specific categories of migrant workers crucial for the development of the EU economy.Footnote 4 The sectoral approach in the regulation of admission was the only viable option to overcome Member States’ reservations and align migration law with the economic objectives of the EU.Footnote 5 The analysis in this section highlights how economic objectives lie behind the differentiation of rights TCNs enjoy under the instruments, before engaging with how economic fears significantly dilute social rights and the effectiveness of these instruments in Section 9.2. Section 9.3 demonstrates the way in which the rights of TCN migrants are reconstructed in the case-law through a strong emphasis of the Court on the Charter. Finally, Section 9.4 points out to the incoherence of the system of fundamental rights protection for EU and TCN migrants.
During this period, the regulation of migration took shape in the following way. Admission takes shape under a sectoral regime which provides entry and residence to specific categories of TCNs: researchers and students, intra-corporate transferees, highly skilled workers, and seasonal workers.Footnote 6 These sectoral instruments provide for specific rights attached to each category of migrants. The admission of researchers was first regulated in a Directive adopted in 2005, which was recast.Footnote 7 Currently the admission of researchers and students is regulated in a single instrument, the Researchers and Students Directive. This recasting and unification did not alter the economic and social considerations behind their admission. Further, the admission of highly skilled workers is regulated in the Blue Card Directive adopted in 2009, which was amended in 2021. In the analysis that follows, all these instruments – that is, both the 2005 and the 2016 Directives on researchers and the two Blue Card Directives – are taken into account. The changes they introduced and potential shifts in the way economic and social considerations appear therein are commented when necessary.
In parallel, the Single Permit Directive and the Family Reunification Directive regulate horizontally the rights of all migrants legally resident in the EU regardless of whether they enjoy residence rights under national or EU law.Footnote 8 It should be noted that the Single Permit Directive underwent a revision in March 2024.Footnote 9 The analysis below refers to the currently applicable Single Permit Directive and explicit note is made for changes introduced for the first time in the 2024 recast version.
Finally, the Long-term Residents Directive extends the protection and the rights afforded to migrants due to their long presence and integration in the Member States.Footnote 10 Through a horizontal examination of the conditions for entry and the rights the instruments establish, the economic and social objectives behind the current form of regulation of migration from third countries becomes clear.
All the sectoral Directives that regulate admission have been put in place to contribute to the economic objectives of the EU. The harmonization of admission aimed at ensuring that the necessary human capital would be available to drive the desired growth.Footnote 11 This becomes clear if we look at the recitals of the different Directives, all of which are aligned with the economic targets set by EU during the years they were adopted.Footnote 12 At the same time, national contestation and fear about the effects of the attribution of rights to national economies have limited both the extent of rights TCNs are entitled to under the different instruments and the instruments’ contribution to achieving the economic objectives of the EU.Footnote 13
In any case, considering this shared objective, the instruments present crucial similarities. As a rule, admission is based on the fulfilment of certain conditions and the absence of grounds for limitation of admission (negative conditions).Footnote 14 Provided that an applicant meets the conditions of admission, migrants are entitled to a residence permit for a period of time, the minimum and maximum duration of which are defined in the relevant Directives as per Table 9.1.
Table 9.1 Security of residence
| Length of permit | Potential renewal | |
|---|---|---|
| Researchers Directive | Minimum one year unless the research project is planned for less | Renewable under conditions |
| Researchers and Students Directive |
| |
| 2009 Blue Card Directive | Minimum one and maximum four years. If the contract is for less than one year, then for the duration of the contract plus three months | Renewable under conditions |
| 2021 Blue Card Directive | Minimum two years; if the contract is for less, then for that period plus three months | Renewable under the conditions |
| Seasonal Workers Directive | Five to nine months in any twelve-month period |
|
Looking more closely into the Directives, we find many similarities on the substantive conditions that need to be met for entry to the EU to ensure the admission of individuals who will actively contribute to EU growth, while minimizing the potential economic risks, thus aligning migration to economic sustainability. Such similarities are framed differently in the relevant texts, due to their sectoral nature.Footnote 15 Despite the different framing, all the Directives require sufficient resources on the part of the TCN who applies for admission and an appropriate health insurance. At the same time, the legislative texts emphasize the need to ensure that in all cases the migrant does not become a burden on the social security system of Member States.Footnote 16 In the case of highly skilled workers, sufficient resources are proven by the contract the applicants need to provide and by the requirement that their employment meets a certain salary threshold.Footnote 17 When it comes to researchers, the Directives specify that the applicants need to have sufficient means of subsistence.Footnote 18 As for seasonal workers, the work agreement required for admission has to specify remuneration. The need to do so in this case also serves social objectives in parallel to the economic ends served by the seasonal workers’ admission. The specification of remuneration was deemed vital to avoid unfair advantages for the employer and, relatedly, exploitation of workers.Footnote 19 All the Directives also require a proof of address. However, when admission relates to migrant groups that are considered more vulnerable to exploitation, the requirement of proof of address turns into a requirement of adequate accommodation that meets specific characteristics, as is the case for seasonal workers, au pairs, and trainees.Footnote 20 Behind the requirement of adequate accommodation lies the consideration that these migrant groups are more vulnerable to exploitation, and the requirement indirectly enshrines social objectives in the regulation of admission. As can be seen in Table 9.2, admission conditions are essentially framed so as to ensure that migrant admission will not pose the slightest risk to economic growth, and that relatedly migration will be economically sustainable.
Table 9.2 Admission conditions
The grounds for refusal, withdrawal, and non-renewal of permits are also to a large extent unified as Table 9.3 shows. In all the Directives, the central ground for rejection or non-renewal is repeated as almost self-evident – that is, the failure to fulfil the criteria of admission. In addition, we find grounds that exist as negative conditions for admission: the inexistence of fraud in the application process, and the requirement that the applicant should not be a threat to public policy, public security, and public health. The Directives also contain limitations linked to the fight against irregular migration. Such limitations appear either related to the nature of the employer (to what extent economic activity effectively takes place or whether an employer is set up for the purpose of facilitating entry) or to the risk of overstaying one’s initial permit (found in the Seasonal Workers Directive). Essentially, most of the grounds of refusal, withdrawal, or non-renewal are connected to public order considerations.
Table 9.3 Grounds for refusal, withdrawal, and non-renewal
| Fraud | Public policy | Employer obligations | Illegal migration | Volumes of admission | Union preference | |
|---|---|---|---|---|---|---|
| Researchers Directive | ✓ | ✓ | ||||
| Researchers and Students Directive | ✓ | ✓ | ✓ | ✓ | ✓ | ✓ |
| 2009 Blue Card Directive | ✓ | ✓ | ✓ | ✓ | ✓ | |
| 2021 Blue Card Directive | ✓ | ✓ | ✓ | ✓ | ✓ | ✓ |
| Seasonal Workers Directive | ✓ | ✓ | ✓ | ✓ | ✓ | ✓ |
However, social objectives also condition certain of these grounds for rejection or non-renewal, to ensure that migration will be aligned with some minimum social guarantees for the migrants. Specifically, all the relevant Directives contain clauses allowing rejection or non-renewal due to failure of the employer to meet their labour law obligations.Footnote 21 Social considerations in relation to the external world also appear in the Blue Card Directives, both of which include a clause on ethical recruitment. Under this clause, Member States have the possibility to reject an application for Blue Card where professionals come from developing countries in sectors suffering from a lack of personnel and they stem from the EU commitment to tackle – or at least to not contribute to – the shortage of healthcare workers and the education sector in developing countries.Footnote 22 While similar considerations were mentioned in the recitals of the Directives on researchers, they were not incorporated in the legal provisions.Footnote 23 Additionally, only the Blue Card Directive includes provisions related to the right of Member States to withdrawal or non-renewal of a permit where the worker has no resources, and needs recourse to the social assistance system for subsistence. This is connected to the fact that Blue Card holders are the only migrants entitled to unemployment benefit during their stay. This more privileged treatment is related to the greater demand for highly skilled workers. As will be discussed later in relation to the differentiated rights enjoyed by TCN migrants, in the current system of regulation, the demand for migrants (rather than their contribution) becomes the reason for attribution of more extensive rights.
The Directives further contain provisions which allow withdrawal or non-renewal of a residence permit where the TCN was admitted for purposes other than those for which their admission was authorized. Looking at the legislative history of the Researchers and Students Directive, we see that the Council insisted on the introduction of this clause. This was, in turn, subject to reservation by both the Commission and the Parliament. In the end, the clause was inserted in the Directive, and was accompanied by a common statement of the Commission and the Parliament, in which these institutions tried to qualify the provision and emphasized that it should not constitute a precedent for the future legal migration instruments.Footnote 24 The timing of the revision seems too close to the Ben Alaya case to be coincidental.Footnote 25 Ben Alaya concerned the admission of students under the Students Directive. The German government rejected the applicant’s application for admission because it entertained doubts as to whether he was truly motivated to study in Germany. Upon referral of the case to the Court, it held that Member States were not allowed to introduce more conditions than those stated in the Directive, as such action would be contrary to its objective to promote mobility of TCNs.Footnote 26 Contrary to the suggestion of AG Mengozzi, who made reference to the possibility of rejecting an application for entry if there was precise and specific evidence that pointed to abuse or misuse of the Directive, the Court affirmed the right to entry created in the relevant Directive.Footnote 27 In light of this case, which affirmed that the Students Directive created a right of residence for TCNs, it is not hard to imagine the motivation of the Council to incorporate clauses which would allow broader discretion for the Member States.
Economic considerations also appear as a blanket ground to limit entry. In general, the right to entry of TCN migrants is without prejudice to the right of Member States to regulate the volumes of admission of TCNs under Article 79(5) TFEU. This right was given expression via specific clauses in all the relevant Directives. Essentially, Member States can refuse admission, even if a migrant meets all requirements, to protect their labour markets. The legal fitness check on secondary law on migration, conducted by the Commission in 2019, questioned the open framing of the provisions transposing Article 79(5) TFEU in the Directives and enquired whether admission quotas could be fixed at zero level and, thus, undermine the effet utile of the acquis.Footnote 28 What is more, the relevant framework is shaped under the umbrella principle of Union preference. This principle formed part of the previous attempts of the Commission to horizontally regulate entry and residence of TCNs and was articulated in a 1994 Council Resolution.Footnote 29 This principle suggests that TCNs may enter the EU labour market provided that a post cannot be filled by a worker who is already part of the labour market. This so-called labour market test, guided by the Union preference principle, means that Member States maintain discretion to reject admission where a vacancy can be filled by an EU national, a TCN legally resident in a Member State and already part of its labour market, or a long-term resident in any Member State. In the 2001 Proposal, the Commission suggested a system to operationalize it and prove the fulfilment of the labour market test by Member States.Footnote 30 In the current framework, even though the test is included as a reason to reject an application for admission, there is no procedure to be followed for it.
It is important to note here that the labour market test was not included in the first Researchers Directive. This can be explained by the economic need for researchers at the time when the Directive was proposed and adopted. Specifically, in the 2004 proposal, there was particular emphasis on the number of researchers needed by the EU to reach the Barcelona growth target in research activities.Footnote 31 Acknowledging that it was impossible to meet this target without external recruitment of TCNs, the Commission emphasized that researcher admission could not be subject to the discretion of Member States to control numbers of admission.Footnote 32 However, the possibility of subjecting the recruitment to Union preference came back in the recast Directive, adopted in 2016. The proposal for the recast does not elaborate on why these new grounds were added. Instead, the explanatory memorandum mentions that these were standard conditions under the existing migration Directives.Footnote 33 This, connected to the fact that the current Directive includes this test as a ground for non-renewal but excludes researchers from its ambit, must mean that the alignment came on a technical level, but the differentiation as to the treatment of researchers should persist.
Overall, looking at the criteria for admission, the following observations can be made. The Commission’s ambition to put in place a harmonized system of admission was clearly tied to the need to promote the economic objectives of the EU and to align the regulation of migration with economic sustainability. At the same time, the way national fears on the economic repercussions of migration appear in both primary and secondary law set the system up for failure. Specifically, some of the conditions of admission included in the Directives can significantly limit the right to entry created in secondary law.Footnote 34 Such limitations can prove detrimental to the very objective served by the regulation of migration, which is to ensure the economic sustainability of the EU. Among the different conditions that appear in the Directives, the discretion of Member States under their right to regulate the volumes of admission is the most problematic. The inclusion of this requirement in primary law shows the limits of Member States’ understanding of the role of migration for the EU collective project. But next to that, the fact that the Directives do not introduce a system of review by the EU institutions means that Member States can apply this right in very diverse ways and limit the effectiveness of EU law. Having explained how economic objectives, economic fears, and certain social demands are reflected in secondary law, Section 9.2 examines the differentiated protection introduced by the Directives for migrant workers depending on how essential they are deemed to be for the EU project of growth.
9.2 Differentiated Rights and Privileged Statuses
Under EU migration law as it stands today, TCNs enjoy different rights depending on how much their contribution is needed to the EU development project. On a basic level, the Single Permit Directive lays down a minimum core of rights for all migrants, resident in EU territory, regardless of from where they draw their right to reside, whether national or EU law.Footnote 35 The Single Permit Directive is primarily aligned with the social objectives of the EU, as it aims to guarantee fair treatment to all migrants at EU level. Of course, as has been emphasized throughout this historical investigation, the social objectives of the EU are closely connected with the economic ones, and, relatedly, the economic and social pillars of sustainability expressed in the primary objectives are pursued in parallel in the regulation of migration. In this regard, a closer look at the history and the recitals of the Single Permit Directive reveals that the attribution of rights is also related to economic objectives connected both to the economic contribution of TCNs but also to the avoidance of social dumping.Footnote 36
In general, in the attribution of rights to TCN migrants, we see the reproduction of the considerations of the EU institutions and the Court behind the rights of EU migrants at the initial stages of the Community project. The first such consideration is that TCNs equally contribute through their work to the EU and, therefore, they should enjoy a set of rights. Secondly, granting equal rights throughout EU territory ensures that there is no unfair competition between the Member States, but also between TCN and EU migrants, thus avoiding social dumping and migrant exploitation.Footnote 37 In reproducing such considerations, the Single Permit Directive constitutes yet another attempt to align migration with the economic and social objectives of the EU, as well as with economic and social sustainability.Footnote 38 In parallel, each sectoral Directive includes more specific provisions and grants rights of different kind and extent to TCN workers.
The analysis in Sections 9.2.1–9.2.3 maps the rights TCN workers enjoy under all these instruments. Section 9.2.1 engages with the extension of rights for categories of migrants deemed crucial for the EU economy. Subsequently, Section 9.2.2 shows the dilution of equal treatment in secondary law through the introduction of fragmented provisions and various limitations. Finally, Section 9.2.3 investigates how equal treatment was erased from the cooperation of the EU with third countries during this period. The examination reveals the problematic way in which economic objectives served by specific types of migrant admission shape the differentiation of migrants’ rights.
9.2.1 Attribution of Rights in Order to Maximize Economic Benefits
The rights of TCN migrants are defined horizontally in the Single Permit Directive and are differentiated based on the function of different categories of migrants for the EU economy. Specifically, all migrants enjoy the right to enter, stay, and move within the territory of the host state, and to exercise the activity for which their stay was authorized under the Single Permit Directive. Researchers are also allowed to teach next to their scientific work, while highly skilled workers are the only category of people who enjoy access to any type of employment after some time of legal residence. On the other side of the rights spectrum, seasonal workers are restricted to the exercise of a specific activity. However, to protect them from exploitation, the Directive recognizes their right to change employer within the specific field of activity in line with social considerations. The recast Single Permit Directive also creates a right to change employer under specific conditions, thereby enhancing the rights of all migrants legally resident in the Member States.Footnote 39
Section 9.1 showed that security of residence is dependent upon the Directive from which TCN migrants draw residence rights. In most cases, security of residence is attached to a job contract and can be provided for a period of minimum and maximum time provided in the Directives. Until the recent revision of the Single Permit Directive, only highly skilled workers had a right to reside to find work. Specifically, student and researchers can enjoy residence as jobseekers for a limited period, and the reason behind this was to allow Member States to tap into the employment potential of the already trained and qualified workforce.Footnote 40 A similar right to reside beyond the specific employment exists for highly skilled workers, who have the possibility of being unemployed for a period of time without risking the validity of their residence permit. After the revision of the Single Permit Directive, all legally resident migrants should enjoy such a right for a different time period dependent on the duration of their permit.Footnote 41
All TCNs legally resident in any Member State are also allowed to move within the EU territory for up to 90 days in any 180-day period. This movement refers to short-term mobility; it is based on Schengen, and it does not relate to the exercise of economic activity.Footnote 42 Free movement for the purpose of economic activity is provided only to specific categories of migrants. Specifically, the Researchers and Students Directive provides for temporary mobility to allow migrants to carry out their work in another Member State. Further, the Blue Card Directives and the Student and Researchers Directive allow for long-term mobility – that is, the possibility to move permanently to another Member State and take up work there.Footnote 43 It is purely economic objectives that dictate the free movement rights of highly skilled workers and researchers based on the necessity of making the EU internationally competitive for such migrants and improving labour market efficiency.Footnote 44 The mobility of researchers and highly skilled workers also creates free movement rights for their family members. Specifically, for migrants falling under the scope of the Researchers and Students Directive, the Blue Card Directive and the Long-term Residents Directive, family members enjoy intra-EU mobility rights in order to be able to follow their sponsor in case of move.
Notably, economic needs served by the admission of researchers and highly skilled workers are the reason behind the introduction of derogations from the Family Reunification Directive. Specifically, the Blue Card Directives and Researchers and Students Directive include more favourable provisions on family reunification for the categories of migrants falling within their scope. These more favourable provisions, which cover not only the conditions of family reunification but also the rights enjoyed by family members, are linked to the need to make the EU more attractive as a destination to these particular migrants.Footnote 45 Indicatively, access to employment is easier for family members of highly skilled workers and researchers. The analysis in Section 6.2.1 showed that access of family members to employment can be limited to ensure that their migration does not become an economic liability for Member States in times of recession.Footnote 46 This limitation does not apply to Blue Card holders and researchers. The Blue Card Directive includes a derogation from such limitation and demands the direct access of family members to employment.Footnote 47 The Researchers and Students Directive on the other hand provides that access of family members to employment should not be limited, unless exceptional circumstances exist, such as particularly high levels of unemployment.Footnote 48 Overall, in derogating from the minimum standards of the Family Reunification Directive and introducing more relaxed conditions for reunification and more extensive rights for the specific groups of migrants, the objective is no longer ensuring migration in dignity for the worker. Rather, family reunification is used instrumentally as a means to attract migration of specific kind.
In addition to this, the Blue Card Directive is the only instrument that derogates from the Long-term Residents Directive by granting preferential conditions for access to the long-term resident status. Specifically, the 2009 Directive provided that the Blue Card holder and their family members could accumulate periods of residence in different Member States in order to fulfil the five-year duration requirement.Footnote 49 It also provided that the long-term resident status would not be lost in case of absence of the highly skilled worker from EU territory for a period of twelve to eighteen months, which could be extended to twenty-four months if Member States preferred.Footnote 50 Economic considerations behind this differentiated access of Blue Card holders to the long-term resident status appear in the following way. The EU needs highly qualified personnel to maintain growth, so it is shaping a framework where such highly qualified personnel get easier access to a set of rights, in order to make the EU an attractive destination for these workers.Footnote 51 This is fully understandable in terms of marketing the EU as an attractive destination for specific migrants; however, it is highly questionable from the perspective of non-discrimination in the adoption and implementation of EU law. Despite the Commission’s recent suggestion to allow all migrants to accumulate periods of residence in different Member States in order to acquire the long-term residence status, the Council’s position was that such accumulation could only extend to all highly skilled workers in general.Footnote 52
In this sense, it becomes clear that the legal system put in place attributes more rights to those who are seen as crucial for the development of the EU project. In parallel, the economic fears of Member States, their short-term approach to migration, and the possibility to attract such individuals by parallel national schemes has led to the introduction of so many conditions for the exercise of mobility rights that the economic objectives pursued fail to be achieved in practice. The requirements for cross-border movement under both the Blue Card Directive and the Researchers and Students Directive are very close to requirements for entry, thereby hampering the objectives of the instruments, which is to abolish obstacles to mobility as a means to promote growth and relatedly to align the regulation of migration to the economic sustainability of the EU. Similar problems appear in relation to the pursuit of social objectives in the instruments. As Section 9.2.2 will discuss, the instruments regulating the rights of TCN migrants offer a diluted version of equal treatment in EU law.
9.2.2 The Dilution of Equal Treatment in Secondary Law
Equal treatment between TCN migrants and nationals of the Member States is guaranteed in all the relevant Directives. However, unlike the broad clauses inserted in Association Agreements concluded in the 1970s and 1980s, the framework in place now provides detailed enumeration of the areas where equal treatment must be granted, as well as the acceptable limitations to these areas.Footnote 53 The force of general equal treatment clauses in EU law has shaped very extensive protection for individuals.Footnote 54 In view of this, and of the extensive interpretations of the Court on equal treatment of migrants, it should not come as a surprise that Member States tried to restrict the formulation of equal treatment in the relevant Directives. Table 9.4 shows the areas where the Directives provide for equal treatment rights, as well as the potential limitations that can be introduced to equal treatment.
Table 9.4 Equal treatment
| Single Permit Directive | Researchers Directive | Researchers and Students Directive | 2009 Blue Card Directive | 2021 Blue Card Directive | Seasonal Workers Directive | |
|---|---|---|---|---|---|---|
| Working Conditions | ✓ | ✓ | ✓ | ✓ | ✓ | ✓ |
| Education and Vocational Training | Limitations possible | Limitations possible | Limitations possible | Limitations possible | Limitations possible | Limitations possible |
| Recognition of Professional Qualifications | ✓ | ✓ | ✓ | ✓ | ✓ | ✓ |
| Tax Benefits | Limitations possible | ✓ | Limitations possible | Limitations possible | ||
| Social Security | Limitations possible | ✓ | Limitations possible | ✓ | ✓ | Limitations possible |
| Access to Goods and Services | Limitations possible | ✓ | Limitations possible | Limitations possible | Limitations possible | ✓ |
| Freedom of Association | ✓ | ✓ | ✓ | ✓ | ✓ | |
| Employment Advice Services | ✓ | ✓ | ✓ | ✓ | ✓ | ✓ |
First of all, unlimited equal treatment is guaranteed regarding working conditions; however, there is a lack of coherence in the way this is framed in the relevant Directives.Footnote 55 Despite the different framing, it is safe to assume that the right applies to all legally resident migrants without differentiation, as it constitutes an expression of Article 13 CFR.Footnote 56 Equal treatment as regards recognition of professional qualifications is also provided in all the Directives.Footnote 57 In addition, all the Directives provide equal treatment as regards access to advice services afforded by employment offices.Footnote 58 This should not come as a surprise in light of the continuous emphasis in different Commission documents on training the existing workforce to correspond to new needs and on ensuring that labour needs are covered by TCNs already resident and active in the internal market.Footnote 59 Finally, all the Directives also provide for freedom of association and affiliation. The Seasonal Workers Directive makes explicit reference to the right to strike and take industrial action, including the right to negotiate and conclude collective agreements. In any case, the relevant right is a specific expression of Article 12 CFR, and as a result, it should not be differentiated between different categories of TCNs, as the right is guaranteed to everyone regardless of their nationality.Footnote 60
As to the rest of the areas where equal treatment is required, they appear with different limitations and variations. Some can be explained due to other rights enjoyed by TCNs (whether they enjoy mobility rights or not, and what is the status under which they entered), while others are firmly based on economic considerations of averting risks from migration. Specifically, in the area of education, limitations appear in all the instruments, allowing Member States to exclude study grants from equal access to migrants.Footnote 61 What is more, Member States are given the possibility to set conditions of access to university and higher education.Footnote 62 In the Single Permit Directive, the text mentions appropriate language proficiency, payment of fees, or specific educational prerequisites as possible conditions, and Member States can also limit access to education if it is not linked to the specific employment activity of the TCN.Footnote 63 A similar possibility on limiting equal treatment regarding access to education or training directly linked to the employment activity also exists in the Seasonal Workers Directive.Footnote 64 Finally, the Single Permit Directive provides for the possibility to limit the application of equal access to education to TCNs who are employed, or are registered as unemployed, and to exclude students.Footnote 65 In the area of education, the Fitness Check conducted in 2019 by the Commission suggested:
While some [restrictions] appear ‘logical’, such as the restriction in the SPD [Single Permit Directive] that the right can be limited to those who are in employment or are registered as unemployed, the reason why others have been introduced in one or more Directives (but not in others) cannot be easily explained, such as the restrictions related to language proficiency and the fulfilment of specific educational prerequisites.Footnote 66
Arguably, even such limitations are not really justified if we take into account the social aims pursued by the Directives. Apart from aligning migration with the economic objectives of the EU, the relevant instruments seek to secure fair treatment for migrants and to achieve some kind of social progress in the form of rights attributed to migrants. The emphasis put on education as part of the integration policies pursued at EU level to ensure social cohesion necessitates full equal treatment as regards access to education.Footnote 67 That is, of course, since the aim of regulating migration is not only meeting the economic sustainability objectives but also the social ones.
Another area of tension is access to social security, social assistance, and social protection, which are differentiated between the categories of TCNs. The Legal Fitness Check suggested that the limitation of access to social security in employment-related Directives is justified, as this is linked to the condition that migrants have sufficient resources to not become a burden.Footnote 68 Equal treatment applies to social security as a recognition that workers contribute by their work and tax payments to public finances, and to serve as a safeguard against unfair competition that may result from exploitation.Footnote 69 Social assistance, in contrast, was deliberately excluded from the relevant Directives because incoming migrants should have sufficient resources not to require financial support.Footnote 70 Social assistance and social protection is secured only for long-term residents, but even in their case, it can be limited to core benefits. This was not what the Commission aimed for in the original proposals. As regards the Directives that also provide rights to free movement in the EU, limitations can be introduced, and equal treatment can be limited to the Member State where the migrants have their registered place of residence.Footnote 71
It should be noted that all these Directives operate within the context of Article 20 CFR, which provides for general non-discrimination rights within the scope of EU law. Unequal treatment is thereby allowed to the extent it can be justified. Relatedly, the Legal Fitness Check suggested that EU migration law, in the way it is formed through the relevant Directives, could be described as a ‘fine-tuning of legitimate differentiated treatment’.Footnote 72 Looking at the way equal treatment is dissected and diluted in the relevant provisions, it is clear that limitations are inserted in order to avoid repercussions of granting rights to public finances. In cases where equal treatment comes with no cost for national economies, there is no reason to discriminate. However, in light of the parallel pursuit of economic and social sustainability as manifested in primary law objectives, the question that remains open is to what extent social cohesion can be guaranteed and when equal treatment is intentionally limited to deprive migrants from EU law protection.Footnote 73 This limitation of social rights of TCN migrants does not align well with social sustainability objectives. This is especially because all these TCN migrants come within the scope of EU law because they are admitted as workers and thereby contribute to the project of growth.
9.2.3 Erasure of Equal Treatment and Informalization of the Relation of EU with Third Countries
In parallel to the framework of admission and rights shaped for all legally resident migrants discussed in Section 9.2.2, in this period we witness the erasure of equal treatment clauses in the Agreements concluded by the EU with third countries, and the further informalization of cooperation with third countries in the area of migration.
The Stabilisation and Association Agreements (SAAs) concluded with many Western Balkan countries were the only agreements that set up some minimum rules on equal treatment for workers legally employed in the Member States with regard to working conditions, remuneration, or dismissal.Footnote 74 These Agreements did not include equal treatment on social security and did not provide for any kind of right to entry or access to the labour market. This is so even though such Agreements were signed as pre-accession instruments. What is more, the wording of the relevant provisions is different from those of the Euro-Mediterranean Agreements, as they stipulate that equal treatment must be granted subject to the conditions and modalities applicable in each Member State. This could be understood as an attempt to limit the direct effect of the relevant provisions. The identical wording was used in Europe Agreements, and was found by the Court to have direct effect.Footnote 75 Even though there is no case-law on SAAs, there is no reason to assume that the Court would follow a different approach. In addition, the SAAs grant rights of access to the labour market to the worker’s spouse and children who are legally residing with them during the worker’s authorized stay of employment.
Aside from these Agreements, which were signed as pre-accession instruments, the approach of the EU to labour migration from third countries has undergone a massive shift. With a general system of admission in place for different categories of TCN workers, development cooperation during this period focused on preventing the entry of all those who attempt to join the EU irregularly. The tensions in the Mediterranean region are perceived as a crisis to be addressed by flexible non-binding arrangements.Footnote 76 The objective of cooperation has not changed in so far as its declared focus is still on protection of legal migrants, the development potential of migration for the host state, and combatting illegal migration.Footnote 77 However, these objectives demand different legal means of cooperation in light of the evolution of EU law. Relatedly, the EU no longer negotiates any binding instrument that can create channels of admission or rights for nationals from specific third countries. Rather, it emphasizes addressing the root causes of migration and creating better living conditions in the region.Footnote 78
During the relevant period, and in parallel to the shaping of an autonomous EU migration framework, the EU was also dealing with the effects of the 2008 economic crisis with diverse repercussions for national economies. In this regard, it would be hardly imaginable for Member States to support binding instruments that created cooperation on admission and rights for workers from third countries. Instead, what they wanted to promote was smart planning that would allow the EU to admit labour migration when needed, while maintaining cooperation with the Mediterranean countries with a view to assisting their development. The means chosen to do this was to informalize cooperation based on a differentiated dialogue with each Mediterranean country.Footnote 79 In so doing, Migration Partnerships which are soft-law instruments are now preferred so as to guarantee the EU can maintain regular migration channels so that it can have the manpower it needs, while at the same time maximizing the impact of migration for development.Footnote 80 Mobility Partnerships are signed in the form of political declarations that set the goals for migration cooperation between the EU and third countries. The EU has signed Mobility Partnerships with Morocco, Tunisia, and Jordan in the Euro-Mediterranean region.Footnote 81 These declarations do not affect the obligations of the parties under the Euro-Mediterranean Agreements.
In conclusion, the evolution of the framework of cooperation with third countries on migration has undergone a major shift which is based on changing geopolitical circumstances and labour needs in the EU. The more intense labour needs were, the more rights were attributed to migrant workers under Association Agreements. At the same time, we need to remember that, even though in first reading it might look like the rights of such migrants are excluded from EU law, this is not the case; rather, the basis of protection has changed. This means that migrant workers legally resident in the EU and coming from countries in the Euro-Mediterranean no longer enjoy rights on the basis of Association Agreements, but rather on the basis of EU secondary law. Hence, despite the reconfiguration of cooperation, there is a constant understanding on the part of the EU that the rights of migrant workers located in EU territory are non-negotiable due to their active contribution to the EU development project. Rather, what remains negotiable is the regulation of entry or, perhaps, the emphasis on avoiding entry to ensure that no more will come than the EU is able to make use of. The functional role of the migrants, which set the basis for their rights, is now showing its ugly face, by ensuring the exclusion not of those who cannot contribute, but of those whose contribution is no longer needed. Following the examination of the legislative evolutions of this period, Section 9.3 will turn to the consolidation of social rights in the case-law of the Court.
9.3 The Consolidation of Social Rights in the Case-Law
Contrary to the legislative intention to differentiate social rights between different categories of migrants and to dilute equal treatment by allowing for derogations to avoid presumed economic repercussions, the Court has followed a consistent approach and has guaranteed the rights of migrants by reviewing different national limitations in light of the Charter. While economic considerations are not absent from its reasoning, the Court consistently emphasizes the protection afforded by the Charter to consolidate the rights of TCN migrants.
In the following sections, a broad-range of case-law related to rights of TCN migrants in social security, family reunification, and security of residence under both secondary law and the EEC–Turkey Agreement is examined. The analysis in Sections 9.3.1–9.3.4 showcases the Court’s perception on the interplay of social and economic objectives behind migrant protection. Subsequently, in Section 9.3.5, I explain how the approach of the Court not only consolidates the social objectives of the EU project, and relatedly the social pillar of sustainability, but also the constitutional architecture of the EU legal system. The interpretations of the Court follow its meta-teleological technique of adjudication, that is, the interpretation of secondary law as means to fill the normative gaps of the EU constitutional order in the making.Footnote 82
9.3.1 The Judicial Reconstruction of Social Rights of Migrant Workers
Against the incoherent economic obsession with conditioning the rights of migrants in secondary law so that they do not pose risks for the economy, the Court has put forward a positive vision related to the rights all migrants should enjoy under EU law. This concerns not only migrants covered under secondary law but also those whose residence status in Member States is irregular. Specifically, in Tümer, the Court had to interpret the scope of application of Directive 80/987/EEC on the protection of employees in the event of insolvency of their employer.Footnote 83 Tümer, a Turkish national living in the Netherlands, had worked for a company that was declared insolvent. His application for insolvency benefit was rejected on the ground that he was not legally resident in the Netherlands. In that case, the Netherlands argued that since the Directive was based on Article 137 EC, which provided the Union with competence to adopt Directives with a view to achieving social objectives related to the improvement of working conditions, it could not apply to TCNs, even regularly resident ones.Footnote 84 If regularly resident aliens were to be protected, the state argued that the concept of employee could be construed under national law to exclude irregularly resident TCNs.
AG Bot suggested that excluding TCN workers from protective measures adopted for employees would not be compatible with the purpose of the EU social policy, as it would encourage the recruitment of foreign labour in order to reduce wage costs.Footnote 85 Additionally, with reference to Germany and others v Commission, he emphasized that the Court had already acknowledged the relation of the Union’s social policy to the policy that applied to workers from third countries.Footnote 86 The AG proceeded to suggest that the crucial factor triggering obligations under the relevant Directive was the employment relationship of a person to an insolvent employer.Footnote 87 Importing a condition of nationality in the scope of the Directive would go against its objective to guarantee all employees in the EU a minimum level of protection.Footnote 88 He then went on to examine whether there was discretion on the part of Member States to exclude irregularly resident migrants. In this examination, he suggested that since the employee status was the crucial status, making it conditional to legal residence would go against non-discrimination.Footnote 89 The AG suggested that irregularly resident TCNs who had worked and paid contributions were in a comparable situation to other employees, and there was nothing to justify a differentiated treatment.Footnote 90
The Court confirmed the AG’s approach and noted that EU social policy was concerned with promoting the living and working conditions of both nationals of the EU Member States and TCNs.Footnote 91 It held that Member States could not define the term ‘employee’ in such a way as to undermine the social objective of the Directive.Footnote 92 As a result, the Directive was found to preclude national laws, such as the Dutch one, which strip irregularly resident TCNs of protection. As long as somebody is in employment, the social rights they derive therefrom should not be undermined because their residence is not legal. This case is significant in showing the application of EU social policy for all migrants engaged in the EU development project. What is more, it is crucial for understanding how the economic contribution made by migrants’ work is at the heart of the protection afforded by EU law.
Next to this case, the Court has also handed down rulings reconstructing equal treatment and limiting the effects of secondary law for the rights of migrants. The line of reasoning that underlies the relevant case-law was set in Kamberaj, which concerned discriminatory conditions for access to a housing benefit by a long-term resident. In that case, the Court held that while the provisions of the Long-term Residence Directive provided for equal treatment in access to social security, social assistance, and social protection as defined in national law, these concepts could not be defined unilaterally by Member States without the risk of undermining the effectiveness of the Directive.Footnote 93 The interpretation of what constitutes social security, social assistance, and social protection under national law needs to comply with the Charter. Article 34 CFR guarantees equal treatment regarding access to specific social benefits in order to guarantee decent living to all those who lack sufficient resources.
In light of this, the Court held that national courts should interpret the relevant concept of social assistance in the Long-term Residents Directive in light of the Charter in order to assess whether benefits of different kinds fell under the categories of benefits where equal treatment should be provided.Footnote 94 The Court further stated that the derogation allowed under Article 11(4) of the Directive should be interpreted strictly in light of the social purpose of integration.Footnote 95 It also clarified that the provision of the Directive which allowed the limitation of equal treatment only to core benefits could not be invoked on a case-by-case basis. Rather, such a derogation needs to be expressed clearly at the time of implementation of the Directive in national law.Footnote 96 It further suggested that the meaning and scope of core benefits for the purposes of equal treatment should be construed with reference to the purpose of integration as the objective for long-term residents.Footnote 97 It thus held that core benefits are benefits that enable individuals to meet their basic needs such as food, accommodation, and health, and should be aligned with the minimum benefits covered by the Charter.Footnote 98
A similar reasoning was followed by the Court in relation to rights under the Single Permit Directive in Martinez Silva.Footnote 99 In that case, a migrant worker was excluded from a grant that was provided to households with at least three minor children and income below a minimum amount. The Single Permit Directive provides for equal treatment not in line with national law, but with reference to social security as defined in Regulation 883/2004 and, more specifically, the family benefits covered under Article 3(1)(j) thereof.Footnote 100 The Court found that the benefit at issue fell under Article 3(1)(j) of Regulation 883/2004, with reference to previous case-law where it had held that family benefits covered all kinds of benefits which are automatically granted to families on the basis of objective criteria without discretionary assessment of personal needs, and which are intended to meet family expenses, as a public contribution to the family’s budget to alleviate the burdens involved in the maintenance of children.Footnote 101 Once more, the Court pointed to the possibility to derogate from equal treatment provided in the Directive, but it held that such a possibility existed only if the Member State explicitly chose so at the transposition of the Directive.Footnote 102
The line of case-law developed in Kamberaj for long-term residents, and applied in Martinez Silva under the Single Permit Directive, has been since confirmed regarding different types of benefits claimed by TCNs.Footnote 103 The Court has followed a clear line of reasoning in promoting fair treatment for this group. When it comes to core benefits, to determine if they need to be granted under equal treatment conditions, Member States need to comply with the Charter. If a benefit serves the purpose set out in Article 34 CFR, then TCNs can in no case be excluded therefrom. The central evaluation then seems to concern the purpose of the benefit: does it aim at making life liveable and ensuring a decent existence for all? If so, it needs to be granted to long-term residents in light of the objective of integration, and to all migrants covered under the Single Permit Directive in light of the objective of ensuring fair treatment. Then as regards non-core benefits, Member States must explicitly exclude migrants therefrom by derogating from equal treatment when they transpose the relevant Directives. It is only in such cases that the Court considers that the relevant discriminatory attribution falls within national law and the measures cannot be reviewed for compliance with the Charter.
In this case-law, we see that the Court puts forward the social objectives served by secondary law (integration of long-term residents and fair treatment) not as a by-product of the economic contribution of the migrants, but rather under a positive vision of social justice in line with the social sustainability objectives of primary law. In doing so, the Court connects the protection of migrants under EU law with the evolution of the legal order and the incorporation of human rights guarantees under the Charter. By correlating the derogations allowed under secondary law to the provisions of the Charter, it dictates minimum safeguards of fundamental rights protection, thereby limiting the space for derogation by Member States and the EU legislator.Footnote 104
9.3.2 Social Rights Compensating for the Lack of a Right to Remain for Turkish Workers
A similar extension of social rights has taken place in relation to social security rights of Turkish workers. In the relevant case-law, it is not the Charter that directed the extensive interpretation of the Court, but rather an understanding of rights as compensatory for the work somebody has carried in the EU, in cases where EU law does not grant a right to remain and enjoy such rights in EU territory.
This was the case in Akdas, where the Court found that non-discrimination should lead to exportability of benefits for Turkish workers, where the same does not apply to EU workers.Footnote 105 Akdas, a Turkish worker in the Netherlands, became incapacitated to work and obtained a supplementary benefit to ensure a minimum income level. He returned to Turkey, where he retained the benefit under Article 39(4) of the Additional Protocol to the Agreement. Dutch law was eventually amended, leading to a progressive withdrawal and termination of the benefit for all workers who had no residence in the Netherlands. The question addressed to the Court was whether such withdrawal for recipients who resided outside the Member State went against Article 6(1) of Decision 3/80.
The Court acknowledged that the wording of the Decision did not tie residence in the host state to continuation of benefits of such kind.Footnote 106 At the same time, EU secondary law on social security for EU migrants had been amended and had introduced an exception to the exportability of benefits like the one in question.Footnote 107 This meant that EU migrants who found themselves in circumstances like those of Akdas would have the benefit withdrawn if they moved outside the Netherlands. The Court held that such a difference in treatment would not be incompatible with Article 59 of the Additional Protocol to the Agreement, which required that Turkish workers were not treated more favourably than EU ones.Footnote 108 In order to justify this, the Court invoked the limited residence rights of Turkish nationals. It pointed out that Turkish migrants, unlike EU ones, had no right to remain in the host state if they could no longer contribute to the labour force.Footnote 109 For them, there is no option to maintain residence and, thereby, the benefit. According to the Court, the fact that they have no right to stay because they can no longer contribute with their labour power should not be construed as a voluntary conduct that leads to loss of their rights.Footnote 110
What happens where the Turkish worker is not forced to leave the territory of the host state? This situation was addressed by the Court in Demirci, where a Turkish worker requesting the continuation of exportability of the benefit had acquired Dutch citizenship next to the Turkish one.Footnote 111 In this case, as AG Wahl explained, the objective of Article 6 of Decision 1/80 is to compensate workers for the ‘the misfortunes they have suffered in the host Member State’, an objective which is reasonable precisely due to the contribution the migrant workers have made in the host state.Footnote 112 Following the AG, the Court held that such compensation is no longer needed where the worker manages to acquire the nationality of the host state.Footnote 113 An opposite conclusion would mean that Turkish workers who acquire the nationality of the Member State would be treated more favourably both compared to Turkish workers who no longer belong to the labour force and have no right to reside, and to nationals of Member States, who would have to maintain their residence in the Netherlands to receive the benefit.Footnote 114The Court has also ruled on cases where the acquisition of nationality of the host state by a worker did not imply the loss of rights derived from the Turkish worker status. This was the case in Khaveci and Inan, which concerned family reunification rights for Turkish workers naturalized in the host state.Footnote 115 The Court based the differentiation between Demirci and Khaveci and Inan on the fact that the workers in question had the possibility to enjoy the benefit, if they maintained residence in the Netherlands, and on the social purpose of Decision 1/80, which created rights for family members and not for the workers themselves.Footnote 116
The significance of this case-law and, relatedly, its financial repercussions for Member States led to a revision of Decision 3/80 in order to limit this extensive protection.Footnote 117 Despite the revision, some observations are to be drawn from the consistently extensive application of social security rights in the case-law. There is an implicit understanding by the Court that Turkish workers who can no longer contribute their work and are thus forced to leave the host state, not being able to claim any residence right from EU law, need to be compensated and extensively protected. The basis of such protection is none other than non-discrimination. The extension of social security rights to compensate for a lack of a right to remain should be seen in light of the parallel pursuit of economic and social objectives by EU law. Migrants contribute to economic development by their labour and are granted rights as a compensation for such labour in a legal order constantly guided by the pursuit of economic and social sustainability.
9.3.3 Social Objectives and Economic Risks behind Family Reunification
Another instrument which highlights the intimate connection of the economic and social pillars of sustainability pursued in the regulation of migration is the Family Reunification Directive. Section 6.2.1 outlined the social objectives served by its adoption. However, the Directive does not only regulate the conditions under which family reunification should take place; more importantly, it creates a right to family reunification for all TCNs who fall within its scope.Footnote 118 This was acknowledged by the Court in its case-law during the period under review.
In Parliament v Council, the Court held that the Family Reunification Directive goes further than international human rights instruments on the protection of family life for migrants.Footnote 119 Specifically, looking at international human rights law, the Court confirmed that, as a rule, there is no right for aliens to be allowed to enter the territory of a Member State for the purpose of family reunification and the corresponding protection of family life. Contrary to international human rights law and going beyond it, the Directive creates positive obligations for Member States to authorize family reunification if the conditions stated therein are fulfilled.Footnote 120 Relatedly, the Court has held that any limitations to the rights conferred by the Directive should be interpreted strictly and has used the Charter as a basis of review of restrictive national practices. In the respective case-law the balancing of economic and social objectives conditioning the rights attributed under the Directive is clear.
Specifically, the Family Reunification Directive provides that Member States may require evidence that the sponsor has accommodation regarded as normal for a comparable family, health insurance, and stable and regular resources to maintain themselves and their family, so they do not become a burden to the social assistance system of the Member States.Footnote 121 In Chakroun, the Court elaborated on how stable and sufficient resources should be perceived and if this requirement should exclude migrants who may be eligible for certain types of social assistance.Footnote 122 Taking the right to entry created for family members under the Directive as a starting point, the Court held that family reunification was the general rule. As a result, the conditions provided for it should be interpreted strictly.Footnote 123 The Court further pointed out that the margin of appreciation of Member States should not be exercised in such a way as to undermine the objective of the Directive, namely to promote family reunification, and its effectiveness.Footnote 124 This strict interpretation in line with the objective of the Directive also needs to be aligned with the protection of fundamental rights, and specifically respect for family life, as protected by the Charter and the ECHR.Footnote 125 In this context, the Court interpreted the requirements of Article 7(1)(c) of the Family Reunification Directive as meaning that the concept of social assistance referred to assistance which compensated for lack of stable, regular, and sufficient resources and could not cover assistance that enabled exceptional or unforeseen needs to be addressed.Footnote 126 This was confirmed by the Court in O and S, this time mentioning the need to align the interpretation of the Directive not only with Article 7 CFR but also with Article 24 on the rights of the child.Footnote 127
Subsequently, in Khachab, the Court had the opportunity to clarify the meaning of regular and stable resources.Footnote 128 Following the line of reasoning established in Chakroun, the Court emphasized that this requirement should be interpreted in light of Article 7 CFR and with a view to promoting family life.Footnote 129 The presence of stable and regular resources implies the existence of a degree of permanence and continuity, allowing the Member State to assess whether the sponsor has the prospect of maintaining the resources for a period after the submission of the application. This prospective assessment was thought to be in line with the system of the Directive, which allows for refusal of renewal where the sufficient resources criterion is no longer satisfied.Footnote 130 What is more, this interpretation was aligned by the Court with the objective of Article 7(1) of the Family Reunification Directive – that the sponsor or his family should not become a burden on the social assistance system of the Member States during their stay.Footnote 131 The assessment, however, should take place in line with the principle of proportionality, and on a case-by-case basis in accordance with the requirement of Article 17 of the Directive.Footnote 132
As with the case law on EU migrants, the Court acknowledged the limits set by the legislator on the rights of TCN migrants in light of the economic objectives of the EU project. Nevertheless, it firmly grounded the review of such limitations in the changed architecture of the EU legal order, and it emphasized the need to guarantee the rights of individuals under EU law in light of the Charter. The use of the Charter in these cases has a double function. First, it consolidates the constitutional architecture of EU law. Second, it appears as a particular manifestation of the social objectives of EU law, and relatedly of how the social pillar of sustainability is pursued by a strong grounding on human rights considerations.
9.3.4 Security of Residence Promoting the Social Objectives of the EU
The Court has followed a similar approach also in relation to interpretation of the provisions of the Long-term Residents Directive. The long-term resident status is attributed to all migrants residing in a Member State for a period of five years under Article 4(1) of the Directive. However, not all types of legal residence count towards the fulfilment of the five-year duration criterion. Specifically, the Directive excludes certain categories of legal residence based on the presumption that the migrant in question has no intention to stay in the Member State for an extended period of time.Footnote 133
The Court has had the opportunity to define what is meant by stay on temporary grounds and, thus, what types of permits are excluded from the calculation of the residence duration.Footnote 134 In light of the purpose of integration served by the Directive, the Court held that the permits excluded are based on the consideration that their holders do not seem to have prima facie any intention to settle in the EU for the long term.Footnote 135 In other words, their legal status objectively represents an intention to exist in the host Member State for a limited period of time. When it comes to national residence permits that are limited (for example, in terms of access to a specific occupation), but do not prevent the long-term residence of the migrant, these cannot be excluded from the calculation of the period necessary for the long-term resident status.Footnote 136 If they were excluded, this would allow much leeway to Member States, in consequence depriving the Directive of its effectiveness.
While the duration of residence is the main criterion for access to the status, the Directive also provides for the following conditions.Footnote 137 Applicants for long-term residence permit need to prove that they have stable and regular resources, and health insurance, and may also be required to comply with integration conditions. In these requirements, we see that the social aim of furnishing security of residence to migrants who have stayed for long in the EU is tied to guarantees that they will not become a burden on the host state. The Court has also engaged with the criterion of stable and regular resources. In the relevant case-law, it emphasized duration of residence as the central criterion of the Directive, which shows that the TCN has managed to put down roots in the host state.Footnote 138 Consequently, it held that while the concept of resources may be interpreted by analogy to the relevant concept in Directive 2004/38, it should have a different scope.Footnote 139 This is because first, the acquisition of the long-term resident status is definitive, so the interpretation of the resources condition should be in line with the purpose of preserving the social assistance system of the Member States.Footnote 140 Second, the text of the relevant provision mentions that resources should be stable and regular, compared to Directive 2004/38 which only mentions stable. In addition to these reasons of differentiation, AG Saugmandsgaard Øe added another one, on which the Court stayed silent.Footnote 141 That is the paradoxical formulation of the relevant instruments in a way that allows Member States to withdraw the residence permit of a EU migrant who no longer has sufficient resources if they do not have permanent residence status, while such withdrawal is not foreseen for long-term residents.Footnote 142 In view of this, the more exacting economic conditions for access to protection are based on the fact that the social protection enjoyed by long-term residents cannot be taken away when they become economically redundant. In this regard, the Court suggested that the relevant requirement meant that Member States could evaluate the resources on the basis of their nature and regularity, and this would imply an assessment of sufficiency and sustainability of resources, rather than an assessment of their origin.Footnote 143
The Court has also ruled on the conditions of loss of the relevant status. Article 9 of the Long-term Residents Directive provides that the status may be lost due to absence from the EU territory for a period of longer than twelve consecutive months. The Court has held that since the Directive creates a right to a status whose nature is permanent, the rules leading to the loss of such status should be interpreted strictly and that the physical presence of a migrant in EU territory is sufficient to interrupt their absence from the territory.Footnote 144 This interpretation was also supported both by the purpose of the Directive to bring the rights of long-term residents as close as possible to those of EU nationals and by the need to achieve legal certainty for the migrants concerned.Footnote 145
The social purpose of this Directive as a reason for more extensive protection has also been identified by the Court. In Commission v Netherlands, the Commission took action against the Dutch legislature, which imposed excessively high charges for the acquisition of long-term resident status.Footnote 146 AG Bot suggested that the margin of manoeuvre of Member States should be limited by the purpose and effectiveness of the Directive, and by respect for fundamental rights.Footnote 147 Relatedly, he pointed out the double purpose served by migrant integration under EU law: to promote social and economic cohesion by granting them rights, and to contribute to the attainment of the internal market by granting them mobility rights.Footnote 148 To the AG, the charges imposed by the Dutch legislation constituted an indirect means of limiting the exercise of the rights conferred by the Directive, and could lead to discrimination against migrants who did not have sufficient financial resources.Footnote 149 He also emphasized the comparability of long-term residents to EU migrants, and failed to see how such a difference in treatment would be justified on the basis of objective reasons.Footnote 150
In light of the arguments put forward by the Netherlands, the AG also had the possibility to elaborate on the rights created by primary and secondary law for EU and TCN migrants. Specifically, the Dutch government argued that a residence permit granted under secondary law created rights for the migrants, whereas a residence permit granted to EU migrants was merely declaratory.Footnote 151 The AG suggested that such a differentiation could no longer hold in line with the development of EU law.Footnote 152 While it is true that for EU migrants a residence permit has declaratory effect, the same is true for TCN migrants, in the sense that secondary law directly confers rights on them.Footnote 153 The Court emphasized the purpose of the Directive appearing in Recitals 4, 6, and 12, which is to contribute to the integration of migrants and to the effective attainment of the internal market as an area of free movement of people.Footnote 154 In line with the AG, it confirmed that the fulfilment of the conditions of the Directive created a right for migrants to obtain the long-term resident status. Member States cannot impose charges which are so high as to have the object or the effect of creating an obstacle for TCNs who are entitled to obtain that status, otherwise the objective and spirit of the Directive would be undermined.Footnote 155
Overall, the extensive interpretations of the Court on this instrument had two consequences: it ensured the social protection of long-term residents in the Member States, and it shaped the Commission proposal for revision of secondary law with closer attention to fundamental rights considerations.Footnote 156
9.3.5 Social Rights for Migrant as an Indirect Way of Promoting the Constitutional Elements of EU Law
Primary law on the regulation of migration does not create obligations on the substantive conditions that should inform migrants’ rights. The shared competence of the EU on migration is defined in the Treaties by reference to the areas where the EU can adopt legislation. At the same time, the Lisbon Treaty refers to fair treatment and solidarity as principles that should guide the adoption of such legislation. The Court has not referred to the relevant Treaty provisions when reviewing secondary legislation. Rather in the case-law analysed in the previous sections, the Court consolidated the rights of TCN migrants by reference to the Charter. Specifically, the Court consistently held that secondary law creates EU law rights for migrants, the limitations of which should be interpreted strictly and reviewed for compliance with the Charter.
At this stage, it should be noted that the Court has dealt with very few cases regarding the right of first admission of a migrant. In such cases it has been reserved. Despite recognizing the creation of a right to entry in accordance with the conditions of the relevant Directive, the Court does not normally push for review of state discretion. However, when it comes to migrants who are already in EU territory, the Court acknowledges the importance of fundamental rights protection for all individuals who fall within the scope of EU law. Such rights are extended in light of the Charter, which completed the constitutional architecture of the EU. In the relevant case-law, it can be argued that it is not only the social objectives of EU law that are promoted by the Court’s interpretation and emphasis on the Charter, but also the integration of the EU legal order.
By this, I mean that in the first years of the Community project, the Court used primary law with an emphasis on economic freedom as a means to promote the integration of Member States and to fortify the Community legal order in light of a constitutional end that was absent from the Treaty text.Footnote 157 With the political ambition of the EU project under stress, the failed Constitutional Treaty, and the reformed architecture of the EU legal system with the adoption of the Charter, the Court turned to another instrument that could advance integration, namely the Charter. It has consistently made use of the provisions of the Charter to review secondary law on migration and limit state discretion in an area of shared competence. The Court’s interpretation on the relevant secondary law is framing the space of fundamental rights policy exercised by the EU legislature. Both the revision of the Single Permit Directive and the proposed revision of the Long-term Residents Directive were presented by the Commission with stronger emphasis on fundamental rights protection for migrants in line with the case-law.Footnote 158
This approach of the Court stands in stark contrast to the interpretations followed on EU migrants’ rights, where it has accepted a consolidation of balancing of economic and social objectives by the EU legislature as expressed in Directive 2004/38. The differentiation could also be connected to the maturity of the legal framework on EU migrants, which has been constantly transforming since the 1960s. Secondary law on migration, on the other hand, is very recent. As shown throughout this historical investigation, it has developed in an ‘environment in which national jealousies and priorities are never far from the surface’.Footnote 159 In cases related to TCN migrants, the Court consistently reviews national law in light of a more positive vision of what individual rights should look like in a legal system whose constitutional architecture is completed by the adoption of the Charter.
This differentiated approach, however, has led to paradoxical interpretations in cases where the Court had to relate the rights of EU and TCN migrants. Maintaining the focus on case-law, Section 9.4 showcases the paradoxes that derive from the emphasis on the different status of EU and TCN migrants and the parallel acknowledgement that safeguarding the economy demands the limitation of rights for both categories.
9.4 Migrants, Citizens, Differentiation, and Incoherence
The analysis in this part revealed the different approach of the Court in its case-law on EU and TCN migrants during this period. Specifically, while the Court has accepted the balancing of economic and social objectives decided by the EU legislature regarding EU migrants, it has extensively interpreted the rights of TCN migrants in view of the constitutional architecture of the EU. In parallel, the analysis carried out throughout the book has shown that economic and social objectives condition the rights of both categories of migrants. While EU citizenship provisions have shown their teeth when it comes to rights claimed by migrants against their host state, the movement of EU migrants is very much conditioned by economic considerations, and so are the social rights they can claim. Similarly, the rights TCN migrants draw from secondary law are granted precisely in order to achieve the economic objectives of EU law.
The case-law of the Court has developed through the emphasis on the Union citizenship status as the normative foundation of the rights of EU migrants. Even in cases where such status cannot guarantee rights to economically inactive migrants, the Court still emphasizes its primary nature. At the same time, the Court implicitly, and its AGs explicitly, emphasizes that the rights of EU and TCN migrants are different in their nature.Footnote 160 While it is true that the rights of EU and TCN migrants are created under different legal bases and have a different normative outlook, this does not preclude cases where the rights attributed to both groups are of a similar extent and serve the same objectives. This is the case for family reunification rights of EU and TCN migrants, for example. In such cases, the emphasis on the fundamental status of EU citizenship and the different treatment for TCN migrants creates paradoxical outcomes which complicate our understanding of the EU fundamental rights protection system.Footnote 161
Exemplary in this regard is the decision of the Court in X v État belge, which demonstrates that the insistence on a differentiation of rights between EU and TCN migrants that is not reflected in secondary law, can adversely affects the potentials of EU citizenship, while at the same time it implicitly encourages Member States to undermine the rights of TCNs.Footnote 162 The case concerned the right to an autonomous residence permit for family members of EU citizens, when such family members are victims of domestic violence. Article 13 of Directive 2004/38 requires that the family members are either economically active or have sufficient resources and health insurance, while Article 15 of the Family Reunification Directive provides that the conditions for granting such an autonomous residence permit are provided by national law. The referring court suggested that the only thing that differentiates the conditions under which an autonomous residence right should be granted to a TCN victim of domestic violence is whether their spouse is an EU migrant or not. Due to this, it asked whether the relevant article of Directive 2004/38 should be invalidated as constituting a case of unequal treatment. The Court acknowledged that the two provisions established different conditions even though they shared the same objective – protecting family members who are victims of violence.Footnote 163 It then went on to examine all the elements of the relevant framework and to evaluate whether the autonomous rights of family members of EU and TCN migrants could be comparable. The Court found that, even though the specific provisions have the same objective, they exist in Directives that relate to different fields, principles, subject matters, and objectives. It emphasized the difference between the two categories of migrants, suggesting that beneficiaries of rights under Directive 2004/38 ‘enjoy a different status and rights of a different kind’.Footnote 164 However, it did not review secondary law on EU migrants for compliance with the Charter. Instead, it suggested that the paradoxical outcome which leads to the stronger protection for family members of TCN migrants is the result of Belgian law, which did not impose equally strict conditions for family members of TCN migrants, even though it had the discretion to.Footnote 165
This case is exemplary of the analysis of the Court in that it highlights the tensions inherent in EU law and case-law and the way it qualifies the rights of migrants. Instead of reviewing Directive 2004/38 for compliance with the Charter, the Court accepts the economic balancing that results in limitation of the rights of EU migrants and their family members. At the same time, it defers to national law to lower the standard of protection for TCN migrants and to ensure the more favourable treatment of EU migrants. And in general, it puts forward the Charter as a basis of review of national law on TCN migrants, when it consistently fails to invoke the Charter in relation to EU migrants.Footnote 166 Indeed, as Nic Shuibhne suggested in a different context, the Court’s case-law is characterized by a ‘hegemonic attribution of supremacy to secondary law, which fails to engage the constitutional protocols epitomising the Union legal order more generally’.Footnote 167 In the specific case analysed, the Court accepted as legitimate the standards of Directive 2004/38 without further examination of the relevance of the economic conditioning for victims of domestic violence. The minimum standards of protection are ultimately the ones dictated by the economic and social balance as it has taken place for EU migrants.Footnote 168
Essentially, in this period the dust settled. The EU project had been continuously on the road to transformation, as ingrained in the language of the Treaties, but it had also come a long way. Different actors came to different realizations, which affected legislation and case-law on migrants’ rights in the following way. The Council realized that it could no longer block admission and rights of TCN migrants because EU growth would be impossible to maintain without their labour. The Commission realized that the Council could not go as far as accepting the shaping of a supranational community whereby EU and TCN migrants alike would enjoy rights directly from the EU legal order. The Court also realized that integration could not only be promoted via law but also needed to find support in democratic processes, and for this reason deferred to the political balancing behind different instruments as legitimate balancing for the purposes of EU law. This does not mean that any effort for integration through law was blocked. During this period the Court proceeded in review of national legislation in light of the Charter in the same way that it employed economic freedoms provisions during the first period reviewed in Part I. With the coming of age of the EU legal order, fundamental rights provisions become a powerful integration technique.Footnote 169 This chapter thus concludes the historical overview of EU migration law from the establishment of the European Coal and Steel Community to the present. The persistence of the economic and social pillar of sustainability in the regulation of migration, as they were manifested in the language of economic and social objectives of EU primary law has been revealed throughout the historical investigation. The task of the remaining chapter, therefore, is to draw on the findings of this historical investigation so as to link the balancing of economic and social objectives behind the regulation of EU migration to the contemporary demand of sustainable migration and to conclude by discussing the potentials and limitations of an EU sustainable migration.
10.1 Economic and Social Sustainability in the Past of EU Migration Law
The task of looking back at the history of EU law in search for answers is a challenging one due to ‘the remorseless pace of development’ of the EU legal framework.Footnote 1 Positioning the time of doctrinal consolidation in the present, the analysis proceeded in a necessary critical reconstruction of the history of EU migration law. This concluding chapter will first summarize the findings of the historical investigation in this section and suggest that the problem behind the new objective of sustainable migration lies not so much in the effort to align migration with economic and social demands. This has after all been a constant feature of EU law as distilled from the historical investigation. Rather the problem lies in the way the economic and social objectives of the EU are perceived by different actors. Section 10.2 analyses the limitations that exist in the way EU law has historically aligned migrants’ rights to the economic and social objectives of primary law and reflects on what an EU sustainable migration can and cannot mean for the rights of migrants. Essentially this section highlights that structural features of the EU legal order set very clear limits in attempts to envision an EU sustainable migration law. Finally, Section 10.3 presents a vision of what an EU sustainable migration law could mean if the way economic and social objectives are considered was redirected and grounded on the current acquis.
On the findings of the historical investigation, already in the first period of Community law – reviewed in Part I – the existence of the economic pillar of sustainability was emphasized behind the attribution of rights to migrants, manifested in the language of economic objectives served by migration. This period was characterized by the reconstruction of Western economies. Free movement of factors of production, among which was labour, was necessary to spearhead the post-war growth of the founding Member States in the 1950s and 1960s. Next to Community migrants, guest workers and workers from former colonies supported the growth of Western economies until the oil crisis of the 1970s. At the time, Community workers and TCNs employed in European industries were attributed extensive rights pursuant to a clear acknowledgement that they were all equally contributing and participating in this project of growth. Equal treatment and raising the standard of living for all people who pursued a life in the EU – and who contributed with their work towards the achievement of social progress – was a non-issue.
The changing economic circumstances after the 1970s and the repeated enlargements of the EU and its continuous legal transformation nuanced the way economic considerations served as the basis of rights and promotion of social standards. Member States became more diverse: they were differently affected by the oil crisis, and they had different economic development levels and labour needs. In these circumstances, faced with the need to seal themselves off from the effects of transnational markets and with national unemployment on the rise, they attempted to close their borders and limit the rights of migrants so as to become unattractive destinations. The plan of the Commission, as expressed in legislative proposals published at the time, continued unhindered, with the hope that the effects of the crisis would be eventually overcome. During this period, positive action to promote the social objectives of the legal order was not really considered. The reason for this was a perception that economic growth would raise living standards for the population of Member States automatically. The attribution of social rights was considered in a superficial way, being mostly focused on equal working conditions to counter the economic effects of social dumping. Overall, during this first period, the economic objectives served by migration dictated the aligned treatment of all migrants due to a demand for equal treatment for all those who contributed to the development of the Community.
In the second period, reviewed in Part II, the appearance of economic and social objectives was more ambiguous. While the economic and social pillar of sustainability continued to determine the rights attributed to migrants, elements of differentiation between EU and TCN migrants were put in place in line with the ambition to create a political community. During that time, the promise of EU growth and the changing political landscape after the fall of the Berlin Wall created the impetus for closer integration and more consistent protection of the individual behind the factor of production. The aspiration of reuniting Europe put emphasis on turning the project of growth into a project of prosperity for the people of Europe. At the same time, economic worries of Member States blocked any attempt by the Commission to shape a framework that could regulate the rights of migrants in light of long-term economic needs and fluctuations. Member States via the Council deflected the issue of TCNs’ rights so as to maintain a semblance of control in case of fluctuations in national economies.
Regarding EU migrants, the political aspirations of the time led to the establishment of EU citizenship in primary law. However, economic concerns precluded the creation of a framework that would shape residence rights for EU migrants based on their importance for the EU polity in the making. This political aspiration was, nevertheless, considered by the Court. By insisting on the new fundamental status established in primary law, the Court significantly restricted the limitations set by secondary law regarding the rights of EU migrants. Taking the objectives of the EU project at face value, the Court also consolidated the protection of migrant workers regardless of their nationality, thereby promoting the social objectives of the EU. To do so, it maintained the approach developed in the case-law on Community migrants and extended it to TCN migrants as well, suggesting that equal contribution to the EU project required equal rights. This protective case-law was a cause of concern for Member States, who feared repercussions for their national economies. For this reason, their economic concerns appeared behind the limitation of migrants’ rights in the Association Agreements, concluded or revised at the time.
Next to the political aspirations for EU citizenship, the transformation of the EU project also demanded a closer pursuit of social progress, and relatedly more emphasis on the social pillar of sustainability. Even though legislation could not be adopted to extend the rights of EU migrants in light of their citizen status, legislation attributing rights to TCN migrants resident in the EU succeeded. The results of this legislation were not as far reaching as the Commission had hoped. Despite this, it managed to convince the Member States of the need to attribute at least a minimum set of rights to those who would not pose risks to EU growth, and to the extent that they would not pose such risks. This was the case with the Students Directive, the Family Reunification Directive, and the Long-term Residents Directive adopted at that time, which created EU law rights for migrants, even if such rights could be significantly limited by considerations related to economic reasons.
Finally, in the third period, reviewed in Part III, the transformation of the EU project was completed, and the way in which the economic and social pillars of sustainability appear behind the regulation of migration was consolidated. From a small Community of states, based on largely similar and interdependent economies, the EU developed into a political and economic Union comprised of Member States with different systems of social protection and different levels of economic performance. The enlargement of the EU in the new millennium consolidated a diverse mix of economic needs and ideals of social progress. In parallel, the labour needs of industries began to revive, and these were matched by demographic predictions of an ageing EU population that could not sustain growth. The failure to adopt the Constitutional Treaty put an end to aspirations of making something more of the movement of individuals, and the economic crisis of 2008 consolidated the need to always balance the rights of EU migrants against potential economic risks, even if such migrants were now called EU citizens.
During this period, sustainable migration became perfected in the rights enjoyed by EU migrants. Specifically, the balancing of economic and social considerations behind the rights of EU migrants meant that they could not enjoy unlimited residence rights by virtue of their status. Rather, when they migrate, their rights should be limited based on economic considerations. If they do not contribute to the EU project, they should at least not negatively affect the economies of host states. This consideration was consolidated in Directive 2004/38, and the balancing of individual rights against economic considerations was confirmed by the Court. At the same time, economic demands and demographic projections created the need for labour migration. Despite the Member States’ reluctance to harmonize migration law, it became clear that human labour was necessary not to spearhead growth, but rather to maintain it. As the Member States were very unequally affected by migration and not equally in need of migrant workers, a system of entry was created for those workers who were most needed: highly skilled workers (including researchers) and low-skilled workers. In this framework, social considerations demanded the incorporation of labour law standards in the employment of such migrants, and these are more extensive when it comes to migrants considered more vulnerable to exploitation. Fair treatment for TCNs translated into differentiated treatment to attract the migrants the EU project most needs, notably researchers and highly skilled workers. At the same time, the rights include very strict safeguards to avoid settlement migration for those that are only temporarily needed. What we witness in this period is also the emphasis of the Court on social rights for migrants in light of the Charter. While in the case of EU migrants, the Court has accepted the balancing of economic and social objectives carried by the EU legislature and does not invoke primary law or Charter rights as a basis for review, this is not the case for TCN migrants. In the relevant case-law, the Court has consistently invoked the Charter to extend the protection of the rights of migrants against attempts by Member States to curtail them.
The investigation identified the constant pursuit of the economic and social pillars of sustainability via the regulation of migration. The language of sustainability was not part of EU migration law until very recently. However, the economic and social pillars of sustainability have always found expression in the attempts of shaping an autonomous EU migration law as a legal system with specific characteristics. These characteristics are the attribution of rights to migrants because of their contribution to growth, the limitation of rights due to perceived risks to growth (regardless of whether such risks are evidence based or not), an emphasis on work-related rights as means to social progress without a broader conception of the individual behind the economic actor, and the incorporation of clauses to guarantee that there is always a safety valve to stop migration in case of threats to the economy. A more detailed explanation of how economic and social considerations manifested themselves in law-making and adjudication in Sections 10.1.1 and 10.1.2 will further reveal the centrality of sustainability in the development and interpretation of EU migration law.
10.1.1 Economic and Social Considerations in EU Law-Making
A preliminary point to be raised is that EU law does not channel ‘a prior general political authority and its integrated sense of the public good’.Footnote 2 Rather it is a means to stabilize the commitments of Member States to achieve ‘various complex public goods under a new transnational political authority’.Footnote 3 For this reason, the way economic and social considerations are taken into account and are channelled into laws varies for different institutional actors.
The Commission is the only actor insistent on achieving long-term economic and social development for the EU. It has consistently shown a proactive stance on the attribution of rights to migrants with the aim of shaping EU instruments that can align migration with the objectives of growth and progress, thus implicitly promoting an EU sustainable migration during all the years of its legislative activity. In the regulation of entry for TCN migrants, the Commission has emphasized the need to guarantee the more efficient allocation of resources and the proper functioning of the EU economy. Each proposal the Commission issued included safeguards that could guarantee the functioning of such system, including in cases of recession. In addition, the attribution of social rights to migrants has also been constantly suggested. While originally this attribution of rights was based on the contribution of the migrant to the economy and had the purpose of minimizing unfair competition in the labour market, after the 1990s the Commission has focused on the necessity of attribution of rights to promote social cohesion across EU territory and to thus allow for more socially sustainable societies. In parallel, the Commission put a lot of emphasis on long-term approach to the regulation of migration. Despite this, in the final period examined, the Commission has become more realistic, in the sense that it suggests proposals which can secure some minimum support of the Council, rather than proposals that are actually geared towards achieving economic and social sustainability by the regulation of migration. This was the case with the regulation of admission, where even though the Commission consistently acknowledged the horizontal regulation of admission as the ideal system, it continued to pursue sectoral regulation of the matter, as it became clear that it cannot gather support for horizontal measures.Footnote 4
In contrast to the Commission’s approach, the Council takes into account economic considerations related to the specific circumstances at national level. In doing so, it does not differentiate between EU and TCN migrants, but rather relates migration as such to the economy of the Member States. Relating migrant rights to the achievements of economic objectives was emphasized only during the years prior to the oil crisis. Thereafter the Member States have repeatedly acknowledged the need to commit to the common project of growth in political declarations, but when it comes to the negotiation of specific legal instruments, the focus turns to ensuring economic and social growth in the short-term and within each national setting. This largely explains the struggle behind the adoption of a framework regulating migration from third countries. In a sense, this dissonance between the Council and the Commission also points to the limits of solidarity between Member States when the EU project does not deliver unhindered growth for all the members of the club.
The problem is aggravated by the fact that economic considerations in the Council are shaped by the immediate economic circumstances on the ground, with no thought to how to align migration with future needs of national economies. In contrast to the long-term planning demanded by sustainability, the Council has been particularly short-sighted when addressing migration. Furthermore, even though the Council is supposed to reflect the collective political interests of Member States in the common EU project, national considerations predominate. Especially regarding TCN migrants, when Member States are up against national unemployment or recession, it is impossible for them to agree on any migration-related measure that could lead to the attribution rights. This is, of course, also connected to the shared competence on migration and the fact that even if Member States can foresee the demand for workers, they know that they can fulfil this demand through national migration law measures. In this context, the creation of EU rights for migrants can only cause tension in national politics. In addition to the issue of shared competence, the approach of the Council, as attested in the analysis, is tied to what Neyer has identified as institutional deficiencies of the European political order, according to which the political discourse in the Council does not identify with the integration process and is rather catered to domestic interests.Footnote 5
Hence, even though there has been no evidence to support the negative effects of the different Commission proposals on national economies (as was the case in the context of enlargement, in the case of social rights of EU workers in the new millennium, and in the case of mobility rights for TCNs), the Council cannot reach an agreement. As to the social objectives, once again, the focus is rather on the national level. It is at the national level that the Council considers how to promote social cohesion or how to fight national unemployment, covering labour demands with little to no concern as to how to align national approaches with the transnational aspirations of collective economic growth and social progress.
Finally, the Parliament, especially in the second period, but also throughout the examination, has put forward a rights-based approach as a means to promote the social conditions across EU territory. It also seeks to advance political ideals of including all residents in the Member States in the project of peace and prosperity. This does not seem to deliver much when it comes to the legislative proposals, which are all eventually restricted by the Council. Having seen how economic and social considerations are expressed by different EU actors and channelled into EU law-making, Section 10.1.2 turns to how these considerations are reflected in the case-law and reveals the particular use of economic and social objectives by the Court to progress integration. Looking at these two sections together identifies the centrality of economic and social considerations for all institutional actors and shows the pursuit of sustainable migration as an objective even before the explicit appearance of the term in EU policy discourse.
10.1.2 Economic and Social Considerations in the Case-Law
The analysis carried out in this book fits well with earlier scholarly examination of the Court as a political actor and claims related to judicial activism. Such claims rest on two contrasting positions described by Dawson.Footnote 6 There is a liberal position which suggests that the role of the Court in promoting EU integration is politically empowering for the individual.Footnote 7 By empowering individuals to enforce their rights under EU law, the Court is providing individuals with access to the law, and thereby opens new political pathways.Footnote 8 At the same time, there is a second, republican view on the social role of the law.Footnote 9 This view entails that courts should express and carry forward the views of a political community as mediated in the legislation, rather than protect and empower individuals. As Dawson suggests, what is considered the proper judicial function in the liberal position becomes an ‘usurpation of power’ in the republican position, where individual rights and legal entitlements are utilized to overturn the settled preferences of a political community.Footnote 10 It is under this reading that the Court can be understood as a political actor, and it is in this context that the Court has been seen as ‘activist’ in judicially settling questions that should be balanced and decided in political arenas.Footnote 11
The liberal position on the role of the Court has been supported by members of the Court. Former Judge and Advocate General Mancini has proudly suggested that the case-law of the Court in the early years of Community law coincides with the making of a constitution for Europe.Footnote 12 Acknowledging that the Treaty framework could not be seen as a constitutive act, Mancini described the endeavour of the Court to constitutionalize the Treaty as being ‘to fashion a constitutional framework for a federal-type structure in Europe’.Footnote 13 Mancini himself admits a degree of activism on behalf of the Court in using law to foster the integration of Europe.Footnote 14 This acknowledgement fits squarely with the scholarly analysis of the central role of the Court for the construction of the EU legal order as an integrated constitutional order.Footnote 15 Looking at the role of the Court in the process of legal integration, Burley and Mattli suggested in the 1990s that its action fits a neofunctionalist model of integration where judicial actors can advance a political agenda.Footnote 16 By political agenda, Burley and Mattli meant a pro-European agenda, and they argued that the Court had promoted the role of individuals by giving them a stake in the implementation of Community law only in such ways as would promote Community goals.Footnote 17 In their work, they tie the political and activist stance of the Court to promoting the visibility, effectiveness, and scope of EU law, as well as the power of the Court, while at the same time ‘presenting itself as the champion of individual rights and the protector of the prerogatives of lower national courts’.Footnote 18 This analysis, as well as the literature examining the Court as a political actor, fits well with the findings of the present investigation and reveals that the Court has used economic and social objectives at different points in time as a means to progress integration.
Specifically, in the early years of the Community project, economic objectives dominated the reasoning of the Court. The extensive creation of rights for Community and TCN migrants was based on the contribution of the individual to the project of growth, as shown in Part I. Even in cases where such contribution was minor, the Court emphasized how the economic objectives of the project can be served by the attribution or extension of rights of migrants. The political aspirations of the EU affected the case-law during the second period, as demonstrated in Part II. At the time, there was an emphasis on the ‘ever-closer Union of peoples’ goal in order to extend rights beyond the economic function of EU migrants under their new citizen status. During the third period examined in Part III, there is a consistent reliance on the Charter in cases concerning TCN migrants, not driven by an economic logic, but with the aim of promoting social objectives in a legal system that recognizes the need to attribute rights to all individuals who come within its scope. At the same time, the political aspirations for a Union of peoples appear in a confusing way. While the Court acknowledges the limitation of rights of EU migrants in light of the balancing of economic and social objectives undertaken by the legislator in Directive 2004/38, it has used the political aspirations to establish a differentiation between EU and TCNs on a discourse level. Even in cases where Directive 2004/38 sets less favourable conditions for the rights of EU migrants compared to the rights of TCN migrants on family reunification, the Court emphasized the political goals of the EU for its nationals, and did not examine whether secondary law can stand review under the Charter.Footnote 19 It also emphasizes the rights of EU migrants qua citizens, but it no longer invokes primary law to extend their access to social rights. Rather, the Court defers to the balancing carried out by the legislature, and does not try to trump the limitations of Directive 2004/38 with a broader interpretation of either primary provisions on citizenship or the Charter.Footnote 20
Looking at the evolution of the case-law, we need to bear in mind that the more progressive rulings of the Court presented in Part II took place at a time when Treaty provisions demanded non-economic free movement rights for EU citizens, while secondary law giving effect thereto was adopted prior to the relevant Treaty amendments. Directive 2004/38 came into effect after the Treaty provisions established such rights, and hence expressed the clear will of the legislature to set limits on the social rights of EU migrants qua citizens. This limitation by the legislature, which has led to what Muir called a deconstitutionalization process, brings to mind another comment made by scholars emphasizing the political role of the Court.Footnote 21
According to Burley and Mattli, to enhance and preserve the power of the Court, ‘they [judges] must preserve and earn anew the presumed legitimacy of law by remaining roughly faithful to its canons’.Footnote 22 This means that the Court needs to stay within the boundaries of existing law. Mancini similarly suggested that as democracy advanced and politics (meaning EU politics) asserted its claims, judges should take a step back, otherwise they risked becoming ‘so embroiled in the passions’ that they could harm their independence.Footnote 23 Related to this, Terpan and Saurugger have suggested that since the 1990s, the Court has been exercising self-restraint in its adjudication, also hinting that in the relevant period there was no longer a permissive consensus on the part of the Member States.Footnote 24 Keeping this in mind, what should we make of the much more consistent approach of the Court on using the Charter as the benchmark of review in cases concerning TCN migrants? In these cases, I argue that we can see the Court being political by using the cases on TCN migration to promote the power and strength of the Charter and, thereby, to constitutionally perfect an integrated legal order. As Mancini has suggested, self-restraint does not mean strict constructionism in the interpretation of EU law.Footnote 25
In this intricate mix of self-restraint and striving to achieve further integration, we see that just as the Court is deconstitutionalizing the rights of EU migrants qua citizens, it is constitutionalizing the rights of TCN migrants. When it comes to TCN migrants (either as family members of EU migrants or as individuals coming within the scope of EU law), the Court never misses a chance to use the Charter as a means to strengthen the protection afforded by the secondary legislation in place and, relatedly, to consolidate the position of the Charter in the constitutional architecture of the EU law. As Muir has suggested, the review of compliance of legislation with fundamental rights appears as a powerful integration technique.Footnote 26 This is because, as she argues, ‘by merging the content of legislation and autonomous concepts having primary law value, the Court circumscribes the possibility for EU political institutions to define the format and limits of EU fundamental rights policy through legislation’.Footnote 27 Muir’s point was made in relation to other areas of EU law, but finds equal application in the case-law regarding rights of TCN migrants examined in Section 9.3, where the interpretation of the Court with an emphasis on the Charter is now channelled in proposals for revision of secondary legislation.Footnote 28
Overall, the analysis carried out in this book has shown how in the first period of aligned paths, economic aspirations drove legislative openness on migrants’ rights. In the second period of political aspirations, the slow resurgence of growth matched with an anticipated enlargement of the EU (and the addition of working population) pointed to legislative closure and differentiation between EU and TCN migrants. In the third period of realization, failed political aspirations marked the economic conditioning of the rights of EU migrants and the set-up of an incoherent framework on the rights of TCN migrants. Throughout all these periods, the Commission has been proactive, while the Council has been reactive, or even destructive. This is so especially if we consider the way in which it has downgraded protection in all relevant secondary law on the rights of both EU and TCN migrants, and renegotiated International Agreements to limit the effects of EU law as construed by the Court. The Court, on the other hand, has been consistently reconstructing the rights of migrants. This reconstruction of migrants’ rights takes place not in light of what the EU should become, but rather in light of what it currently is under the Treaty framework, complemented with a binding Charter, which provides sufficient basis to consolidate the constitutional architecture of EU law. The approach of all these institutions, as it derives from the past seventy years of EU migration law, is not without gaps and paradoxes. Potential ways of addressing these and framing an EU sustainable migration law are discussed in Section 10.3. Before going into that, Section 10.2 engages with the limitations that appear in the current system.
10.2 The Inherent Limits of an EU Sustainable Migration
The critical historical study conducted in this book showed that EU migration law was never meant to be inclusive, in the sense of linking migrants to a transnational legal order and creating a civic post-national membership.Footnote 29 Many authors have argued that EU migration law has been shaped on the exclusion of different people for different reasons.Footnote 30 This book contributes to the relevant literature by suggesting that another reason for exclusion is the economic function of the migrant for the EU development project. The EU legal order is shaped around the constant pursuit of growth and progress. In this regard, an EU sustainable migration is doomed to have little room for those who cannot contribute to the project of growth.
In Section 1.3.2, I suggested that the minimum core features of sustainability are its economic, social, and environmental pillars; a long-term approach; and inter- and intra-generational justice demands. Questions on justice and its relation to the EU have been picked up by scholarship and this contribution does not aim to examine them in depth.Footnote 31 Various scholars have engaged with the possibilities and limitations of imagining distributive justice in a transnational setting.Footnote 32 Among them, Williams has suggested that, while the EU discourse includes occasional references to solidarity, economic cohesion, and social justice, there is no political or constitutional obligation for the EU to coordinate any process of redistribution of resources within or outside its borders.Footnote 33 Drawing on different theoretical contributions, this section shows how questions of justice and social and economic sustainability appear in the current form of EU migration law by identifying three limitations related to the EU’s pursuit of growth, the way EU law attributes rights to migrants, and the position of migration law in the EU legal architecture. To put it simply, this section highlights how sustainable migration might be an accurate term to describe parts of EU migration law, but it has not ensured that the legal framework is a just one.
On the first limitation, the historical study highlighted the close connection between the extent to which rights have been attributed to migrants by the EU and the existence of growth. This emphasis of the EU on growth has been identified by Somek as having the implication of shifting the discussion away from the political control of the economy.Footnote 34 The claim to inclusion through rights, he argues, does not extend to political concerns over the basic distributive structures; it rather takes them for granted.Footnote 35 Similarly to Somek, Wilkinson has transposed Streek’s dilemma between market justice (in the form of inclusion via equal opportunities) and social justice (in the form of redistribution) to the EU, suggesting that after the golden age of post-war growth, the ‘equilibrium between capitalism and democracy has become more difficult to maintain’.Footnote 36 In this book, we have seen how the only years in which the Commission could, in one way or another, make the case for a harmonized migration system that would provide for equal treatment of EU and TCN migrants was before the 1970s oil crisis. The economic circumstances from the oil crisis to this day, and the extension of the EU to cover very diverse economies, make the slightest consideration of ever returning to the post-war growth years impossible. Wilkinson’s suggestion was put forward to support the contention that questions of justice in the EU should be resolved by adding political justice to the debate; this would allow democratic space to question the preference for market justice embedded in the EU system.Footnote 37 In addition to his suggestion, which is supported by other scholars, I would also add that we should reconsider whether the EU project can deliver growth to begin with.Footnote 38 The limited potential of considering the attribution of rights to migrants at times when there is no growth and the limited potential of reconsidering growth as the ultimate EU law objective point to the inherent limitations of EU migration law.Footnote 39 With the current emphasis on growth, it is hardly imaginable that EU migration law has any potential to change.
The second limitation of EU migration law relates to the conception of individual rights under EU law.Footnote 40 The analysis highlighted the intimate link behind the attribution of rights to migrants and the effects of such rights on growth. Linking rights to broader questions of justice, Somek has suggested that in a transnational market setting, the distribution of resources becomes irrelevant, and the relative treatment of individuals and equal opportunities are afforded central place.Footnote 41 Looking at the market to correct inequalities, the concern is not on redistribution, but rather on equal access to opportunities.Footnote 42 In the EU context, questions of justice become questions of rights, with an emphasis specifically on non-discrimination.Footnote 43 In such a set-up, human rights do not need to be followed by strong legislative measures and can be promoted judicially by courts. The emphasis on inclusion in the form of rights attribution, as suggested by Somek, is apparent in the development of EU migration law. This development has been based on the attribution of mobility and equal treatment rights to people as a means to achieve social progress. Given this, the maximum level of inclusion of migrants under EU law can be achieved by attributing rights to those who do not negatively impact growth (by being self-sufficient and not having recourse to the social assistance system of Member States), but making the case, legal or political, for demanding inclusion (in the form of residence rights and corresponding social rights) for TCN migrants would be challenging. As Somek suggested, migrant workers’ geographic movement attests ‘the inclusive growth of capitalism’.Footnote 44 At the same time, people who would like to move to be part of this inclusive growth are faced with what Somek calls the most elementary obstacle, namely lack of access to a society to begin with.Footnote 45 In the current form of EU migration law, it would be extremely challenging to make the case for a right to entry or residence of economically inactive TCN migrants. Such a case could only be made in relation to migrants who have already contributed to the project of growth (like long-term residents and former workers). It is important to understand that whatever EU migration law will look like, it will always exclude those who cannot contribute – that is, unless the core parts of this legal system are amended.
A final limitation of an EU sustainable migration comes from the institutional structure of the EU and the conferral of powers. The analysis showed that only during the first period did economic and social objectives drive a positive development of the EU legal system. The similar development levels of the Member States and their common need for migration led to a common approach on how to best achieve economic and social objectives. After that period, unequal development levels and repeated economic challenges have turned Member States to considering how to best achieve economic and social objectives in closed national communities. The issue here is not (or is not mainly) the balancing of economic and social objectives, but rather the Member States’ understanding of how their national objectives relate to the EU ones.Footnote 46 The problem behind achieving an EU sustainable migration lies not so much in the efforts for reform, as in the inability of Member States to perceive migration as an area of collective concern. The Commission has time and again brought consistent proposals on the negotiation table that would allow the regulation of migration to serve the economic and social objectives of the EU legal order in view of long-term needs of national economies.Footnote 47 The inability to garner support for such proposals is connected both to the shared competence of the EU in the area of migration and to the lack of social legitimacy of the EU in the eyes of national electorates.Footnote 48
The shared competence of the EU on migration means that Member States can eventually admit the labour they need to keep their economies running via national migration schemes. This allows them to individually cover labour demands and to achieve the needed growth without regard to growth on the collective level. The existence of such national frameworks, which do not guarantee sufficient rights to migrants, creates barriers to the development at EU level. Where a position could be filled internally by the movement of a resident TCN from one Member State to another, this is now subject to barriers and delays that make it no different from entering the EU for the first time. At the same time, the pursuit of growth at state level is not always matched with considerations of promoting the social rights of migrants under national laws.
Regarding social legitimacy, the balancing of economic growth and social objectives has led to a situation where EU migrants have no claim to residence or social protection if they do not contribute to the EU economy. In addition to this, EU nationals who have not left their Member State can be subject to reverse discrimination and they are excluded from the scope of EU law. These situations are the outcome of a very specific balancing of economic and social objectives that lie behind the pursuit of sustainable migration applicable in the free movement framework. If this free movement framework was indeed discussed and understood as a sustainable migration framework, it would not lead to lack of social legitimacy. However, this framework is linked to and part of a completely different institutional discourse and aspiration of creating a political Union for the people of Europe.
Somek has suggested that the European support of freedom of choice (in the form of economic rights) was accompanied by ‘a vague Durkheimian hope’ that it would create solidarity on the basis of market transactions.Footnote 49 The lived experience of those excluded from EU law has revealed the failure to create such transnational solidarity; it has fractured the social legitimacy of the EU and shaped space for Eurosceptic tendencies.Footnote 50 Like Somek, Neyer has also pointed out that the legal and institutional set-up of the EU is made for supporting liberalization rather than social integration.Footnote 51 This set-up, paired with the fragmentation of political authority of the EU and the disempowerment of political competence at national level, means, according to Neyer, that EU politics are usually driven by national concerns of Member States, rather than addressing pan-European problems.Footnote 52
In sum, we see the specific limits to how migration law could be sustainable for the EU. These limits stem from the emphasis on growth as the driving force of rights (and the limitation of rights when they can no longer be instrumental to sustaining growth), the emphasis on rights geared towards achieving growth (versus broader concerns with social justice), and the structure of the EU legal and political system. Nor are these limits peculiar to migration: they relate to the political, economic, and institutional set-up of the EU. The question that naturally arises is whether there is a possibility to overcome some of these limitations – at least partially – by considering how the rights of TCN migrants might develop with closer consideration of the economic and social sustainability objectives of EU law.
10.3 The Realistic Potential of an EU Sustainable Migration
Section 10.2 discussed three specific limitations of EU migration law and of the broader EU architecture. Despite these limitations, there is still some room for evolution in the EU’s pursuit of a sustainable migration. To go further than demonstrating the historical embeddedness of social and economic sustainability in EU migration law, an embeddedness which is also reflected in Article 3(3) TEU, and to apply the system-theoretical understanding of sustainability in the framing of an EU sustainable migration, would entail three requirements that are at present absent. First, that migration law should respect the function of the EU legal system in delivering the promised objectives of growth and social progress. Second, that migration law should be shaped with a view to long-term considerations (both in relation to the fluctuations of the economy and to the position of migrants in a society) to be able to address external stress caused to the system. And finally, that migration law should be able to respect the structure of the legal system in terms of horizontal and vertical division of competences.
Connected to the system-theoretical understanding of sustainability, a substantive question arises related to the place of justice as part of sustainability. Drawing on the work of Douglas-Scott and her proposal on employing human rights and Critical Legal Justice as a legal toolbox that can offer mechanisms to the EU to avoid injustice, without however offering an ideal, transcendental theory of justice,Footnote 53 there are ways in which migrants’ rights could be extended and consolidated in a way that is better aligned to the pursuit of sustainability.
The first necessary action would be to amend secondary law so that it can better serve both economic and social objectives under long-term considerations. Account should be taken of the long-term economic fluctuations in the Member States and, relatedly, the fluctuations in labour demand that need to be effectively addressed by migration, as well as the place of migrants in future EU societies. The most far-reaching change would be the horizontal regulation of admission for all categories of migrants and the recasting of the sectoral regulation currently in place. The current legislative initiatives of the Commission paired with the failure of similar attempts in the past make such a scenario unlikely.Footnote 54
Removing this proposal for change from the table, other more limited changes could have far-reaching results. One of these would be to demand more favourable conditions for the mobility of migrants. In general, effective mobility rights for all legally resident migrants make sense in terms of aligning migration to the economic objectives of the EU, and such an amendment would not go further than primary law provisions.Footnote 55 It is aligned with the provision of Article 79(1) TFEU as it would lead to more efficient management of flows, while it would also give substance to Article 45(2) CFR. Such a change would also be aligned with solidarity demanded under Article 80 TFEU. In 1961, when the first framework of free movement was introduced, with significant clauses limiting the rights of EU migrants, Lionello Levi Sandri suggested that the rights attributed to EU migrants derived from the ‘new spirit of European solidarity’.Footnote 56 It was presented as a concession made by the Member States with a view to creating a labour market which would ensure the best use of the Community’s human potential.Footnote 57 It is easy to see how true and effective mobility rights for TCN migrants resident in the EU could fit with interstate solidarity based on the promotion of the economic objectives of this legal order. This time the EU’s human potential would extend to cover not only EU migrants but also TCN migrants resident in the Member States. The suggested revision of the Long-term Residents Directive could have been a first step in that direction; however, the emphasis of the Member States on maintaining economic limitations to the exercise of mobility rights through the labour market test will limit any significant transformation of the status quo.
Moreover, the framework of protection of rights of TCNs and the differentiation it introduces based on how much a migrant is needed should also be revisited. It can hardly be imagined that fair treatment as demanded by Article 79(1) TFEU implies differentiated attribution of rights based on how crucial a migrant is for the EU economy. The attribution of more rights to migrants who are urgently needed is both arbitrary and out of line with a long-term planning around migration law. We might know what type of migrants the EU economy needs today, but we cannot predict what type of migrants will be most needed in the future. In this context, the revision of the Single Permit Directive is welcome, but more work needs to be done to reach the extensive scope of equal treatment, family reunification rights, and access to long-term resident status enjoyed by highly skilled migrants.
Arguing for the extension of social rights of TCNs, however, is more challenging. If we look at EU migrants, the Court has acknowledged that financial solidarity among Member States dictates the attribution of social rights to them.Footnote 58 By engaging in a common project of growth, Member States have accepted that they may have to incur the costs for an EU migrant because of the economic benefits they collectively derive from the EU project. After all, a host state’s citizen can migrate to another Member State, too, and will enjoy benefits there. This case for financial solidarity, no matter how strong, has not gone very far since the 2004 enlargement of the EU. If anything, the diverse nature of Member States’ economies set the basis for limiting social rights of EU migrants to ensure that the strong welfare states of the West and North would not have to carry the burden for the migrants from the South and East. Regardless of whether this claim had any factual basis, this narrative redefined the degree to which EU states are ready to recognize a full extension of social rights even to the nationals of Member States who are already part of the collective project of growth.Footnote 59 It is in this limitation of social rights due to economic considerations that we can see a model of sustainable migration perfected in the free movement framework through Directive 2004/38.
The attribution of social rights to TCN migrants can be based on their contribution to the project of growth. However, an extension of social rights in a way comparable to those of EU migrants is definitely harder to justify. That is because the states of origin of TCN migrants are not directly involved in the EU project of growth. In Chapter 4, I analysed the extension of social rights to migrants originating from states associated with the EU and engaged in trade or economic cooperation. The interdependence of their economies created the basis for attribution of rights. However, after the setting in place of an autonomous EU migration policy that attributes rights to TCNs based on their residence, such clauses have disappeared. One might also say that they are no longer needed. How would such an inclusion be justified? In this case, it could only take place by a commitment to advancing the social objectives of the EU project in line with the approach followed by the Court, and with a stronger emphasis on human rights as a tool not only for progress but also for integration of the migrant in the national community under a long-term view of the place migrants will occupy in future EU societies.
In any case, shaping migration law that is sustainable for the EU legal system is bound to meet resistance, due the different development levels of the Member States, their different needs in migrant labour for economic gains, and the different ideological approaches to migration highlighted by populist trends in the past decade. In this context, the problem-solving capacity of positive integration at EU level could be stymied by non-negotiable conflicts between national and supranational actors.Footnote 60 The Court has the potential to reconstruct and consolidate the rights of migrants. The direction of its rulings during the period reviewed in Part III point to this conclusion. However, more clarity and coherence would be required when doing so, to also advance legal certainty and to thereby promote justice as suggested by Douglas-Scott. This reconstruction would continue on the path of rights as equal opportunities presented earlier with the corresponding limitations for broader social justice demands. It might not be the ideal option, but it is the only realistic one, considering how the EU legal system is shaped.
10.4 Conclusion
Overall, the book set out to investigate how the economic and social pillars of sustainability, as historically conveyed in the economic and social objectives of the EU legal order, have shaped migrants’ rights in EU law. Starting from the inconclusive appearance of sustainable migration as a new objective for EU migration law and by conducting a critical legal historical study, I have demonstrated how the economic and social pillars of sustainability are embedded in the establishment and evolution of EU migration law. In addition, my analysis showed the inherent limitations of the pursuit of an EU sustainable migration for migrants’ rights under EU law.
I hope that the investigation concluded in this book will inspire a closer interrogation of the concept of sustainability and its interplay with different EU legal norms. Instead of unquestionably following EU institutional discourse and integrating new policy concepts into legal writing, there is value in focusing intellectual inquiries on the extant legal framework and questioning whether there is anything new under the sun. At the same time, the close examination of the economic and social pillars of sustainability and their relation to migration can prove crucial for the extension of migrants’ rights. Maintaining the focus on migration for economic growth can only get us so far. It is particularly important to extend the social and mobility rights of TCN migrants if we are to achieve socially sustainable societies.
Open access