Journal of Ethnic and Migration Studies (JEMS)
ISSN 1369-183X

Volume 24 Number 4 October 1998

Special issue, in association with the European Forum on International Migration 97–98, European University Institute, Florence: The European Union: immigration, asylum and citizenship
Guest editor: Adrian Favell

Articles
Reviews
Abstracts

Following the Amsterdam Treaty, the European Union strengthened its competence over the legal status of nationals from non-member states and questions of asylum. It has also been giving more attention to the development of European citizenship. But what kind of immigration regime is likely to be constructed? Are ‘third country nationals’ likely to benefit from free labour movement or other benefits of this citizenship, or will they be accorded minimal rights? Are the voices of migrants heard in Brussels and with what effect? How will anti-discrimination legislation develop at the European level? These and other similar questions are raised in this special issue by leading commentators from law, political philosophy and political science. The ten essays included are:

Articles

Reviews

Abstracts

Competence, discretion and third country nationals: the European Union’s legal struggle with migration
Elspeth Guild

Abstract With the Amsterdam Treaty the European Community has been granted a wide competence over the treatment of third country nationals seeking to come to or become resident in the European Union. This includes third country nationals who are seeking asylum in the territory of the Union. How this new competence will be exercised and what the results will be are still unclear. In this article I argue that there is a consistent approach in Community law towards migration which has developed from the principle of free movement of persons which has constituted an objective of the Community since the first Treaty in 1957. In the exercise of these powers the Community, as regards nationals of the member states, has devised clear rules which provide a maximum of choice to the individual at the expense of member state discretion. Can a consistent and coherent approach be applied towards third country nationals either within the territory of the Union or seeking to enter? This challenge which arises with the Amsterdam Treaty is considered here from an historical perspective.

(Journal of Ethnic and Migration Studies Vol. 24 No. 4: 613–625, © 1998 Taylor & Francis Ltd.)

Asylum in the Amsterdam Treaty: a harmonious future?
Joanne van Selm-Thorburn

Abstract The Amsterdam Treaty is set to bring about various changes both in the way asylum and immigration policies in the EU are developed and in their position in the overall picture of European integration. This article traces the development of European level cooperation on asylum matters through four phases, focusing on that oft-stated, but as yet unmet, goal of harmonisation. For all its changes the Amsterdam Treaty looks like a missed opportunity for serious progress in asylum matters, not just for the states concerned, but also for protection-seekers and Europeans seeking to maintain humanitarian standards. Above all, in seeking to create an undeveloped notion of freedom, security and justice in Europe, it appears that the member states and Commission yet again are in a situation of barely managing the present, while blindly planning for the great unknown of tomorrow.

(Journal of Ethnic and Migration Studies Vol. 24 No. 4: 627-638, © 1998 Taylor & Francis Ltd.)

European citizenship and immigration after Amsterdam: openings, silences, paradoxes
Theodora Kostakopoulou

Abstract European Union citizenship, as a form of citizenship beyond the nation state, entails the promise of the formation of a heterogeneous and democratic European public, empowering citizens and ethnic residents. Notwithstanding this promise, the 1996 intergovernmental conference that culminated in the Treaty of Amsterdam (signed on 2 October 1997) did not extend the personal scope of Union citizenship to include long-term resident third country nationals. Other substantive reforms, however, such as the inclusion of an anti-discrimination clause, the institutionalisation of the right to information, the strengthening of democratic accountability and the enhanced respect for human rights, all improve the rights of citizens, and ethnic migrant residents and members of other disadvantaged groups generally. The partial communitarisation of the third pillar has furnished the basis for a Community immigration and asylum policy that is subject to increasing democratic and judicial control. However, it has also opened the way for the installation of exclusionary categories and the ‘security’ narrative on immigration control, which has largely characterised the third pillar within the system of Community law.

(Journal of Ethnic and Migration Studies Vol. 24 No. 4: 639–656, © 1998 Taylor & Francis Ltd.)

Third country nationals and European law: obstacles to rights’ expansion
Virginie Guiraudon

Abstract This article examines the texts and jurisprudence of European institutions such as the Council of Europe and the European Union regarding foreigners (third country nationals in the case of the EU) and their incorporation by courts and administrations in France, Germany, and the Netherlands. The evidence suggests that both the European Court of Human Rights and the European Court of Justice had a limited legal basis and unclear competence to rule in the area of foreigners' rights. Notwithstanding, when they did, their rulings were partially taken into account. This required a number of conditions such as a positive attitude towards international law and a litigation strategy on the part of migrant aid groups.

(Journal of Ethnic and Migration Studies Vol. 24 No. 4: 657–674, © 1998 Taylor & Francis Ltd.)

Immigration and the state: the devolution and privatisation of immigration control in the EU
Gallya Lahav

Abstract This article examines the theoretical framework of the debate over sovereignty in the European Union and the state’s powers of immigration control, adopting a neo-corporatist approach to assess the role of the state and its interlocutors in migration regulation. It provides an overview of three sets of third party agents incorporated in migration regulation by EU member states: international, private and local actors. In focusing on the institutional structures and norms that have emerged – or rather been reinvented – in the 1990s, the analysis connects with the broader questions raised in this special issue: namely, to what extent do these institutional forms open up new channels and opportunities for state regulation over migration? The dynamics behind these processes are briefly examined, particularly from the view of the state. What are the incentives/constraints and costs/benefits that keep these processes in motion? Finally, the conclusions draw implications for both state control and migration outcomes in the European Union. They suggest reinvented forms of state control and exclusion which may simultaneously generate diverse local outcomes.

(Journal of Ethnic and Migration Studies Vol. 24 No. 675-694, © 1998 Taylor & Francis Ltd.)

The representation of ‘migrants’ interests’ in the European Union
Andrew Geddes

Abstract What impact does European integration have on the scope for representation of migrants’ interests in EU level decision-making processes? This article explores this issue by examining the development of legal, political and institutional responsibilities at EU level that have emerged to manage a range of immigration and asylum-related issues. The article then explores the components of a pro-migrant interest group agenda that has started to develop at EU level and the avenues for representation open to such groups. Their activity and effectiveness is related to the frame for political action provided by the new configuration of responsibility within the EU for immigration and asylum policy. This does present some opportunities for pro-migrant interest group mobilisation, but also places limitations on the chances for success of such action.

(Journal of Ethnic and Migration Studies Vol. 24 No. 4: 695–713, © 1998 Taylor & Francis Ltd.)

Transnational collective action in Europe: the case of migrants in Italy and Spain
Gaia Danese

Abstract The central aim of this article is to analyse whether migrants based in two southern European countries attempt to engage in ‘transnational’ collective action in new political spaces opened up by the European Union. To what extent and in which ways do migrants living in Italy and Spain organise and act at the European level? This specific aspect of migrants’ mobilisation is discussed as part of a more general analysis of the organisational forms taken by migrants’ collective action, and the models of participation they face in their national host societies. My starting point is to look at the contextual factors that shape collective organisation, which I explore through the concept of ‘political opportunity structure’ adapted from my fieldwork observations. The migrants’ active response to multi-levelled opportunities (ie. opportunities at both the nation state and transnational level) will be illustrated. In order to provide a more complete and dynamic approach, the different degrees of cultural ‘know-how’ pertinent to engaging in social action will also be taken into account.

(Journal of Ethnic and Migration Studies Vol. 24 No. 4: 715–733, © 1998 Taylor & Francis Ltd.)

European migration regimes: emerging, enlarging and deteriorating
Rey Koslowski

Abstract As European states increasingly turn toward multilateral cooperation in asylum policy and border control, a regime governing migration to the European Union is emerging. Central and East European states are also preparing to join this emerging EU migration regime by incorporating the Justice and Home Affairs acquis communautaire into their laws, and strengthening their administrative systems to implement new migration laws. At the same time that member states attempt to control the inflow of more migrants through multinational cooperation some member states are trying to increase the naturalisation of those already resident by permitting dual nationality. The new Council of Europe Convention on Nationality marks a shift away from long-standing international norms against dual nationality. The simultaneous emergence of an international regime governing migration to the EU, the influence of this regime on migration policy making in Eastern and Central Europe and the decline of the regime which helps European states delineate their boundaries demographically vividly demonstrates a transformation of sovereignty in the emerging European polity.

(Journal of Ethnic and Migration Studies Vol. 24 No. 4: 735–749, © 1998 Taylor & Francis Ltd.)

A European citizenship or a Europe of citizens? Third country nationals in the EU
Randall Hansen

Abstract Beginning with the argument that the greatest inadequacy of European citizenship is its failure to address the situation of the some 12–13 million third country nationals permanently resident in the EU, this article examines the scope for granting such individuals political citizenship in the context of three constraints: member state hostility to a transfer of competence in nationality to Community institutions, competing definitions of nationality within the Union and a current definition of EU citizenship that institutionalises its derivative character. It considers three possibilities canvassed in the scholarly literature: an extension of EU citizenship as it is currently defined, an activist ECJ jurisprudence and an uncoordinated harmonisation of member state policies on naturalisation. In light of the practical limitations on these possibilities, the article concludes that the most feasible path to an inclusive European citizenship lies not in questioning the subordination of European citizenship to national citizenship, but rather in encouraging moves across the EU in favour of a general acceptance of dual nationality.

(Journal of Ethnic and Migration Studies Vol. 24 No. 4: 751–768, © 1998 Taylor & Francis Ltd.)

Homeland citizenship policies and the status of third country nationals in the European Union
Gary P. Freeman and Nedim Ögelman

Abstract Discussion of the status of third country nationals in the European Union tends to focus on member state and/or European Community law and policy. These debates need to take into account the policies and interests of the sending states as well. They are central to the decisions of third country nationals to naturalise and integrate into host countries. We examine the citizenship and naturalisation policies of the three most important EU receiving states: Germany, the UK, and France. We explore the policies of their leading source countries regarding dual nationality, naturalisation abroad, renunciation of home country citizenship, mandatory military service, postal ballots and other policies plausibly linked to migrant naturalisation decisions. We find that the naturalisation policies of the host countries are converging, though not in an obviously liberal or restrictive direction. On the other hand, there is a strong pattern among the sending states. They have eliminated most of the disincentives for their nationals acquiring host country citizenship. At the same time they permit expatriates to retain their homeland nationality and most other rights of citizenship. We argue that these are strategic moves on the part of sending governments to first, ease the plight of nationals living permanently abroad, second, maintain ties with those who would expatriate in any case, and third, facilitate the use of the expatriate community as a means of political leverage against host governments.

(Journal of Ethnic and Migration Studies Vol. 24 No. 4: 769–788, © 1998 Taylor & Francis Ltd.)