A decade ago, under pressure from heads of state and government, Europe’s interior ministries adopted rules to boost social rights for immigrants. But they did so unwillingly, viewing the EU directives on long-term residence status and family reunification as a dangerous intrusion into their discretion.
It should come as no surprise, then, that these two directives are today badly implemented, with states such as the Netherlands, Germany and Austria doing little to hide their dislike of them. And, although the EU now has robust powers to improve transposition, the Commission has hardly used them in this sensitive policy area.
Moreover, as the Sheffield-based academic Diego Acosta describes, national courts dealing with infringement cases are being outmanoeuvred by interior ministries: the ministries simply grant discretionary rights to the immigrant complainants, putting a speedy end to their cases and thus to the prospect of an improvement in national transposition.
Three reasons for restriction
Interior ministries dislike the EU directives for three reasons. First, they view them as detrimental to their capacity to select the foreigners who enter the EU and stay: rights of family reunification can prevent governments from choosing immigrants on the basis of their professional qualifications; rights of residence can prevent governments from imposing integration conditions on immigrants who want to settle.
Second, the directives may discourage immigrants from leaving the EU. Interior ministries have recently embraced the idea of “circular migration” in which immigrants are supposed to return home after a short time in the EU. In this, they have formed something of an unholy alliance with development ministries, who support temporary migration as boosting “brain gain” in sending countries.
Third, the directives may be abused by immigrants. Family reunification rights are seen as encouraging false marriages, with prospective immigrants getting hitched simply so they can enter the EU. Some member states also believe the reunification directive allows too much scope for forced marriages. For that reason, they would like to raise the age at which spouses may enter the EU.
Three false logics
Analysis suggests that the first logic is flawed: although restricting family reunification and residence rights may indeed allow governments to select the immigrants they want, this does not actually help the economy.
“Kinship migrants” joining their families in the EU can take advantage of social networks not available to the highly-qualified immigrants selected under European schemes. As a result, they show upward social mobility as they settle in, whilst highly-qualified migrants tend to go downhill. Families, it turns out, are simply better at screening for the long-term productivity of immigrants than are businesses or governments.
As for the development benefits of migration, anecdotal evidence suggests that these are actually best achieved by immigrants who have settled long-term in the EU rather than by temporary migrants.
After all, long-term immigrants with a secure status are permitted to spend extended periods away from the EU without losing residence rights there. This means they are better placed to invest in their countries of origin. Moreover, during their time in the EU they tend to accrue skill-sets beneficial to development and good governance—social science qualifications, for example—which are less prevalent in countries of origin.
Finally, the reality of forced marriage is more nuanced than interior ministries claim. Analysis suggests that the phenomenon is best dealt with by offering women an exit from the unwanted marriage and by reducing the broader social pressures on them by means of education and dialogue. A strict immigration regime, by contrast, can leave women trapped, especially if they are dependent upon their spouses for their residence rights.
Means before ends
The evidence thus suggests that many core goals of European immigration policy can be met by a relatively hands-off approach or by empowering immigrants through secure rights. By inference, it also suggests that interior ministries are more concerned about their discretion than about their stated policy goals.
A concern for the means rather than the ends of policy has been a consistent feature of EU immigration policy. The European Parliament, for instance, is often more focused on gaining competencies than on the content of policy. And NGOs fall into the trap, first highlighted by the thinker Jeremy Bentham, of focusing more on the question whether individuals’ rights are met, than whether this is actually beneficial to them.
Yet, if interior ministries focus on the question of discretion even at the expense of their own policy aims, it is probably because they have a higher goal in mind: they wish to reassure the public that they have things under control. After all, analysis shows that citizens in countries with hands-on, selective immigration policies tend to be more relaxed about newcomers.
That’s all very well of course. But surely the best way to make citizens at ease with migration is to encourage them to be flexible, independent and entrepreneurial, rather than trying to remove these characteristics from immigrants by means of excessive control.