13 Colum. J. Eur. L. 201 (2006)

Dr. Achilles Skordas. Reader in Law, University of Bristol, United Kingdom; Member of the Odysseus Academic Network for Legal Studies on Immigration and Asylum Law in Europe.

“All things being equal, more foreigners and indeed more people of any stripe do not mean either lower wages or higher unemployment. If they did, every time a baby was born, every time a newly minted graduate entered the work force, it would be bad news for the labor market. But it isn’t. Those babies eat baby food; those graduates drive automobiles.”
– Roger Lowenstein, The Immigration Equation, N.Y. TIMES MAGAZINE, July 9, 2006.

“The status quo is not an option. With growth, and more Europeans in more productive jobs, we can achieve the outcomes which meet Europeans’ expectations and values. By acting in the areas that matter most, we can advance European integration. Growth and jobs is a truly European agenda.”
– Commission Communication on European Values in a Globalised World, at 3, COM (2005) 525 final/2 (Mar. 1i, 2005).


A. The Long-term Residents Directive and Labor Market Protectionism

On January 23, 2006, the EU Member States were to have completed the transposition of Council Directive 2003/109/EC of November 25, 2003, Concerning the Status of Third-country Nationals Who are Long-term Residents (LTR Directive). This Directive represents one of the two fundamental legal instruments adopted with the objective of managing migration flows in the Union; the other is Council Directive 2003/86/EC of September 22, 2003, on the Right to Family Reunification. The LTR Directive is an important piece of Community legislation regarding economic migration, because it determines the general status, rights and freedoms of immigrants who are granted LTR status in the European Union (EU). Neither the LTR Directive nor the present paper address the legal status of refugees and other persons in need of international protection, as there are different regulatory regimes in place for these categories of persons.

The LTR Directive cannot, however, be considered a milestone in the European integration process, because, in fact, the Member States have retained substantial authority to regulate the access of long-term residents to their respective labor markets. The Directive is inherently discriminatory because it excludes long-term residents from the Community freedom of the movement of persons in the internal market. Only a “marginal” mobility between two Member States is foreseen and even that can be further restricted and regulated by the second Member State utilizing various methods, including the application of a quota system. The denial of this economic freedom, which is one of the fundamental pillars upon which the Community is based, deprives immigrants of the opportunity to possess an “EU Green Card.” This card would enable immigrants to move freely in the EU in search of work and to participate, on equal footing with EU citizens, in the various self- organizational structures, networks and entrepreneurial activities that characterize the essence of European integration. The lack of full economic integration of immigrants in the Community is likely to increase their reliance on the welfare safety net of the Member States, which is exactly what the LTR Directive intends to avoid.

These inconsistencies are consequences of the interventionist conception of the LTR Directive that perpetuates, for the foreseeable future, the fragmentation of the European labor market in national segments. It is important to note that the Directive confers upon Member States the authority to introduce restrictive regulations on various issues relating to the exercise of long-term resident rights (may-clauses). Though it is impossible to predict how the Member States will exercise these powers, the very existence of the may-clauses and of other restrictive rules is likely to establish normative expectations capable of consolidating the influence of domestic lobbying groups that oppose the opening of labor markets to long-term residents, at least for a certain period of time. It is also important to note that the vagueness of provisions of Community Law is a relevant factor in assessing their legality. This is despite the fact that judicial review in the area of migration and asylum by the European Court of Justice (ECJ) is still limited.

This paper will argue that the LTR Directive, combined with the weak normativity of mobility rights of third-country nationals in the internal market, stabilizes the fragmentation in the Union’s labor markets through the mediation of Community law. As long as the Directive is applied as currently formulated, and despite the positive aspects of some of its provisions, long-term residents will, in principle, be deprived of the fundamental Community freedom of movement of persons. Further, the economy of the Union as a whole will fail to realize the benefits the internal market was expected to convey.”

A liberal immigration policy agenda finds its justification not just in terms of welfare increase, but in that it is intrinsically intertwined with theories of justice. As Joseph Carens eloquently stated twenty years ago, “the current restrictions on immigration in Western democracies… are not justifiable – like feudal barriers to mobility, they protect unjust privilege.”

B. European Union Immigration Law and Policy

The rights of immigrants under the Treaty Establishing the European Community (EC Treaty) are limited. Though the internal market is characterized “by the abolition, as between Member States, of obstacles to the free movement of goods, persons, services and capital,” the EC Treaty makes a distinction between nationals of Member States and third-country nationals. Only citizens of the Union “have the right to move and reside freely within the territory of the Member States.” Beneficiaries of the freedom of movement of workers, the right of establishment and the provision of services, are in principle the nationals of Member States, not third-country nationals, even if they have lawful residence in a Member State.

The scope of the economic freedoms provided for by the EC Treaty can be widened by action of the Council. For instance, the Council may extend the provisions on services to third-country nationals who are established within the Union. Moreover, the ECJ has recognized, albeit with some inconsistencies, the right of third-country nationals who are family members of EU citizens to invoke the freedoms, together with the right to family life, in order to secure access to, and lawful residence in, the Union.

The main avenue for the regulation of immigration and asylum is Title IV of the EC Treaty. Under its provisions, the Council may adopt measures regarding the control and crossing of the Union’s external borders and the fight against illegal immigration. Moreover, the Council may adopt measures with respect to legal immigration including, for example, the conditions of entry and residence of third-country nationals in Member States, the standards and procedures for the issue of long-term visas by the Member States and the right to family reunification. The Council may also adopt “measures defining the rights and conditions under which nationals of third countries who are legally resident in a Member State may reside in other Member States”; this provision constitutes the legal basis for the LTR Directive. Legal immigration, as a policy field, remains under-integrated in the Union’s system, in large part because proposed measures must be adopted unanimously by the Council and are not subject to the qualified majority and co- decision procedure, as in the areas of asylum and illegal migration.

A fundamental correlation is, therefore, maintained between the internal and external dimensions of EU immigration policy. Third-country nationals legally residing in a Member State cannot, in principle, invoke the Community freedoms of movement of persons and establishment (the internal dimension) because the individual Member States retain the power to regulate the conditions of entry and residence of third-country nationals (the external dimension). The LTR Directive stresses that the free movement of persons is to be developed in conjunction with flanking measures relating to controls at the external borders of the Union. As Advocate General Geelhoed stated:

Even though national immigration law has not yet been (fully) harmonised and differences and disparities may persist, it is apparent that, until a sufficient degree of harmonisation is achieved, the free movement of all persons within the internal market, regardless of their nationality, depends on the confidence which the Member States have in each other’s policies and practices in admitting third-country nationals to their territory.