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Freedom of movement in Europe – how wonderful!

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Default profile picture Morag Young

The Home Secretaries of the EU’s 15 Member States have perfected the final text of the ‘Directive concerning the status of third country nationals who are long-term residents’. It is a small step towards a common framework on the subject of asylum and immigration.

Integration on a supranational level of issues of internal politics does not exist elsewhere. A group of states has never expressed the ambition or the desire to give up control of access to its territory and legislation on foreigners to a supranational authority.

Trust or suspicion

Trust is a moral virtue forgotten in an area where suspicion generally prevails. Most legislation on foreigners is constructed around suspicion: suspicion of possible abuse of our social security systems, our job market, our schools, our right to asylum and indeed our local businesses. When the 15 Member States negotiate the texts on asylum and immigration at Community level the suspicion is not just of foreigners: these states are just as suspicious of each other. They suspect one another of being too tolerant towards foreigners and of being an entry point for both legal and illegal immigrants into Europe. The end of internal border controls has fed a host of fantasies about other states’ legislation, perceived as too lax by some and too restrictive by others. A year ago, the Seville European Council conferred on the EU the mandate to approve three directives concerning the norms concerning the status of refugees, arrangements for reuniting families and the status of long-term residents before June 2003. The good news is that the last two – reuniting families and long-term residents - have both been the subject of a political agreement between the Home Secretaries of the 15 States under the Greek Presidency (the first text was in February and the second in June). They should be adopted in their final versions during the next few months once Parliamentary reserves have been lifted.

Rights tied to residence not nationality

The Directive concerning long-term residents is particularly interesting. It has made life difficult for the delegates of the 15 countries in charge of negotiating the text at the Council. The mechanism of the Directive as foreseen by the Commission responds to the concern of guaranteeing freedom of movement within EU territory, above all for employment and mobility of the workforce, to nationals of third countries who have lived legally in Europe for five years. For foreigners, the ‘16th State’ of the Union, the freedom to settle in a country other than the original Member State where they entered and had legal status does not currently exist. Previously, freedom of movement was only granted to foreigners for periods of three months, notably through a common visa system. From now on, they will also be granted the freedom to settle in another member state without going through national new entry procedures and to benefit from equal treatment, as the 5.5 million European citizens who currently live in another member state from the one whose nationality they hold do. After five years, an immigrant Moroccan doctor in Belgium, having passed the necessary equivalencies to stay in that country, can, if he can satisfy the anticipated conditions of the Directive, obtain long-term Union resident status and settle in France where his diplomas are recognised and where he will be accorded equal treatment with regard to French and Community nationals. In this way mutual recognition between Member States of their ability to welcome and integrate foreigners into their territory is established. It is recognition by the EU of the efforts of these legally settled foreigners, recognition of the fact that they have grown up, studied, worked and contributed financially in a European country. It is also the emergence of ‘citizenship based on residence’ as opposed to ‘citizenship based on nationality’. It is from their ‘residence’ in Europe and not their nationality of one of the European countries that foreigners draw their right to freedom of movement. But could ‘residential citizenship’ become allied to ‘national citizenship’?

How far should rights be granted?

The idea that finally these legal long-term residents will have the same rights as European citizens, rights acquired progressively on the basis of equal treatment (the right to benefit in another country from the social security system, study grants and non-discrimination with nationals) has seriously worried the Member States, especially Germany. ‘The legal status of third-country nationals should be brought closer to those of Member-State nationals’ according to the Tampere European Council which proposed a Union of freedom, security and justice in 1999. But how far will ‘ever closer union’ go? The countries that defend total equality of rights, notably France and Sweden, have, for two years, found themselves in systematic opposition to Germany and Austria who would like to establish a hierarchy between European citizens and legal foreigners. The text agreed on by the Ministers is thus the result of a compromise that, as far as rights are concerned, places long-term residents half-way between EU nationals and third country nationals who are not long-term residents (new arrivals).

Thus, some limits and dispensations are anticipated to the principle of equal treatment in order to allow states to keep the right to inspect access to their labour market and, by consequence, also access to their territory. These restrictions are linked to the impossibility of quantifying or qualifying the consequences of this Directive. How many beneficiaries of this long-term resident status are going to use their right to freedom of movement? What nationality will they be? What employment sectors will they work in? And where will they head? North or South? East or West? Germany? Italy? Countries fear that the movement of these long-term residents will be an additional pressure when they are already facing strong migratory pressure.

Towards a common framework

The two Directives which are the subject of agreements, reuniting families and long-term residents, concern legal immigration. Although they consist of numerous dispensations in principle and are not in their current incarnation truly ‘revolutionary’ (compared with what already exists in a number of Member States in terms of recognised rights for foreigners), the range of these agreements is considerable. They establish recognition of Community competence in terms of the rights of foreigners. With regard to the texts on asylum and immigration, minimal ‘norms’ are the price to pay for the establishment of a common framework that will evolve and become enriched as the integration of rights for foreigners in Community legislation progresses. This integration will necessarily have to pass through the jurisprudence of the European Court of Justice (ECJ). Nevertheless, these steps forward reflect a determination embraced by the Greek Presidency which expressed its desire to highlight the issue of legal immigration. After a considerable review of the text in order to accommodate the different conceptions of immigration, notably the diverging conceptions of France and Germany, a certain political courage was required, embraced by the Ministers, to take a step – even a small one – towards recognising the freedom of foreigners to settle in the Union’s territory. This agreement has required a good deal of mutual concession between states, concessions that, in this area, are worth considering as not inconsiderable evidence of ‘mutual trust’ over issues on which the affirmation of sovereignty rests.

Translated from Du bonheur de circuler librement en Europe !