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Legalization of illegal immigrants: the EU in the face of its internal contradictions

by Harald Greib
10/02/2005

Some commentators and Member State leaders were surprised that the Spanish government did not consult its neighbours before starting last week a major process of regularising the situation of illegal immigrants. However, the central problem of immigration control at European level comes precisely from the fact that Member States do not accept to give another State the competence to decide on foreigners’ access to their labour market. It is therefore not a problem of contradiction between principles and concrete measures, but a question of the degree of Community integration and the willingness to decide everything at European level or not.

What the “outraged” European commentators and leaders did not understand is that in the EU Treaty there are two types of free movement (I have even wondered sometimes, if the authors of the Treaty were aware of this). When Schengen was integrated into the Community system, the principles became somewhat intertwined.

On the one hand, there is the truly European freedom of movement, which concerns employees, service providers and entrepreneurs. To enjoy it, you must be a national of a Member State – a simple residence permit is not enough. On the other hand, there is free movement under Schengen. It concerns only tourist trips not exceeding three months. If a legal foreigner in Spain wants to work in France, he needs a visa or to fall under the scope of a special directive giving him the right, such as that of an employee of a Spanish company who wants to send him on a limited assignment outside Spain. But the scope of this directive is rather limited.

Consequently, what may concern the German Minister, for example, is the ease with which a Moroccan, let us say regularized in Spain, can travel to Germany pretending to be on a tourist trip and actually look for a job, and who is therefore, in Germany, an irregular. Logically, it is the Minister of the Interior who is concerned, because this is a police problem. Without papers from a European state, he could easily be deported, as he cannot present a visa. We wouldn’t have to prove that he’s looking for a job. On the other hand, with his Spanish residence permit, he would have to prove it, which is very difficult, unless he is caught in the act of working. So we can see that this is not a legal problem, but a “camouflage” problem.

In the Treaty of Amsterdam, the European Union is given the power to develop an immigration policy. But Antonio Vitorino, the first “Home Justice” Commissioner after Amsterdam, quickly understood that the needs of different Member States were too heterogeneous to define a European policy. Thus Spain needs a low-skilled workforce, Germany needs computer scientists,… .. . . This competence was well acquired under his aegis, but not used for these practical reasons. At the same time, there are the other Directorates-General of the Commission, which deal with the Single Market, which are pushing for each foreigner with a national residence permit to also benefit from the free movement itself, thus putting them on the same level of rights as nationals of the Member States. For the time being at least this is blocked by the Member States, which do not want to lose control over foreigners’ access to their labour markets. Thus these “solos” from Italy, Spain and, a little older, Belgium, France,… will not make the ambition of this part of the Commission any easier.

Let us go one step further: what if a State wanted to facilitate access to nationality for irregular migrants? Then they would become nationals and could fully benefit from the free movement of people in Europe and have access to the labour markets of all Member States. So such a case, of a certain scale, would indeed require the harmonisation even of national naturalisation laws, if we did not want certain Member States not to call into question the right to free movement as such in Europe. Part of the Commission would certainly be interested, since it would gain additional competence. On this point, I was surprised when the German nationality law was reformed that the other Member States did not invite themselves into the discussion. In the end, any Turkish citizen naturalized in Germany can leave the next day to work elsewhere in the European Union.

So, this whole debate does not emerge from a specific problem of “immigration”, it is a general problem of European integration, which means that the pooling of one domain automatically leads to the pooling of another and so on, without end. The distressing question here is that all this is being done without any democratisation of European power. To sum up, the immigration problem is pro toto part of the whole European problem, but Spanish regularisation is not one of them, because borders still exist, even if they are only in legal codes and only concern the difference between tourism and the labour market. If the Spanish want to regularise, let them do so, it only increases the potential mass of irregular workers in other Member States, but not the potential mass of people who can legally access the labour market. Simply, finding them will be more difficult. This example illustrates a clear fact: the methods of European integration inherited from the past have reached their limits. To solve a problem, they create another one that is at least as important. It is not only the institutions that become obsolete as they move from the construction phase to the governance phase of the EU: the methods also require renewal because they do not lead to a political impasse.

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