Legal Migration Law and Policy Trends in a Selection of EU Member States

Directorate-General Internal Policies

Policy Department C

Citizens Rights and Constitutional Affairs

LEGAL MIGRATION LAW AND POLICY TRENDS IN A SELECTION OF EU MEMBER STATES

BRIEFING PAPER

This briefing paper offers an overview of the current trends in ‘legal migration’ law and policy in a selection of EU member states. The main tendencies are ascertained through a comparative analysis of their strategies and priorities in the specific areas of labour migration, family reunification and immigration for the purpose of studies. In particular, this paper looks at the legal and political experiences of and responses pursued by Austria, Belgium, France, Germany, Poland, Spain and The Netherlands. The following issues will be addressed: what are the latest developments in the legal and policy framework covering the admission of third country nationals for the purposes of employment, family reunification and studies? What is the underlying approach taken by EU countries? What are the conditions being applied in each of the cases? Are there any migration policy and legal trends that are common to all the member states of the EU?

IP/C/LIBE/FWC/2005-22/SC2

This note was requested by: The European Parliament’s committee on Civil Liberties, Justice and Home Affairs.

This paper is published in the following languages: EN, FR.

Author: Sergio Carrera, Research Fellow at the Centre for European Policy Studies (CEPS) and external expert on ‘immigration and integration’ for the European Economic and Social Committee.

Manuscript completed in 26-07-2006

Copies can be obtained through: Tel: 32105

Fax: 2832365

E-mail: japap@europarl.europa.eu

Informations on DG Ipol publications: http://www.ipolnet.ep.parl.union.eu/ipolnet/cms

Brussels, European Parliament

The opinions expressed in this document are the sole responsibility of the author and do not necessarily represent the official position of the European Parliament.

LEGAL MIGRATION LAW AND POLICY TRENDS IN A SELECTION OF EU MEMBER STATES

Sergio Carrera [1]

INTRODUCTION

This briefing paper offers an overview of the current trends in ‘legal migration’ law and policy in a selection of EU member states. The main tendencies are ascertained through a comparative analysis of their strategies and priorities in the specific areas of labour migration, family reunification and immigration for the purpose of studies. In particular, this paper looks at the legal and political experiences of and responses pursued by Austria, Belgium, France, Germany, Poland, Spain and The Netherlands. The following issues will be addressed: what are the latest developments in the legal and policy framework covering the admission of third country nationals for the purposes of employment, family reunification and studies? What is the underlying approach taken by EU countries? What are the conditions being applied in each of the cases? Are there any migration policy and legal trends that are common to all the member states of the EU?

1. THE NATIONAL LEGAL IMMIGRATION EXPERIENCES AND REGIMES

The experiences of and responses pursued by EU states are very diverse due to their respective regulatory and institutional settings covering the area of ‘legal immigration’. [2] The priorities, challenges and policy responses differ greatly from one state to another according to their divergent national histories of settlement and colonialism, perceived societal problems and labour market needs, as well as the economic and political situation in a given time period. But, are there any common trends in the national arena in the field of legal migration?

While the national level continues to retain the main sovereign powers over policies on legal migration, the influence of the EU is progressively growing. The set of rules in this area is growing rapidly due to the increasing number of laws being enacted in the EU under ‘the Community method’. Member states have therefore adopted new legislative frameworks to transpose these rules into national law. While the EU’s role in this field is imperative, necessary and positive, the few EC Directives on the issue have at times left too much discretion in hands of the member states to justify a process of tightening legal immigration laws which position the immigrant in a vulnerable position vis-à-vis the state, the citizen and the employer. [3]

A trend that can be identified when looking at the situation in the national arena is that immigration laws are becoming more ‘defensive’ and ‘protective’, having as their objective ‘to manage’ and filter the movement of those not holding their nationality. The state continues to find imaginative regulatory ways to limit mobility into and inside its territory, restrict access to its labour market, welfare system and educational system and make family reunification difficult. As we will show in this paper, there is a restrictive, utilitarian and economically-oriented trendin the field of legal immigration consisting of two state practices:

tightening the rules of admission for employment purposes and applying a selective and discriminatory approach that gives priority and more attractive conditions to high-skilled immigrants; toughening up the rules on family reunification and not facilitating the movement of students; and

Questionable use of ‘integration’ as a legal condition for having access to the rights provided in the rules of legal migration. [4]

2. THE LEGAL AND POLICY FRAMEWORK ON LEGAL IMMIGRATION: TRENDS AND DEVELOPMENTS

In this section we present the latest developments in the field of legal migration (labour migration, family reunification and immigration for the purpose of studies). We provide a brief overview of the policy strategies and legal responses being pursued by Austria, Belgium, France, Germany, Poland, Spain and The Netherlands.

It is our view that a restrictive, utilitarian and economically-oriented approach is the guiding rationale. In Austria, the philosophy behind the new Aliens Act Package seems rather restrictive in nature. [5] The tendency appears to be for Austria to implement the EC Directives in the most limited manner, for it to allow a restrictive interpretation and practice of traditionally strict immigration rules. [6] The double quota system that is applicable for admission and access to employment mainly focuses on the selection of key professionals and self-employed personnel. A similar approach is taken in Germany, where the new Immigration Act (Zuwanderungsgesetz) [7] has kept the ban on recruiting labour migration (or ‘recruitment stop’),and a clear priority is given to high-skilled migrants. [8] The Aliens Act of 2000 in The Netherlands offers to high-skilled migrants or ‘knowledge migrants’ (kennismigranten) a more open, faster and simpler administrative procedure than those applicable to the rest of migrant workers. Moreover, the entry into force of the new Act on Integration Abroad (Wet inburgering buitenland) on 15 March 2006 has involved the practice of an immigration policy that misuses the tool of integration as a juridical condition for admission, family reunification and social inclusion. [9] In France, the new Projet de Loi relatif à l’immigration et a l’intégration of 30 June 2006 [10] advocates a ‘selective immigration policy’ based on the creation of a new residence permit for ‘skilled and competent’ immigrants and the mandatory nature of the integration contract (contract d’accueil et d’integration, CAI)for them to have access to the rights presented in the rules on legal migration. [11]

The latest wave of EU enlargement has also played a key role in the development of new rules on legal immigration in Poland. [12] Accession acted as the main incentive for legislative reform in the field of immigration in this country. Three bills were adopted to ensure compliance of the former Aliens Law with the JHA acquis. [13] As Loys and Weinar argue, the Polish laws are restrictive and intend to secure the national labour market from third country nationals. [14] Contrary to this trend, the current government in Spain adopted Royal Decree 2393/2004, approving the Regulation of Organic Law 4/2000, on the rights and freedoms of foreigners in Spain and their social integration. [15] In contrast with the policies pursued by the previous Spanish government, which focused mainly on border control and restricting immigration (security), the positive consequences of immigration are now openly acknowledged. A series of initiatives have been passed to foster social dialogue and centre the debate on labour migration and the social inclusion of immigrants. [16]

2.1. LABOUR MIGRATION

While national practices diverge widely with regard to laws on labour immigration, there are some common features. They may be summarised as follows: 1) a selective and discriminatory approach; and 2) the principle of national preference (labour market test) and the key role of the employer.

First, a selective and discriminatory approach predominates in the majority of EU member states. This approach gives overwhelming priority to a selected immigration of those considered as beneficial to the national economy because of their skills or economic status. A substantial number of member states practise a policy of selective high-skilled immigration consisting of reducing and facilitating the administrative procedures applicable to the admission for employment purposes of those who are labelled as ‘high-skilled, talented or well-educated’. [17] This profit-oriented rationale institutionalises the state distinction between those non-nationals who are ‘useful and profitable’ and are therefore welcome, and all ‘the Others’, who are perceived as a threat, a burden and an enemy for stability and social cohesion and who need to be prevented from entering the country in order to protect the domestic labour market. In practice it is virtually impossible to determine which migrants will fall on which side of the line.

Most of the countries studied have a specific scheme for highly skilled immigrants.The Netherlands practises a selective and demand-driven immigration policy that is rooted in economic considerations. [18] An accelerated procedure for high-skilled migrants has been in force since 1 October 2004. High-skilled immigrants will not need to experience the long and tedious bureaucratic procedures of applying for a work permit. [19] In Germany, the Employment Ordinance – Foreign Countries provides that highly skilled migrants are directly eligible for a permanent settlement permit upon entering the German territory. [20] The Federal Employment Agency does not need to give its consent to these categories of immigrants to ensure a quick response to the application by the Foreigners Office. The new Art. 9 of the Arrêté Royal modifiant l’Arrêté Royal du 9 juin 1999 relatif à l’occupation des travailleurs étrangers in Belgium gives a clear preferential treatment to the category of persons falling within the privileged status of highly skilled workers allowing them to renew their work permit for a new period of four years. [21] The Settlement and Residence Act of Austria provides in Art. 41 a special «settlement permit – key worker» which will be granted in an accelerated procedure in the case of qualified personnel. [22]

In France, immigration is regulated according to the perceived economic needs of the country. The main principle seems to be that nobody should become a public burden, and hence that the applicant must have sufficient income and sickness/health insurance coverage. The Projet de Loi relatif à l’immigration et a l’intégration presents a new residence permit called «the residence permit mentioning competences and skills» (La carte de séjour portant la mention compétences et talents). [23]Thispermit shall be granted to those immigrants who, because of their special competences or skills, may contribute significantly and durably to the economic situation or the intellectual, scientific, cultural, humanitarian or sportive development of France and of the country of his/her nationality. [24]

Other countries do not have a specific system for high-skilled immigration. In the case of Poland,while the policy priorities of the Polish Immigration Law seem to give preference to highly skilled and qualified migrants, [25] there are no specific rules addressing or facilitating that goal. [26] Spain does not have a general system for the ‘highly-skilled’ either. The annual quota (contingente) system is one of the main mechanisms for legal labour migration. The government annually approves a quota that provides a technical estimation of the number of workers who are deemed as ‘necessary’ by employers and the Autonomous Communities. [27] The administrative mechanisms for their incorporation into the labour market are simplified. [28] It also encourages hiring immigrant workers in the countries of origin. [29]

A second trend that we identified is the application of the principle of national preferenceby which,before those immigrants who are not highly skilled are allowed to take up a job, a ‘labour market test’ is carried out by the competent authorities to check whether the post cannot be filled by a national or any other privileged immigrant. [30] The role of the employer is a very important common ingredient in the initiation, continuity and ending of the processes of immigration for labour purposes. In Germany, there will be first an ‘individual labour market test’ proving that the employment of an immigrant does not have a negative impact on the national labour market and that no other privileged worker is available. [31] In Austria, in reaching the ceilings established in the quota immigration system preferential treatment will be given to Austrian nationals or other privileged immigrants. In The Netherlands, the employer plays a key role in the process of immigration for labour purposes. Legal migration for reasons of employment will only take place if the migrant finds an employer who will initiate the procedure by signing a declaration, and the existence of an insufficient labour supply between EU/EEA to meet this labour shortage has been proven. [32] In France, the new law allows legal residence to be given if the applicant has a job contract, something which makes the position of the immigrant more vulnerable towards the employer. [33]

2.2. FAMILY REUNIFICATION: TOWARDS A RECOGNISED RIGHT?

Immigration rules are subject to a number of rigid conditions that will need to be met in order for the immigrant to have the right to be reunited with her/his family. [34] This tendency seems to be shared by a majority of states which have enacted new legislation on immigration justified by their obligation to transpose Council Directive 2003/86/EC on the right to family reunification. [35] As to the personal scope, the shared norm seems to be that the sponsor’s spouse, minor children of the couple, including adopted ones, minor children under the custody of either or both are eligible for family reunification. [36] Among the criteria that are being applied for the family reunion to take place we may underline the need by the sponsor to prove that s/he has sufficient financial resources and the existence of adequate housing according to the standards in the receiving state, in addition to some other norms which are characteristic of the national legal system.

In France, family reunion may be refused if the sponsor does not prove that they are in possession of sufficient and stable resources and have adequate housing (Art. L 411-5 of the Code). The new Projet de Loiintroduces significant restrictions in this field. It is now provided in Art. 44 that immigrants who reside legally in France may after 18 months apply for the right to family reunification of his/her spouse and their children if they are under the age of 18. [37] The new law also imposes the conditionality of integration into the community on the family members in order for them to be allowed to reunite and obtain a residence permit. [38] The Netherlandsshares the same position towards the use of integration as a condition for family reunification to be allowed.In the same line,Art. 14 of the Settlement and Residence Act in Austria also provides a mandatory integration agreement (Integrationsvereinbarung), and Art. 46 submits family reunification to a sub-quota of the immigration quota. [39] In Germany the Residence Act (Aufenthaltsgesetz) regulates the entry and stay of immigrants in Germany. Section 32.2 imposes the conditionality of integration when the minor arrives in Germany after her/his parents. [40] In Spain the role of the Supreme Court (Tribunal Supremo) has been very important in interpreting immigration law proactively and openly. [41] It is therefore not so important to look at the precise wording of the articles provided by the law and that their conditions are met, but to show evidence of the existence of a material and personal emotional connection between the family members. [42] In Belgiumthe rules on family reunification have been modified recently and this legislation is expected to enter into force soon. [43]

2.3. IMMIGRATION FOR STUDY PURPOSES: FACILITATING MOBILITY?

The common trend here seems to be the existence of highly bureaucratic legal procedures which impede the movement of students. The real impact of national transposition and practical implementation of Council Directive 2004/114/EC on the conditions of admission of third-country nationals for the purposes of studies remains to be seen. [44] At present, the conditions shared by most member states for them to be granted a residence permit as students usually are: presenting a certificate of admission to studies, proof that the person has sufficient financial means for subsistence, a medical certificate and a certificate declaring that s/he does not have any criminal record. Similar criteria are required to be met in Belgium, [45] in France, [46] in Poland, [47] Spain, [48] etc.

Some of the EU states allow ‘immigrant-students’ access to employment during their studies and at times even after their completion. InBelgiumthelaw offers the possibility for students to work where it does not exceed 20 hours per week and is compatible with their studies. [49] InFrance,those holding a temporary ‘student’ residence permit may apply for authorisation to have access to employment. [50] If the authorisation is granted they will have this right but subject to it being a part-time job. In Spain, Art. 90 of Royal Decree 2393/2004 establishes that immigrants will be authorised to take up employment activities when these are compatible with the studies and the income received does not represent their main resource of subsistence in the country. The employment contract must also be part time, and in those cases where the contract is full time the total duration of the employment contract must not exceed three months and must not coincide with the given institution’s educational periods. According to the Immigration Law in Germany, foreign students may remain in the country for one year following completion of their studies in order to find a job commensurate with their academic degree. [51] In Poland the initiative to offer a pro-student immigration policy was finally rejected in the debates about the Aliens Act of 13 June 2003. [52]

The utilitarian approach highlighted in the beginning of the paper can be also seen in Scotland, where the Fresh Talent Initiative: Working in Scotland Scheme has been implemented since summer 2005. This initiative offers a visa extension scheme designed to help overseas ‘talented graduates’ from Scottish educational institutions to stay and work in Scotland. [53] A similar situation applies in Austria, where according to Art. 41.5 of the Settlement and Residence Act (NAG), holders of a valid residence permit for students, may, after completing their studies at a university, be issued a ‘settlement permit – key worker’.

3. CONCLUSIONS

The restrictive, utilitarian and economically-oriented trend in the field of legal migration at the EU national level is based on a questionable confidence of state authorities in their ability to determine the future needs of the labour market. Moreover, a policy of selecting high-skilled and educated immigrants may be described as ‘discriminatory’ in its nature and effects. Facilitating the admission and residence of only those falling within the domestic definition of ‘highly skilled or talented immigrant’ creates direct discrimination against those not falling within that privileged status as defined by national law.

An open approach that respects human rights should guide the discussions and responses at national and EU level in the area of legal migration. [54] This approach would be based on the direct dismissal of the idea that the immigrant is merely human capital to be deployed according to the economic needs and priorities of the receiving country. It would also imply the abandonment of the existing restrictive rules on admission for family reunification and studies. Immigrants are holders of the set of human rights recognised by common international and European legal instruments, such as the ECHR, the UN International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families of 1990, the ILO Conventions, etc. [55] Economic and political considerations must not prevail over a comprehensive set of human rights such as non-discrimination, access to justice and the principle of equality, fair treatment and solidarity.

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For the annexes, see the word document

Legal Migration Law and Policy Trends in a Selection of EU Member States