Geddes Andrew, Lobbying for migrant inclusion in the European Union
LOBBYING FOR MIGRANT INCLUSION IN THE EUROPEAN
UNION.
ANDREW GEDDES
Andrew Geddes is a Senior Lecturer in the School of Politics and
Communication Studies at the University of Liverpool.
Telephone: +44-151-794-2653
Fax: +44-151-794-3948
Email: geddes@liv.ac.uk
A version of this paper will be published in the Journal of European
Public Policy.
2
LOBBYING FOR MIGRANT INCLUSION IN THE EUROPEAN
UNION.
ANDREW GEDDES
INTRODUCTION
Immigration and European integration are connected because the supranationalisation
of free movement has drawn immigration and asylum into the Union's remit.
Attention has so far been largely been directed towards immigration control and
internal security (Baldwin-Edwards and Schain, 1994; Miles and Thränhardt, 1995;
Joppke, 1998; Geddes, 2000) rather than the scope for inclusion of migrants and their
descendants. Can the EU offer protection against racist, ethnic or religious based
discrimination? Can it offer access to EU rights to legally resident migrants as a result
of legal residence rather than as a result of prior possession of the nationality of a
member state? Can it ensure respect for the rights of asylum-seekers and refugees?
These questions apply to the 11.5 million legally resident third country nationals in
the EU, to citizens of member states of immigrant and ethnic minority origin, and to
the increased numbers of asylum-seekers who receive an increasingly frosty reception
in EU member states.
To address these migrant inclusion issues, the article focuses on the institutional
context for management of migration policy and the institutional channelling of pro-
migrant lobbying at EU level. Pro-migrant political activity is conceptualised as an
independent variable structured by the conceptual and organisational frame
configuring EU migration policy. The conceptual and organisational frame for policy
management provides pro-migrant lobby groups with an `institutional repertoire' in
relation to prevailing sources of Europeanised legal, political and social power
3
(Ireland, 1994; Soysal, 1994). Of key importance are the ideas, motivations,
calculations, actions and alliance-building strategies of EU level institutional actors
and the inducement, inculcation and co-option of pro-migrant lobby groups into
consultation and policy development processes by EU institutions (particularly the
Commission). These processes have implications for the forms of political action
enabled within this participatory context. The focus of this article is not on migrants
as political actors at European level - on direct representation. This sends us down the
unproductive path of analysing migrant or ethnic mobilisation wherein the EU is
identified as an arena of new forms of transnational contentious politics (Rex and
Drury, 1994; Tarrow, 1998; Marks and McAdam, 1996; Favell and Geddes, 2000).
This would be unproductive because the forms of political action identified in this
article accord more with interest co-option than with contentious politics. Pro-migrant
groups at EU level tend not to seek to mount a collective challenge to EU elites, but to
build alliances with them. Pro-migrant political activity is channelled through an
institutional context with a strong technocratic and legalistic ethos that privileges
epistemic, transnational advocacy networks co-ordinated though Brussels-based pro-
migrant `umbrella' organisations. These pro-migrant organisations seek to meld some
form of common European level response from diverse migrant and migrant origin
communities in EU member states (Haas, 1992; Keck and Sikkink, 1998;
ERCOMER, 1996).
The article's main focus is `vertical' in that it addresses policy institutionalisation and
its participatory consequences in a particular policy sector - migrant inclusion. The
article also has `horizontal' relevance because of its relation to perspectives on
interest representation that construe the EU as offering new institutional venues and
4
access points for representatives of electorally popular diffuse interests such as
women's groups, environmentalists and consumers (Judge, 1993; Pollack, 1997;
Mazey, 1998). Can the EU also offer scope for protection of migrants' rights, a
seemingly electorally unpopular cause? Despite the constraints of the EU's migration
policy context, it is argued that technocratic and legalistic processes do offer scope for
protection of electorally unpopular diffuse interests of migrants and their descendants
arising. Opportunities are limited, but where they do arise, they stem from the relative
`insulation' of technocrats and judges from the harsher glare of electoral politics. Pro-
migrant lobby groups tend to see more Europe with entrenched legal and political
competencies in the form of extended powers for the Commission, European Court of
Justice (ECJ) and European Parliament (EP) as a potentially, progressive counter
balance to lowest common denominator Council-based decision-making. The new
institutional venues and access points for pro-migrant groups are, however,
configured by an institutional context that orients the Europeanised migrant inclusion
policy frame towards forms of economic citizenship that are strong on market-related
civil rights, but weaker on political and social rights.
5
TRANSNATIONAL ADVOCACY AND MIGRANT INCLUSION
If it is possible to identify the development of new forms of political activity that
address EU migration policy competencies - and I show that it is - does such activity
constitute the formation of pro-migrant `transnational advocacy networks'? These
networks are composed of activists bound by `shared values, a common discourse,
and dense exchanges of information and services' able to draw from `resource rich'
international organisations and feed back into domestic contexts (Keck and Sikkink,
1998). Has European integration established a migrant inclusion policy frame with
attendant resources that structures the activities of `advocacy coalitions' and provide
them with new venues and access points for political action (Baumgartner and Jones,
1991; Sabatier, 1998)? Moreover, does this activity possess the potential to sustain
itself, or is it best characterised as relatively ephemeral transnational political
exchange with national contexts remaining dominant? The essence of the claims for
inclusion made by pro-migrant groups is calls for entrenchment of legal and political
competencies that would offer extended scope for supranational legal redress and
political oversight of migration policy combined with feedback effects into domestic
structures arising from Europeanisation.
These considerations of transnational advocacy also prompts questions associated
with the meaning that `migrant inclusion' acquires in relation to the EU's migration
policy context. Clearly, ideas about a people's Europe and social inclusion have
acquired EU level resonance and legitimised EU action in these areas (Blyth, 1997).
Moreover, in relation to migrant inclusion it has been argued that `post-national'
membership draws from universalistic notions of personhood grounded in
international human rights standards with the potential to render national citizenship
6
`inventively irrelevant' (Soysal, 1998). Ideas about rights, participation, inclusion and
membership are, however, channelled through an EU level migration policy context
that delimits policy possibilities in relation to the institutional context created by
Treaty and associated legislation. The conceptual and organisational configuration of
the policy context directs migrant inclusion options towards `economic citizenship'
and market making (Everson, 1996) in an EU that appears to be establishing a
relatively hard shell in the form of tight immigration controls between itself and
neighbouring states (Wallace, 1996). Bounded liberalisation and the accompanying
securitisation of the European space frame the migration inclusion agenda.
The development of an EU level migrant inclusion agenda also raises questions about
the possibility for feedback effects into domestic contexts where the emphasis on
immigration control has been strong during the 1990s and where migrant inclusion
policies are diverse and patchy. The hinterlands associated with national `policy
styles' (Richardson, 1982) create potential for `national, political and cultural
traditions, hegemonic values and the characteristics of the politico-administrative
system' to undermine or reinforce EU policies (Mazey, 1998: 145). Policy responses
in EU member states to immigration have been refracted through differing national
lens arising from patterns of immigration/emigration and understandings of
nationhood and the place of migrants within imagined national communities
(Brubaker, 1992; Geddes and Favell, 1999). Anti-discrimination policy frameworks
are patchy (Wrench, 1996). There have been concerns in member states with more
developed policy frameworks ­ such as the Netherlands and UK where direct and
indirect discrimination have been incorporated into national laws ­ that European
integration may erode national provision. Pollack (1997: 578) does, however, note the
7
potential for `baptist and bootlegger' coalitions `to "export" their own stricter national
standards to other member states of the Community'. Yet, in an institutional
environment where unanimity has been the norm there are significant
intergovernmental impediments to the institutionalisation of EU migrant inclusion
policy encompassing extended anti-discrimination provisions.
THE INSTITUTIONAL CHANNELLING OF TRANSNATIONAL
POLITICAL OPPORTUNITIES
If supranational political opportunities have emerged for pro-migrant lobbying then
they arise in relation to the conceptual and organisational configuration of EU
migration policy and the subsequent institutional channelling of pro-migrant political
action. Political opportunities can then be defined as a political and legal combination
of `material' (formalised resources of power or funding) and `symbolic' resources
(sources of normative and discursive power) (McAdam. McCarthy and Zald, 1996).
Three criteria underpin supranational political opportunities. First, the receptiveness
of the EU to claims for inclusion. Can the EU provide a more favourable venue with
new access points for pro-migrant lobby groups? Receptiveness can connect with the
desire of EU institutions to enhance their legitimacy by strengthening consultation
processes and building pro-European integration alliances with interest groups.
Immigration and migrants' rights do not appear to be electorally popular issues, in
fact the opposite appears to be the case. This need not mean unreceptiveness because
the `insulation' of supranational technocratic and legal processes from anti-
immigration/immigrant pressures of electoral politics can offer scope for protection of
migrant's rights. Guiraudon (1997) shows that decisions made behind `gilded doors'
8
rather than in the glare of public attention can be more accommodating of migrant
interests. National courts have secured the opening of `social and political spaces' for
migrants (Hollifield, 1992). It is not necessarily so important that migrants' rights are
electorally popular to ensure receptiveness than that migrant inclusion connects with
the legal and technocratic rationale of EU level actors. Arguments for inclusion can be
made that accommodate the rights of electorally unpopular diffuse interests.
The second criteria underpinning supranational political opportunities is the
availability of access points (Mazey, 1998; Wendon, 1998). Geddes (1998) identifies
overlapping technocratic, democratic and judicial avenues to representation and
influence for pro-migrant lobby groups. This suggest alternative venues at EU level
through the European Parliament, Commission and European Court of Justice, as well
as the ways in which the strategies and alliance-building of pro-migrant lobby groups
are channelled along these avenues of influence.
The third factor is the institutional motivations of EU level actors. The Commission's
`task expansiveness' (Majone, 1996) creates scope for `purposeful opportunism'
(Cram, 1994). It would be mistaken to view the EU as a lurking Leviathan with large
and expanding capacity to either intensify migrant inclusion/exclusion (to build'
fortress Europe') or to serve as a progressive arena capable of challenging national
processes of inclusion/exclusion (to develop some kind of multicultural EU). The
ceding of competencies for migration-related policies to EU level establishes capacity
in specific and limited areas with regards to migrant inclusion. More generally, EU
capacities in the social dimension have been likened to those of a `pre New Deal
liberal state' with a high level of civil rights and a low level of social rights (Streeck,
9
1996). Anti-discrimination legislation has been oriented towards `social policy as a
productive dimension' (Wendon, 1998). Claims for migrant inclusion appear more
likely to succeed if market-related functionality can be stressed rather than state
intervention that supposedly disrupts markets.
THE EU MIGRATION POLICY CONTEXT
New political opportunities and the issues of receptiveness, availability and
institutional motivations need to be specified in relation to the conceptual and
organisational basis of the EU's migration policy context. EU migration policy is
hybrid in that it contains intergovernmental and supranational elements. Intra-EU
migration (free movement for EU citizens) has been largely supranationalised while
extra-EU migration (immigration and asylum) remains subject to intergovernmental
co-operation in the main (Handoll, 1995; O'Leary, 1996, Geddes, 2000). Free
movement has, thus, been constitutionalised in the sense that Treaties between states
have been turned into laws that bind those states with the effect that an international
order characterised by anarchy becomes more ordered and hierarchical (Mancini,
1991; Caporaso, 1996). Supranational institutionalisation can then arise with the
possibility of unexpected outcomes to occur as a result of the empowerment of
supranational institutions (Stone Sweet and Sandholtz, 1998).
Connections between free movement, immigration and asylum have become
increasingly evident during the 1990s. This was confirmed by the Amsterdam Treaty
that resolved to create an `area of freedom, justice and security' covering free
movement, immigration and asylum. The development of Amsterdam's `area of
freedom, justice and security' depends upon unanimous decision-making among
10
member states for at least five years after Treaty ratification (until 2004). The core
component of arguments for migrant inclusion is that free movement, immigration
and asylum should become more closely connected because European integration
offers a potentially progressive counterbalance to lowest common denominator
decision-making (Kostakopolou, 1998). Lowest common denominator decision-
making prompts a focus on immigration control and internal security and the
`securitisation' of migration (Bigo and Leveau, 1992; Huysmans, 1995; Bigo, 1996;
Wver, 1996). Migrant inclusion has been cast in the shadow of securitisation. The
Commission, ECJ and European Parliament have been largely powerless in relation to
immigration and asylum policies. The Commission has tended to tread very
cautiously at the risk of offending national sensibilities in an area of `high politics'
closely associated with national sovereignty (Monar, 1994). EU immigration and
asylum co-operation have strengthened executive authority by allowing policy
competencies to become blurred and for decision-makers to slip political or judicial
control at either national or EU level (Geddes, 1995; Risse-Kappen, 1996; Freeman,
1998; Lavenex, 1998a). That said, Koslowski (1998) has argued that co-operation on
restrictive policy is still a form of integration because routinisation and elaboration of
cross-national ties between politicians and officials as they `wine and dine' (den Boer,
1996) their way around Europe can lead slowly to actors in the supranational
institutions of the Commission, Parliament and Courts being drawn in to these modes
of European co-operation. Everyday interaction can contribute to institutionalisation
as a result of iterative collaboration and policy-oriented learning (Greenwood,
Strangward and Stancich, 1998: 132).
11
Amsterdam also extended the anti-discrimination provisions of the Treaty from
nationality or gender to also apply to race, ethnic origin, religion, age, disability and
sexual orientation. These anti-discrimination provisions are not as strong as those
covering nationality and gender are. Amsterdam gives the Commission the power to
introduce proposals but Commission proposals require Council unanimity. The new
Treaty article was, though, seen as a vindication and an indication of success by the
pro-migrant interest groups that began to emerge at EU level through the 1990s, to
which our attention now turns.
THE EU MIGRANT INCLUSION AGENDA
Recent work on protest politics has identified the ways that the formation of
transnational advocacy networks allows `resource poor' actors at national level (such
as women's movements, human rights campaigners and environmental campaigners)
to seek new opportunities with `resource rich' international organisations that offer
transnational venues for protection of diffuse interests. The result of transnational
action can be a `boomerang effect' that strengthens national level actors by allowing
them to draw from internationalised practices and discourses of entitlement. In this
way, international standards and organisations constitute new arenas for claims
making and stimulate development of new transnational norms (Keck and Sikkink,
1998; on migrants claims-making see Soysal, 1994 challenged by Koopmans and
Statham, 1998). Yet the EU does not appear to be a `resource rich' haven for
`resource poor' pro-migrant organisations. As currently constituted, the EU possesses
very limited competence for issues impacting upon migrant inclusion. The EU may
perhaps only provides `weak weapons for the weak' (Guiraudon, 1999). There is a
discursive context at EU level where ideas about inclusion, democratisation and
12
protection of rights acquires some meaning, but this is not backed by hard and fast
legal and political resources.
Arguments for inclusion centre on institutionalising a migration policy context with
enhanced powers for supranational institutions in the belief that this offers scope for
more progressive policy outcomes. Institutionalist insights tell us that once European
policy commitments are established, then the likelihood of rollback is low and the
potential for unexpected outcomes increases (Pierson, 1996). Pro-migrant lobby
groups have emerged within a participatory context privileging the co-ordination
through Brussels-based umbrella groups of transnational, epistemic communities and
the development of pro-integration alliances between supranational institutions and
lobby groups. The Commission has an interest in co-opting relevant interest groups
and building pro-European integration alliances with relevant NGOs. These alliances
centre on the definition, construction and institutional response to `problems of
Europe', to which the solution can be `more Europe'. Prominent EU level pro-migrant
lobby groups (the Starting Line Group, the European Union Migrants Forum and the
European Council on Refugees and Exiles) call for more powers for the Commission,
Court and Parliament. They want to see more European integration because they view
it as potentially progressive counterbalance to lowest common denominator decision
making in the Council. This chimes with Commission task expansiveness and
purposeful opportunism, which mean that units within the Commission have been
keen to see greater EU involvement in areas such as immigration, asylum and
migrant's rights that relate to the EU's free movement objective. The Commission
funds pro-migrant organisations and seeks co-option where possible to create
mutually reinforcing relationships that render the EU `resource rich' by
13
constitutionalising and institutionalising migration policy competencies with potential
feedback effects into domestic structures.
Commission receptiveness to `migrant inclusion' arises from a confluence between
progressivism and instrumentalism. Whether or not the EU has a progressive view
about the rights of migrants is contestable. There is some evidence of a certain left-
leaning progressiveness at Commission level, albeit more clearly evident in units
dealing with social inclusion (Hooghe, 1997). The Commission has, however, been
just as keen to secure a seat at the table of securitised immigration and asylum
policies (Monar, 1994). If progressiveness is contestable then instrumental
motivations associated with task expansiveness enter the calculations. In areas where
there is a specific margin of autonomy resulting from the endowment of legal and
political capacities, then the Commission can act as a purposeful opportunist and
exploit the scope for European integration (Cram, 1994). In the aftermath of the
Amsterdam Treaty, EU institutions have sought to define a new role for themselves.
Commission proposals on temporary protection for refugees, the rights of third
country nationals, the action plan on free movement, immigration and asylum, and
discussion of extended anti-discrimination competencies all indicate this (CEC,
1997a, 1997b, 1997c, 1998a).
The claim for an enhanced policy role centres on three core components of the EU
level migrant inclusion agenda. First, rights of free movement that extend to legally
resident TCN's the same rights of free movement as those enjoyed by EU citizens.
This `denizenship' would mean the acquisition of rights as a result of legal residence
rather than acquisition of nationality (Hammar, 1990). The link between prior
14
possession of the nationality of a member state and EU citizenship ­ which enforces
the derivative character of EU citizenship - would be broken. This is a sensitive issue
because member states have tended to see access to national or dual citizenship as
repairing the partial membership of denizenship (Hansen, 1998). Second, anti-
discrimination provisions that prohibit racist, ethnic-based and religious
discrimination. The new Article 13 on anti-discrimination created potential for
Commission anti-discrimination proposals requiring unanimity in the Council before
they could be enacted. Given patchy national frameworks on these issues, policy
proposals are likely to be contentious. Third, asylum provisions judged `fair' and
`humane' to the extent that they accord with international legal standards. It is more
difficult to discuss asylum in terms of `strategies for inclusion' because asylum
policies are predicated upon protection of the rights of asylum-seekers and refugees.
The trend in EU member states is for tighter restriction on opportunities for asylum
seeking via external frontier controls and internal exclusion via the denial of access to
cash-paid welfare state benefits (as opposed to payment in kind via vouchers or in
reception centres, see Bank, 2000). Asylum as a Europeanised policy issue has tended
to mean inclusion within the EU's constitutional/institutional remit.
PRO-MIGRANT LOBBY GROUPS
Pro-migrant lobby groups have been particularly active since the early 1990s and
consolidated their activities when the Maastricht Treaty formalised EU level
cooperation on immigration and asylum. The groups sought co-ordination in the pre-
Amsterdam IGC by establishing an NGO network on European Refugee, Asylum and
Immigration Policy. This was composed of Amnesty International, Caritas Europe,
the Churches Commission for Migrants in Europe (CCME), the European Council on
15
Refugees and Exiles (ECRE), the European Union Migrants Forum (EUMF) and the
Starting Line Group (SLG). The UNHCR attended meetings as an observer. The
network also received support from other members of the EU's NGO network: the
European Citizen Action Service (ECAS), Fédération Internationale des Droits de
l'Homme, Jesuit Refugee Service Europe, Quaker Council for European Affairs and
the Red Cross-EU Liaison Office. It was also a Commission strategy to consult
societal interests widely during Treaty negotiations to try and offset some of the
difficulties experienced during the Maastricht ratification (Hix and Niessen, 1996).
Three more general observations on `Eurogroups' also have relevance for pro-migrant
organisations (Pijnenberg, 1998: 304). First is the question of resources. Many EU
level pro-migrant lobby groups receive financial support from the EU. This accords
with a fairly standard model of interest co-option evident across Europeanised policy
sectors (Mazey and Richardson, 1993; Greenwood, 1997). Pro-migrant groups are,
however, small organisations when compared to groups representing other diffuse
interests such as consumers, women's groups and environmentalists. This is
illustrated by the `one door, four doorbells' problem. Behind one Brussels door on
Rue Joseph II there are four pro-migrant organisations. The staff are able and highly
committed but forced to recycle their activities across organisations. An
organisational head count alone could over-state the size of the pro-migrant lobby by
ignoring personnel overlaps. Second, are points associated with hierarchy and
discipline. EU level pro-migrant groups tend to be `umbrella' organisations
representing the interests of sub-national and national organisations and face the
common problem identified by Streeck (1996: 85) that a reliance on horizontal co-
ordination can be a `weak substitute for consolidated formal organisation at national
16
level. This is particularly the case when the hinterland of diverse national policy styles
means that various national frames and the perspectives of not necessarily compatible
migrant and migrant-origin groups need to be included. Third, is the ambiguous
attitude of Community institutions. The Commission has incorporated notions of
migrant integration within the remit of the Employment and Social Affairs DG. The
post-1999 organisational reform of the Commission has, though, seen the creation of a
new Justice and Home Affairs DG that imports a strong security rationale into the
Commission. The effect is to reaffirm the point that the Commission is a multi-
organisation and that `orders of comprehension' can be segmented with separate
`universes of discourse' (Dunsire, 1978: 161).
Many of the most influential and active pro-migrant groups are human rights
(Amnesty International, European Council on Refugees and Exiles) or church-based
organisations (Caritas, Churches Commission for Migrants in Europe). They carry
with them moral authority with associated symbolic capital that can be used to back
their claims. Moreover, by operating at European level and identifying European
sources of legal, political and social power as the addressee of their claims, these
groups reproduce their own relevance and underline the importance of a rights-based
dimension associated with European integration.
The EU Migrants Forum is a pro-migrant organisation that accords with the interest
co-option strategy seen in other Europeanised sectors. Established by the Commission
in response to the 1991 European Parliament Committee of Inquiry into Racism and
Xenophobia (EP, 1991), the EUMF has experienced internal divisions and
management and financial problems (Danese, 1998). It was originally intended as a
17
broad inter-community forum encompassing migrant and non-migrant groups, such as
trade unions, opposed to racism (European Parliament, 1985). When established in
1991 it had a narrower remit and was more concerned with providing a forum for
expression of migrants' opinions than pursuing broader cross-community strategies
against racism. Internal divisions were evident at the Forum's General Assembly held
on December 16-17 1993 when the representatives of fourteen Turkish associations
walked out because they felt under-represented on the Forum's Executive Board.
Turks constituted a third of `migrants' (depending on the definition employed) but a
move to limit the voting weight of any ethnic group to a maximum of 10 percent was
seen as `anti-Turkish' (Migration Newsheet 133/94). In 1996 the EUMF was thrown
into further turmoil following allegations of financial mismanagement. The EUMF
has also been used by migrant groups to exert influence on governments in their
countries of origin as a way of indirectly exerting pressure on the EU member state in
which they resided (Kastoryano, 1994). The EUMF can be contrasted with groups
such as the SLG that seek to develop expert networks of academics and lawyers with
proposals to feed into consultation and development processes. The SLG was founded
in 1992 by a group of independent experts from six member states with the support of
the Churches Commission for Migrants in Europe (CCME), the British Commission
for Racial Equality (CRE) and the Dutch National Office against Racism (LBR).
On the asylum issue, the European Council on Refugees and Exiles (ECRE) serves as
the umbrella organisation for national refugee councils and similar organisations.
ECRE has sought to add a European dimension to national level lobbying strategies
and co-ordinate its activities with Amnesty, the UNHCR, Caritas, the Migration
Policy Group and the EUMF. ECRE faces difficulties influencing decisions made in a
18
secretive environment emphasising tighter restriction on asylum and was disappointed
with the Amsterdam Treaty (ECRE, 1997a, 1997b). ECRE described Amsterdam as a
technical transfer from the third to the first pillar without supranational checks such as
Commission involvement, powers for the ECJ and greater EP involvement. ECRE,
like other prominent pro-migrant organisations, views the supranationalisation of
immigration and asylum as a favourable development, as more progressive, and as a
positive restraining force on member state actions that have tenuous regard for
international legal standards. Amnesty International has also paid special attention to
EU asylum provisions and argued that the 1996-97 IGC was `a unique opportunity for
the European Union to pay concrete attention to human rights protection' (Amnesty
International, 1996: 2). Existing protection of asylum-seekers' rights was seen as
inadequate, particularly in the light of the `safe third country' and other provisions put
in place by EU member states. Amnesty's pre-IGC memorandum (1996: 9-10) argued
that: `The downward spiral of the member states policies towards the minimum
common denominator does not afford sufficient protection for those in need. More
and more restrictive national measures on asylum have been adopted over the past six
years in many member states. Amnesty International opposes this downward spiral
which appears to have no bottom'. Amnesty detected a continued gap in the
Amsterdam Treaty between EU provisions and international standards.
The activities of these groups demonstrates that the EU has to some extent provided
new institutional venues and access points for pro-migrant lobby groups seeking to
open new `windows of opportunity' (Kingdon, 1984). This has, however, occurred in
an unpromising institutional environment with a strong security emphasis and limited
Community competence for migrant inclusion. This unpromising institutional terrain
19
becomes more apparent when opportunities associated with supranational institutional
venues are specified.
The Commission had a migrant integration unit within the Employment and Social
Affairs Directorate but without clear ascription of legal competence to support its
activities. A senior Commission official with a strong and long-standing commitment
and who was keen to build alliances with representatives of migrant communities
headed the unit. The 1999 reorganisation of the Commission has seen creation of a
unit within the Employment and Social Affairs Directorate dealing with Fundamental
Rights and Anti-Discrimination incorporating migration policy, free movement,
racism and xenophobia. The absence of a Treaty base has clearly hindered
Commission activity in areas such as anti-discrimination, racism and xenophobia,
although there have been some initiatives funded through existing budget lines
without encountering resistance from the member states. For instance, 1997 was
declared the European Year Against Racism with Ecu 4.7 million towards projects in
member states designed to raise awareness of racism and xenophobia. Commission
funding has also been made available for projects that aim to stimulate NGO activity
at national level that seeks the social integration of non-national immigrants in
member states, to combat racism and xenophobia, and to assist refugees.
Collaboration with local authorities has included the `Cities Against Racism' (CAR)
and `Local Integration/Partnership Action' (LIA) projects. CAR ran between 1995
and 1997 and brought together local authorities and NGOs from 30 European towns
and cities (CEC, 1998b: 8). The LIA involved 23 cities developing local action plans
to combat racism. All these initiatives are, however, small scale and largely peripheral
20
because the Community has been hindered by insufficient attribution of capacity to
act in these areas and member state resistance to expanded competencies.
The problems of limited legal competence are compounded for the European
Parliament, which nevertheless has long displayed concern about racism and
xenophobia (European Parliament, 1985, 1991). Its Citizens Freedoms and Rights,
Justice and Home Affairs has been charged with continuing the work of the Civil
Liberties and Internal Affairs Committee. The basic problem for the EP has been that
it has lacked the legislative teeth to hold immigration and asylum decision-makers to
account. The EP has shown itself a willing ally for pro-migrant groups and a
consistent voice calling for Europeanised immigration and asylum policies with
legislative action against racist and xenophobic discrimination (European Parliament,
1998).
The most significant EU level action against racism and xenophobia actually arose
from an intergovernmental Franco-German initiative launched at the December 1994
Corfu European Council, which saw the creation of a Consultative Commission on
Racism and Xenophobia, chaired by the Frenchman Jean Kahn. The Kahn
Committee's April 1995 report proposed the creation of a European Observatory on
Racism and Xenophobia which, after some opposition from the UK, was established
in 1997 and based in Vienna (ECCCRX, 1995).
ARGUMENTS FOR INCLUSION
21
In this section the activities of pro-migrant lobby groups and the receptiveness and
availability of EU level institutional venues and access points are meshed to explore
specific arguments for migrant inclusion.
Resident's Charter
A Resident's Charter would extend to legally resident TCNs the same EU rights as
EU citizens. Pro-migrant lobby groups have used the existence of agreements between
the EU and third countries, such as Turkey and the Maghreb countries, to argue that,
because these association agreements gives established rights to some TCNs and that
these rights should be extended to all legally resident TCNs (Guild, 1998). This is a
sensitive issue because it undermines the derivative character of EU citizenship by
creating enforceable European level rights derived from residence rather than
nationality.
Before the ink had dried on the Amsterdam Treaty, the Commission proposed in July
1997 a Convention on the Rules for Admission of TCNs to the Member States of the
European Union (CEC, 1997c). The Convention used Maastricht's third pillar
provisions and stood no chance of adoption as proposed because the legal justification
was rendered obsolete by the Amsterdam Treaty, but the Commission announced the
intention to re-submit a proposal for a directive following ratification of the
Amsterdam Treaty. The UK-based Immigration Law Practitioners Association called
the Commission's proposed convention `revolutionary stuff indeed' (ILPA, 1997:1).
This was certainly the case when compared with Commission inactivity in these
areas. The Convention proposed enforceable rules on employment, self-employment,
study and training and the creation of a right to enjoy family life. The right to enjoy
22
family life would not be the same as for EU citizens. Member states would still retain
discretion over treatment of TCNs, although they would be obliged to justify any use
of national discretion on the admission of family members of TCNs. The draft
convention also contained free movement provisions creating a right for long-term
resident TCNs to move to any member state to take up employment. It also listed a
series of basic rights that they would take with them. These included equal treatment
with EU citizens regarding employment, self-employment, training, trade union
rights, the right of association, access to housing whether in the private or public
sector, and schooling.
There is clear convergence in approach between the Commission's proposals and the
arguments of pro-migrant lobby groups. The Starting Line Group exploited
opportunities created by the Amsterdam Treaty to propose rights of free movement
and social entitlements for TCNs (SLG, 1998). The SLG proposal derived the force of
its argument from association agreements between the EU and third countries.
Turkish citizens in EU member states are covered by the 1964 association agreement,
which gave Turkish nationals established rights in employment, residence and social
entitlements exceeding those given to other TCNs. The SLG argued that the rights
given to Turkish nationals should constitute minimum rights to be accorded to all
TCNs. It also was proposed that social rights acquired as a result of denizenship
become transferable within the EU. The proposal was therefore for a `Resident's
Charter' where rights acquired as a result of legal residence rather than acquisition of
nationality would become portable. This has important implications for citizenship,
nationality and migrant inclusion that often draws from an integrating frame inspired
by T.H.Marshall's famous analysis of national citizenship. Yet, the EU seems to
23
present us with is `a very anti-Marshallian kind of idea ... that certain rights might be
given to resident workers of the EU single market, unconditional on nationality,
belonging, moral investment in the nation, or even national welfare contributions.
Were these opportunities to develop, they may well open up a form of symbolic
legitimation of action not grounded in the old equality and justice based logic of
inclusion and incorporation that has been at the heart of most classic social
movements style campaigning' (Favell and Geddes, 2000: 25).
The SLG's proposals on rights of residence for TCNs stipulated that after three years
legal employment in one member state a TCN would enjoy free access to paid
employment or self employment in any member state. The SLG's proposed directive
mirrored the free movement provisions of the core 1968 free movement regulation
(1612/68) by allowing qualified TCNs exercising the right of free movement to be
issued with a residence permit for five years, with automatic renewal. TCNs would be
granted equal treatment with EU citizens covering employment, self-employment,
vocational guidance and training, trade union rights, the right of association, access to
public and private sector housing, social welfare, education, health care and the
provision of goods, facilities and services.
Are the member states prepared to accept Europeanised `denizenship' that would
extend EU rights to legally resident non-nationals backed by the EU's legal and
political system? The rights of TCNs were addressed at the Tampere special summit
meeting of EU heads of government convened in October 1999 that focused on
Amsterdam's Title IV provisions. The heads of government supported
`approximation' of the legal status of third country nationals with `uniform rights that
24
are as near as possible to those enjoyed by EU citizens' with the long-term objective
that they acquire the nationality of their state of residence. The French, German and
UK governments issued a note stating that TCNs `residing legally and long term were
entitled to be fully integrated' and `as soon as good integration has been achieved and
confirmed, it is natural and desirable that the foreigners defined ... should acquire the
nationality of their state of residence'. This emphasis on acquisition of national
citizenship and EU rights and entitlements indicates reluctance to cede competencies
impinging on nationality laws (Statewatch, September-October 1999).
Anti-discrimination
Anti-discrimination is an area where pressure across a range of inequality issues has
called for expanded EU competencies. Article 13 of the Amsterdam Treaty was
partial recognition in that it provided scope for action against discrimination on the
grounds of race, ethnicity, religion, disability, age and sexual orientation, albeit with a
requirement for unanimity. The SLG prepared a draft directive outlawing racial
discrimination modelled on the 1976 Equal Treatment Directive. The broad
provisions of Article 235 of the Treaty of Rome were the basis for proposed
legislation with direct effect. The `Starting Line' was endorsed by national lobby
groups and by the EP, but never implemented because of the lack of clear Treaty
competence and member state resistance.
After the Amsterdam Treaty was signed in October 1997, the SLG brought forward a
proposal for a directive that would put into effect the principle of equal treatment, and
legislate for EU action against direct and indirect discrimination. The SLG's proposed
directive stated that:
25
There shall be no discrimination whatsoever, direct or indirect, based on racial
or ethnic origin, or religion or belief in particular in the following areas: the
exercise of a professional activity, whether salaried or self-employed, access
to any job or post, dismissals and other working conditions; social security;
health and welfare benefits; education; vocational guidance and vocational
training; housing; provision of goods, facilities and services; the exercise of its
functions by any public body; participation in political, economical, social,
cultural, religious life or any other public field. (SLG, 1998).
The difficulty for a proposal of this kind is that it requires unanimity in the Council
and impinges on patchy national policies. In summary, existing EU level transnational
advocacy centred on anti-discrimination deploys arguments for inclusion that derive
much of their force from the principle of equal treatment in the single market, for
which the EU is endowed with competencies. Well-entrenched national policies, as
well as reliance on unanimity in the Council inhibit the scope for cross-border
diffusion of policy ideas.
The Commission has launched a debate on the use of Article 13 in its 1998-2000
social action programme (CEC 1998a). The Commission has announced the intention
to propose a `horizontal' directive covering all the forms of discrimination mentioned
in Article 13 to combat direct and indirect discrimination in employment and
occupation relating to employment and self-employment, vocational training, working
conditions, and membership of professional organisation or trade union. The
Commission also announced the intention to propose a `vertical' directive to counter
26
direct and indirect discrimination on the grounds of race or ethnic origin. This would
lay down minimum standards enabling member states to introduce provisions more
favourable to the protection of the principle of equal treatment. The directive would
cover the forms of discrimination mentioned in the horizontal directive, plus social
protection and social security, social advantages, education, access to the supply of
goods and services, and cultural activities and sports. As in the case of equal
treatment, positive action to overcome existing inequalities would be permitted.
Finally, an action programme to support and complement these proposals would
supplement legislative action.
Asylum
Arguments for inclusion centred on asylum have tended to concentrate on inclusion
within the Treaty framework with potential for constitutionalisation and
institutionalisation to prompt Union standards that accord more closely with
international legal standards, or so it is hoped. The prognosis is not too bright. There
has been strong criticism of `lowest common denominator' Council decision-making
that exacerbates restriction and renders more tenuous the relation between the
Europeanisation of asylum and international standards and norms. Concern has been
expressed about two aspects of development. First, the Amsterdam Treaty excludes
the possibility for asylum to be sought in one EU member states by citizens of another
EU member state. The proposal came from the Spanish government concerned about
the activities of Basque separatists. However, it has been argued that the protocol
could place the EU in contravention of the Geneva Convention. Dennis McNamara,
the Director of the Division of International Protections at the UNHCR, stated that:
the Protocol `in our considered view (supported by the Office of the Legal Counsel in
27
New York) violates the object and purposes and some of the basic provisions of the
Refugee Convention' (ECRE, 1997b). In this case a federalising logic of European
integration has overridden the asylum standards contained in international law.
A second area of concern has been the movement towards implementation of the
Dublin Convention with associated procedures relating to `manifestly unfounded
applications' and `safe third countries' to which asylum-seekers can be returned. The
EU has also moved towards systems of `temporary protection'. This has implied a
critique of existing international standards. The Commission's 1997 proposals for a
Joint Action on temporary protection was broadly welcomed by ECRE, but there was
some criticism because it did not specify a maximum duration for temporary
protection schemes after which persons would be allowed to regularise their status.
The suspicions of those who saw temporary protection as a way of reneging on
international obligations and seeking to circumvent constraints on immigration
control were heightened in July 1998 when the Austrian government presented a
paper on temporary protection. The Austrian paper suggested a re-evaluation of EU
asylum policy and a critique of the Geneva Convention, which was viewed as
outmoded and encouraging permanent settlement. The principle challenge to
Europeanised asylum with constitutional and institutional checks is the latitude given
to member states to establish policy co-operation that strengthens their restrictive
capacities and incorporates neighbouring states within the regime of control and
restriction. The recognition of `safe third countries' coupled with accession
agreements and other bilateral and multilateral accord has incorporated central and
eastern European countries into EU co-operation and integration (Guild, 1998;
Lavenex, 1998b).
28
CONCLUSIONS
Three Europeanised migrant inclusion issues have been addressed: Europeanised
denizenship, extended anti-discrimination, and reformed asylum procedures. Pro-
migrant lobbying has been channelled through a migration policy context that
structures pro-migrant political action and provides supranational venues and access
points for pro-migrant lobby albeit in an institutional environment where national
policy hinterlands are extensive and securitisation has tended to hold sway. Where
political opportunities for transnational pro-migrant advocacy have been created then
they have been channelled through an institutional context that favours the
deployment of expertise with scope for co-option into consultation processes. Pro-
migrant lobbying at EU level has tended to centre on the building of alliances between
lobby groups and sympathetic EU institutions, particularly the Commission and
European Parliament. Pro-migrant lobbying is not an example of new forms of
contentious politics or of EU level ethnic minority or immigrant mobilisation. It
exemplifies indirect representation and interest co-option via `avenues for influence'
with a strong technocratic and judicial bias. The potential for formation of pro-
integration alliances between supranational institutions and pro-migrant organisations
also suggests a strategic orientation on the part of pro-migrant groups towards
participation and compliance as a means of securing access to EU resources, as
opposed to opposition that runs the risk of exclusion from EU resources. Rather than
mobilising against `fortress Europe', pro-migrant groups have cultivated alliances
with EU institutions in an attempt to institutionalise `problems of Europe' to which
the solution can be more Europe. The constitutionalisation and institutionalisation of
29
migration policy offer potential for a progressive counterbalance to intergovernmental
policy co-operation, or so it is hoped.
Progress has been slow in relation to each aspect of the migrant inclusion agenda.
There is likely to be member states resistance to Europeanised denizenship. Member
states seem determined to retain the derivative character of EU citizenship with the
effect that national citizenship (or extended provision for dual nationality) will allow
access to EU rights and entitlements. There are also obstacles to the
institutionalisation of an extended anti-discrimination policy framework. The
Amsterdam Treaty does create competence for extended anti-discrimination
provisions, albeit with dependence on unanimity in the Council. A basic problem is
that EU level provision against direct and indirect discrimination would be a
significant increase in levels of protection than those pertaining in many member
states indicating national limits to cross-border diffusion of ideas. Member state co-
operation on asylum has shown tenuous regard for international legal standards.
Amsterdam does create the potential for ECJ jurisdiction, but by the time the ECJ has
its say the member states may have taken considerable steps to establish temporary
protection systems that off-load asylum to neighbouring states. There are clear
impediments to protection of the diffuse and seemingly electorally unpopular rights of
migrants. Yet, there are supranational opportunities for pro-migrant lobbying in
relation to Europeanised competencies that have established supranational venues and
access points for transnational pro-migrant advocacy groups and scope for alliance-
building with EU institutions. Arguments for inclusion centre on more Europe in the
belief that technocrats, judges and European parliamentarians can offer a progressive
counter balance to lowest common denominator Council based decision-making.
30
WORD LENGTH 9330
Andrew Geddes is a Senior Lecturer in the School of Politics and Communication
Studies at the University of Liverpool.
Address:
School of Politics and Communication Studies, University of Liverpool, Liverpool,
L69 7ZT, UK.
Phone: (0)151-794-2653
Fax: (0)151-794-3948
Email: geddes@liv.ac.uk
31
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