Nationality and (in) migration

1
Nationality and (in) migration

• ENAR Policy Seminar
• Brussels, 6-7.10.2004

2
Intro

• Im not a lawyer
• References
• R. Bauböck, E. Ersbøll, K. Groenendijk, H.
  Waldrauch (eds.), Acquisition and loss of
  nationality. (NATAC report)
• ENAR, Equal treatment of third country nationals
• A. Sen, Identity and violence. The illusion of
  destiny

3
This presentation

• Hints about discrimination on the ground of
  nationality
• What is nationality? A framework
• European debate
• Approaches for further discussion

4
Nationality discrimination

• Prohibited by TEC only against nationals of
  Member States. (until?)
• ? Directives 2000/43 and 78 dont apply to
  nationality/citizenship status and immigration
  laws
• but apply to every person in the EU
• ? equality before a different law

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Nationality discrimination

• Member States misuse exemptions to evade
• their legal obligation to ensure that asylum and
  immigration laws are not discriminatory
• their political commitment to ensure fair
  treatment of third country nationals
• Ex jobs reserved to nationals, social housing
  criteria, welfare limitations, discretionary
  controls, detention centres

6
Nationality possible definitions

• Legal relationship between individuals and states
• Legal bond between a person and a state implying
  links to international law

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Citizenship possible definitions

• Equal membership in a self-governing political
  community
• Sum of legal rights and duties of individuals
  attached to nationality under domestic law.
• ?
• Inclusion / exclusion
• Equality / discrimination

8
Citizenship a complex concept
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European citizenship

• A thin layer of additional rights placed on
  top of a thicker national citizenship
• Introducing a divide between social and political
  community
• Defined largely by exclusion (of non MS nationals)

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Rights and duties

• Political rights
• (voting)
• Participatory rights
• (assembly)
• Free movement
• Non discrimination

• Loyalty
• (laws, institutions, defence)
• Social duties
• (work, self-reliance)
• Economic duties
• (taxation)

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Challenges

• International migration
• ?
• Multiple affiliations
• ?
• Political communities across borders.

• Sub-national groups
• ?
• Identity as oppression
• ?
• Political communities within borders

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Trends EU convergence?

• No European model, but some factors call/push
  for/towards common standards
• Pressure from above and from below
• Individual MS nationality policy determines
  rights in all Member States
• Copying other MS answers to problems
  either/both immigrant integration or/and
  anti-immigrant populism
• Trans-national case law
• Trans-national migrant networks and NGOs
  cooperation.

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Trends (2000 - 2005)

• More restrictive in Denmark, France, Greece, the
  Netherlands, the United Kingdom, Austria)
• More open in Belgium, Finland, Germany,
  Luxembourg, Sweden, Portugal, Italy).

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Trends (2000 - 2005)

• Facilitated acquisition of nationality (second
  generation)
• Reduced residence periods (first generations)
• Accepted double / multiple nationality
• Abolition of integration requirements (Belgium)

• Restricted rights (2nd generation)
• Stricter language and integration requirements
  (1st generations)
• Increased residence and marriage duration
  requirements, reduced exemptions (spouses)
• Formal examinations of language skills and
  knowledge of society (Denmark, France, The
  Netherlands, Greece, UK, Austria, Luxembourg
  2005)
• language tests for foreign born nationals (The
  Netherlands)

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Trends summing up

• Yesterday
• Naturalisation as a means for integration
• Today
• Naturalisation as the crowning of a completed
  integration

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EU at work issues in debate

• Residential citizenship
• Equal rights (time constrains)
• Civic citizenship
• Comparable rights (e.g. no voting rights)
• Constitutional patriotism
• Identity built on shared values and legal
  framework
• Cosmopolitan citizenship
• Equality because of common human nature

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EU at work action

• Effective as usual

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Effects nationality ? residence

• Divide between social and political community
• Definition by exclusion
• Pretence of homogeneity
• Lack of shared / trusted (constitutional) values

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Effects nationality vs residence

• Inclusion deficit
• ?
• trust-building deficit
• democratic legitimacy deficit
• social / economic integration deficit

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Possible approaches

• Prohibition of nationality discrimination
• UNDHR, CERD, Recommendation XXX
• Application / extension art.12 TEC
• New Community legislation
• (lawyers, step in!)

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Possible approaches

• Extension of nationality /citizenship
• citizenship of residence, harmonisation
• Facilitated naturalisation
• Economic approach
• free movement of workers,
• Common (labour) market

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Possible approaches

• Political / cultural approach
• Focusing on multiple discrimination
• Debunking the myth of single identity
• Building on diverse diversities

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Thanks(God, its over!)