21 November 2016

Third country nationals and freedom of movement in the EU

Extending full freedom of movement to third country nationals residing in the European Union would present a number of advantages.

The free movement of people is one of the four fundamental freedoms upon which the European Union’s Single Market is constructed, along with the free movement of goods, of capitals, and services. It allows EU citizens to move across borders and reside in any of the Union’s Member States without the need to show passports or obtain visas. Over time a European space has been created where national borders have lost significance, and European citizens are able to move freely as they would within the borders of a single country.

Only European citizens benefit from free movement. Third country nationals (that is, non-EU citizens who are legal residents) are excluded from the enjoyment of this right. On the one hand, this provision seems appropriate, for the EU is not a state, and the rights that its citizens enjoy result from a contract among Member States. Not being part of the contract implies not enjoying the rights that come with it. On the other hand, however, this area of freedom of movement is rather peculiar if compared it to the standard space where people are allowed to move freely, i.e. the nation state. While in the EU only European citizens are granted free movement, in a nation state this right is enjoyed by anyone legally residing within its borders, whether they are citizens or just legal residents. As a result, third country nationals legally residing in one European Member State enjoy a very limited access to freedom of movement, and must go through normal immigration procedures if they want to move to another member state for periods exceeding three months.

The legal framework

EU legislation currently regulates certain categories of third country nationals already residing within the EU, giving them preferential treatment over third country nationals entering the EU for the first time. Directive 2003/109/EC targets third country long-term residents, who may apply for a residence permit in a second Member State only after they have acquired long-term residence status in the first Member State, that is after five years. Directive 2009/50/EC concerns highly skilled workers: once they obtain a Blue Card in their first Member State of residence, they may be allowed to move to a second Member state after 18 months. However, they must apply for a second Blue Card in the second Member State, where they must meet the same conditions they were required in the first. Directive 2005/71/EC and Directive 2004/114/EC target, respectively, researchers and students: they, too, must apply for a second permit for any stay exceeding three months in a second Member State.

Making freedom of movement conditional on Member State citizenship amounts to discriminating between categories of residents. Freedom of movement, though, is not normally understood this way.

All directives allow considerable discretion to Member States as to how to set the requirements that must be met to move to a second EU country. Furthermore, third country nationals not belonging to the abovementioned categories are not covered by EU legislation: for any stay over three months, national immigration rules apply. In sum, these norms do little to enhance third country nationals’ mobility rights. In all cases, third country national legal residents must apply for a second permit in the second Member State, and thus still go through national immigration procedures: the area of free movement is, in other words, precluded to them.

Free movement as a basic human right

Making freedom of movement conditional on Member State citizenship amounts to discriminating between categories of residents. Freedom of movement, though, is not normally understood this way. Differently from what happens in the EU, in a nation state free movement is granted to anybody legally residing within its borders, that is to citizens as well as legal residents. More generally, rights can be grouped according to the specific claims supporting them, which can be “claims of residence” or “claims of membership” (where membership refers to membership of a political community, namely citizenship).

Claims of residence are normally associated with the mere residence in a country: they do not depend on one’s membership of the political community. The majority of rights granted to individuals in contemporary democracies are of this kind: civil rights (such as freedom of speech and opinion); human rights (such as the right to decent housing); and some social rights—the right to decent working conditions, for example. Claims of membership, instead, include a more limited set of rights, namely political rights and certain social rights, such as participation in pension schemes and distributive programmes. These latter claims are considered membership rights as they require a long-term commitment to the political community in order to be enjoyed by individuals. Freedom of movement is a claim of residence: it does not depend on the individual’s legal status as a citizen to be enjoyed. Residing legally within a country is enough, because freedom of movement is to be considered as a basic human right.

The equal moral status of human beings is viewed as the moral foundation of basic human rights which, for this reason, are thought of as belonging to everyone, regardless of a person’s legal status. Other rights, conversely, find their moral justification in the existence of a specific relationship, which may or may not arise, and are for this reason defined as special rights. One example is the right to protection against injury in the workplace. Everyone is potentially entitled to this right, but only a person who enters a specific work relationship will benefit from its protection.

The UN Universal Declaration of human rights may help establish under which category freedom of movement shall be included, as it remains one of the fundamental documents containing a list of human rights, however imperfect and disputed, and as such it draws attention to their legal and common sense understanding. Article 13.1, regarding freedom of movement, reads: “Everyone has the right to freedom of movement and residence within the borders of each state.” Its formulation indicates its universal application—“Everyone has..”—but it is then spatially limited to the boundaries of each state. The only reason for this limitation is the very existence of states and their borders. Moreover, the sentence “..within the borders of each state” does not require, for freedom of movement to be enjoyed, that one is a citizen of the state in which she resides. This limitation thus simply implies that this fundamental right is curtailed in its application due to the existence of borders, in accordance with other states’ immigration policies: its application is limited because of contingent reasons.

The different ways in which the UN Declaration treats freedom of movement and the right to vote highlight the different nature of basic human rights and special rights, which include claims of membership. Article 21 states that “Everyone has the right to take part in the government of his country, directly or through freely chosen representatives”. There are two main differences between this right and freedom of movement as expressed in article 13.1. First, an individual has the right to vote and be elected in his own country, while freedom of movement (and residence) can be enjoyed by everyone within the borders of each state, not just his own. Secondly the existence of states restrains freedom of movement, which exists independently of states; by contrast, people’s right to vote depends on the existence of a specific form of collective institutional organization, that is the state. It is, for this reason, a right of membership.

Extending this right to third country nationals may seem unfeasible. Yet, separating freedom of movement from citizenship, and from full social protection could present a number of advantages.

Similarly to the right to vote, the right to social security—i.e. distributive programs that move resources from the better off to the worst off—and to pension schemes require a high degree of commitment to a political community where members have agreed to pool their resources together.

Is freedom of movement for third country nationals desirable?

Considering rights as either claims of residence or claims of membership can be particularly helpful in the case of the EU. A lot of scepticism now surrounds freedom of movement, even as it applies to EU citizens, as it is widely perceived that free movers will erode the host state’s welfare system. Extending this right to third country nationals may seem, therefore, politically unfeasible. Yet separating freedom of movement from citizenship, and from full social protection could present a number of advantages.

First, and most obviously, third country nationals who legally reside within the EU would not be discriminated and would be allowed to move freely across borders of EU member states. The number of mobile third country nationals is very low if compared with overall intra-EU migration, which means that arguments about the disadvantages of host countries—even if considered generally plausible—would not apply in this case. Second, and connected to the foregoing, the connection between free movers and welfare erosion would be harder to make. Not only is the claim that legal immigration erodes welfare yet to be proven, but it is normally the case that immigrants’ net contribution to the host economy is positive. Decoupling free movement from full social protection should further prove that migrants are an economic resource and not a burden.

In addition, the value of national citizenship would not be undermined by this provision. Migrants would not apply for national citizenship in a Member State as a means to obtain free movement rights, and thus for instrumental reasons, but merely because they feel a commitment to the new society. Finally, allowing third country nationals to move freely once they are legal residents would call for a harmonization of immigration policies among Member States, because once free movement is granted to all legal residents, the only borders that would still matter would be the EU’s external ones. This could be a first step towards a unified immigration policy for the EU which, as the refugee crisis has shown us during the last two years, is urgently needed.

Photo Credits CC Pedro Ribeiro Simões

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