“If you give people more opportunities to move, then you decrease the pressure on irregular migration”.
Yves Pascouau is Director of Migration and Mobility Policies at the European Policy Centre. He holds a PhD in Law from the University of Pau in France and has worked extensively on migration management. Beside his current position at EPC, he is the editor of the online legal website European Migration Law www.europeanmigrationlaw.eu.
Yves Pascouau explains that we have to start thinking differently about migration. On the one hand, EU nationals moving within the EU should enjoy the same rights as the citizens of the country that receives them, as long as they are not a burden to the social system. On the other, all non-EU citizens fleeing conflict and arriving at the EU borders should be properly screened to see whether they need asylum and protection. Non-EU citizens wishing to come to EU countries to find jobs should be given this opportunity through short-term visas. Finally, Yves Pascouau says that we need to be creative in partnering with EU’s neighboring countries and allow legal migrants to move and work freely within the EU, just as EU citizens do. It is only through these measures that he thinks the EU can truly benefit from migration’s positive effects: advancing the EU single labor market and strengthening the EU’s economy.
RALUCA RADUTA: You focused part of your work on third country nationals (TCN). Who are we referring to exactly?
YVES PASCOUAU: Third country nationals are all the non-EU citizens. When we talk about migration, we talk about third country nationals. We should never use migration to talk about the freedom of movement of EU citizens, because freedom of movement is a right. We have seen politicians like Cameron using the word migration for freedom of movement. This opens the door for EU citizens to be treated as migrants inside the EU, which means that their rights may be diminished.
What would be the benefits for guaranteeing freedom of movement for third country nationals in the EU?
Freedom of movement is only awarded to some categories of non-EU migrants. Highly skilled workers can move freely after 18 months of working in one country, students and researchers can move for the purpose of their research, and then you have long-term residents. The latter have resided 5 years in a member state and have acquired the long term resident status which allows them to move to another country. Those who do not fall within these categories cannot move under EU law. For example, let’s consider a Moroccan working in Spain for 2 years, and then willing to move to Germany, he moves under the German law not under the EU law. Relaxing or making the possibility for TCNs to move as EU citizens under EU law would be interesting for TCNs because they will say “I want to go to Europe because in two or three years time I can move to another member state and get a job over there”. From the EU side, this would be a step forward in the completion of the European single labor market. Currently, we are seeing Greeks, Portuguese and Spanish moving to Germany, Austria or Netherlands, where the jobs are. TCNs should also be able to move. Here is an example regularly quoted by former commissioner Vitorino. Before the crisis Ukrainian people were working in Spain. When the building bubble burst they lost their job, then they moved where the jobs were… in Portugal. So they crossed a border, which is non-existing anymore because we are in the Schengen Area, but as a matter of law, they went from being regular in Spain to being irregular in Portugal. So we have to make intra-EU mobility possible if we want to foster the European single labor market.
There was a recent case of a Romanian woman being refused her right to stay in Germany. Are we, actually, beginning to see a restriction in the freedom of movement of EU citizens within the EU?
EU citizens have the right to reside in EU states, provided that they fulfill certain conditions: first they should have sufficient resources, second they should be affiliated to a social security system, and third they should not represent a threat to public order. The Dano case is famous. The solution for the Dano case given by the European Court of Justice was a clear and simple application of the law. Ms. Dano did not fulfill at all the conditions, and in the years that she lived in Germany she didn’t try to have access to the labor market. It is then up to the German authorities whether they ask her to go back to Romania or grant her a residence permit for whatever reason. The whole meaning of the system is that you are free to reside in another member state as long as you are not a burden for the social system. She was considered a burden, so she didn’t have the right under EU law to reside in Germany. So we are not seeing a restriction, in this case, it was an application of the law.
What about putting a deadline on the social welfare given to EU citizens living in another EU member state? It seems that European leaders, like Merkel and Cameron, are discussing this now.
We have to keep in mind that under EU law, once you have fulfilled the conditions, you have to be treated equally with the other national citizens. If you want to diminish the rights of EU mobile citizens, this has to be done also for your own citizens. This is the principle of equal treatment. If you want to limit some of the rights granted under the 2004 Directive, you have to modify the rule and opening the negotiations on the Directive is extremely dangerous. The Directive is the codification of nearly 40 years of freedom of movement, from 1968 onwards.
It is clear that there are some abuses… in every system people abuse the system. But the share of people abusing the system in this case is small according to the share of people enjoying the right to freedom of movement.
At the EU level, the EC has adopted a document in 2011 to help member states to avoid abuses; I think that if we consider that in every system there is a share of abuse, and given that we have the legal framework to avoid abuses as much as possible, then we don’t have to modify the law just because some families are taking advantage of the benefits.
Big companies complain that in Europe there is a shortage of labor that makes them have to hire from outside Europe, but at the same time there is significant unemployment in many EU countries. How do you explain that?
This is a very difficult question. Most of the answers are coming from the economic world. It is not because you have one thousand job vacancies and one thousand job seekers that everybody is going to match. There are many elements to take into account. What is the type of job available, do we have on our market people able to fulfill the conditions, and do they have the willingness to take up the job? In Europe we don’t have the same culture of having our lives driven by our job activity like in other parts of the world. It is pretty clear that in other parts of the world, job access defines where you will be living and if you have to change ten times jobs and ten times towns you will do that. I am not entirely sure that in Europe we have the same way of looking at this. Plus, in Europe we have a language barrier, which may be very strong in some situations. So it is not a very simple situation.
It seems that there is little known about the benefits of migration and freedom of movement in Europe. Is there sufficient data on this?
There are plenty of studies, surveys, concerning EU citizens, third country nationals, showing that from the economic point of view there are many benefits, but we are living a political time where you can do whatever you want, but once a politician says this is a burden, this is negative, then it becomes an irrational debate. And you can bring all evidences you want on the table and say that this is not a threat, this is a benefit, the political climate is that bad that you are not able to overcome this negative debate.
Events such as the attacks on Charlie Hebdo in Paris might encourage this negative debate, right?
Some politicians have immediately drawn the link between terrorist attacks and migration. This is absurd …but could be explained. It is absurd because if we have a look at the people behind the crimes in Paris or in London and even Madrid, they were second and third generation migrants, so citizens of those countries already. So this is not a question of migration. That is why linking terrorism and migration is difficult to understand from a legal point of view. However, the migration phenomenon is mainly driven and managed by interior ministers in charge of internal security. This is why the link is automatically made in the minds of the people. Migration issues concern family reunification, workers, refugees, and some people crossing irregularly or overstaying their visa. If you look at the first categories, we are dealing with people who have the right to stay, and it is awkward that their situation is managed by interior ministers, and not labor and social affairs. But as we have given responsibility of these issues to security oriented ministers, then we are dealing with these issues in a security oriented manner – and once we have set that picture, the link between terrorism and migration is automatic.
Many of the migrants reaching for Europe die trying. They are in need of asylum, but not all. Many are economic migrants. What happens to asylum seekers that are found to be economic migrants?
We have a duty under international conventions and under EU law to protect people in need, so EU member states have to make sure that people arriving in their countries have their claim examined and to determine whether they are entitled to asylum or not. If they are not asylum seekers they may not be allowed to reside in the EU, they can be deported. But the vast majority of people arriving today by sea are Syrians, Libyans, Eritreans, and in need of international protection. No one has forced Europeans to sign the Geneva Convention or the rules on asylum. We have to implement the rules now that we committed ourselves to this legal obligation.
How does one make sure that they are not economic migrants?
National authorities, UNHCR, the European asylum support office,… they are in charge of determining this. My opinion is that any person arriving even mentioning the word asylum has to be considered an asylum seeker. More than 3 million Syrian refugees are protected in the five neighboring countries of Syria, which means that the 28 EU countries comprising 500 million inhabitants are taking less than 3% of the total amount of Syrian refugees. We have established the best protection system in the world, but it functions only when people are on the EU territory…some people died in the sea but some were luckier and once they put feet on the EU soil their asylum application is considered.
What about the Dublin regulations, which tie migrants to the first country they enter the EU and in case of reapplying for asylum in other EU countries, they get returned to that first country. Does this work in practice?
I think that the Dublin regulations should have entered into force once the Common European Asylum System was established. It is the last piece of the whole picture. In practice, member states who are taking the biggest responsibility in examining the asylum claims are at the borders of the EU, they are overburden, we see that people do not want to stay in these countries, and they want to move away.
What we have not understood yet is that many of the asylum seekers will receive a status and a lot of them will then move from a situation of potentially inadmissible to protected migrant who has to integrate into society. The Dublin regulation should be seen through the lenses of integration, not only through the lenses of security. For example: the definition of family members could be broadened, the language be taken into consideration and communities considered as one element to foster integration….
We have to apply the Dublin criterion with the idea that those people will remain in the territory and integrate. Then we would be able to redistribute asylum seekers to countries where they have better chances of integration and rebuild their lives, because those people have lost their lives and have to rebuild themselves. If we give them this possibility, it will be extremely positive for them, for the receiving society and for the EU as a whole.
How can good management of legal migration curb irregular migration in the EU?
You open more legal ways to access the EU. We should start thinking about establishing clear and true freedom of movement schemes with some countries in EU neighborhood such as Morocco and Tunisia.
For example, a Tunisian worker should be able to enter the EU for one month to seek a job, and after that period, we can say: you haven’t been able to get a job, please go back home, and then you can try again in 3 or 6 months time. This will enable people to know, to see if there is anything for them jobwise and know the country. This can help manage overstays of visas as well. In case of overstay, you will not be able to reapply for several years. This could be a balance.
So if you want to relax the pressure on irregular migration, you have to play on the possibility for people to move back and forth. Migration is a question of mobility. Today migration is not the same as migration 40 years ago. People are moving back and forth,… there are different channels, ideas, different willingness and different means….