CROSS-BORDER WELFARE STATE

Transcription

1 CROSS-BORDER WELFARE STATE Immigration, social security and integration Edited by Gijsbert Vonk With contributions by: Gijsbert Vonk & Sarah van Walsum Paul Schoukens & Danny Pieters Klaus Kapuy Lieneke Slingenberg Eva Hilbrink Jeanine Klaver & Arend Odé Karin de Vries Will Tinnemans, Saskia Moerbeek & Dilek Karaağaçli Daan Beltman Cambridge Antwerp Portland

2 Publishing Ltd. Trinity House Cambridge Business Park Cowley Road Cambridge CB4 0WZ United Kingdom Tel.: Distribution for the UK: Hart Publishing Ltd. 16C Worcester Place Oxford OX1 2JW UK Tel.: Distribution for Austria: Neuer Wissenschaftlicher Verlag Argentinierstraße 42/ Wien Austria Tel.: office@nwv.at Distribution for the USA and Canada: International Specialized Book Services 920 NE 58th Ave. Suite 300 Portland, OR USA Tel.: (toll free) info@isbs.com Distribution for other countries: Publishing nv Groenstraat Mortsel Belgium Tel.: mail@intersentia.be Cross-Border Welfare State. Immigration, social security and integration Gijsbert Vonk (ed.) 2012 Cambridge Antwerp Portland ISBN NUR 825 British Library Cataloguing in Publication Data. A catalogue record for this book is available from the British Library. No part of this book may be reproduced in any form, by print, photoprint, microfilm or any other means, without written permission from the publisher.

3 PREFACE This book contains the findings of the Cross-Border Welfare State research programme. This programme started in 2006 and created a liaison between the law faculties of the Vrije Universiteit Amsterdam, the University of Groningen and University of Leuven. Regioplan and the Bureau Maatschappelijke Participatie offered contributions. All the researchers who were involved (and some supervisors), have presented their work by means of a short chapter. The first chapter, written by Sarah van Walsum and myself, is longer and contains a overall analysis of the research findings. The book has been prepared specifically for the Access Denied Conference which took place in Amsterdam on 13 and 14 March The conference commemorated the closing of the Cross-Border Welfare State research project and launched a new international research network centring around the development of alternative policies for the social protection of irregular migrant workers, with the moral support of a number of international organisations and NGOs ( I am indebted to the Stichting Institute Gak for its unfailing financial support, trust and patience. I also thank Daan Beltman for his assistance in editing this book. On behalf of the authors Gijsbert Vonk (programme leader) v

4 CONTENTS Preface v List of abbreviations xv PART A. OVERALL ANALYSIS OF THE RESEARCH FINDINGS Access denied. Towards a new approach to social protection for formally excluded migrants Gijsbert Vonk and Sarah van Walsum Introduction Background to the study Object, purpose and structure Object and central question Purpose Structure Some limitations and definitions The Netherlands as a fixed point of reference Defining irregular immigrants Defining social protection and social inclusion Defining civic integration The exclusion of migrants from formal social security General lay out The logics of inclusion and exclusion in the original position The social security perspective The perspective of immigration law The perspective of civic integration The dynamics of inclusion and exclusion of migrants in social security Sphere convergence: general remarks Immigration policy and social security: the legal residence test Immigration policies and civic integration: the consequence of failure to meet civic integration obligations vii

5 Contents Civic integration policies and social security: retrenchment to the national border The impact of human rights on the exclusion of irregular immigrants from basic social rights Final observations The postion of migrants in informal social security Preliminary remarks Formal and informal social security Insights from the informal perspective Composition of paragraph Irregular immigrants and regular immigrants Informal social security arrangements: three examples Transnational effects of including migrants into national health care benefits Transnational arrangements for housing and (paid) care Financial provisions for retirement in the country of origin The outcome of the case studies: general discussion Interaction between formal and informal social security arrangements Modern communication technology Varying structures of informal support Varying dynamics of dependency Final observations Towards a new approach to social protection for formally excluded migrants The need for an alternative approach? Building blocks for an alternative approach Respecting basic human rights Extra-territorial responsibility for emigrants International co-operation in the event of return Respecting basic human rights Providing support in individual cases of exceptional vulnerability and need Respecting and protecting informal and private social security arrangements Extra-territorial responsibility for emigrants International co-operation in the event of return Summary and final conclusions Summary Access denied: the road ahead viii

6 Contents PART B. ESSAYS ON MIGRATION AND SOCIAL SECURITY Irregular labour migrants and access to social protection Paul Schoukens and Danny Pieters Introduction and conceptual framework The irregular labour migrant and international law Instruments of principle and human rights instruments UN and ILO Council of Europe Instruments relating to the minimum standards of social protection UN and ILO Council of Europe Non-discrimination provisions UN and ILO Council of Europe Instruments relating to the social protection of migrant workers UN and ILO Council of Europe Some national approaches Right to health care Access to social assistance Right to social insurance benefits Which social protection to grant to irregular labour migrants? The sovereignty of states to regulate access to the country The sovereignty of states to regulate work in the country The equilibrium between rights and duties of the people under social protection The respect for human rights and the respect for the special needs of migrants Coming to a balanced approach of access to social protection Irregular migrant workers and social security Klaus Kapuy Background International legal framework National social security law Proposal Personal scope of application Entitlement criterion: qualifying periods and waiting periods ix

7 Contents 4.3. Entitlement criterion: payment of social insurance contributions Entitlement criteria related to the national labour market Workers compensation and similar schemes Medical treatment Children and social security protection Practical issues Relationship with immigration law Compliance with international obligations Concluding remarks The EU Directive on reception conditions for asylum seekers in relation to international law Lieneke Slingenberg Introduction Separation and convergence EU Directive on Reception Conditions for Asylum Seekers Equal treatment? Basic minimum rights? Introduction International Covenant on Economic, Social and Cultural Rights European Convention on Human Rights Concluding remarks Relevance of being an asylum seeker Assessment of EU Reception Conditions Directive in relation to international law Introduction Material benefits Health care Reduction and withdrawal of reception benefits State obligations not addressed by the EU Reception Conditions Directive Concluding remarks The approach of the ECJ and the ECtHR to income requirements in immigration law. How the immigration clause affects judicial means-end scrutiny Eva Hilbrink Introduction: the inevitable arbitrariness of income requirements The ECtHR approach The ECJ on income requirements regarding European Union citizens and their family members x

8 Contents 4. The ECJ on income requirements in the Directive on Family Reunification The main difference between the ECJ and the ECtHR explained Summary PART C. ESSAYS ON MIGRATION AND INTEGRATION Civic integration in the Netherlands. A new approach towards citizenship Jeanine Klaver and Arend Odé Introduction Notions concerning citizenship and integration Active citizenship: active participation and individual responsibility Shared citizenship: common values and institutions Moral citizenship: loyalty and identification Civic integration policies: an overview Civic integration in the Netherlands Overseas civic integration Civic integration and nationality acquisition Civic integration and modern citizenship Civic integration and citizenship as status Civic integration and citizenship as rights Civic integration and family rights Civic integration and residence rights Civic integration and social rights Civic integration and citizenship as engagement Dutch civic integration policies and citizenship as identity Beyond civic integration? Concluding remarks Drawing the border of the nation. Integration as a condition for admission Karin de Vries Integration testing abroad: connecting integration and access Integration requirements as an instrument of citizenship Changing notions of integration and citizenship in the Netherlands: From ethnic minorities to active citizens : equality and socio-economic integration Towards shared citizenship : Dutch culture as a standard for integration xi

9 Contents The Act on Integration Abroad: integration as a ground for exclusion After 2007: a return to active citizenship? Changes to the integration exam abroad Objections to the Dutch conceptualisation of citizenship and integration Shared citizenship as a cultural norm: one-sided adjustment to the Dutch identity? Integration as a ground for exclusion: a fair balance of interests? Integration requirements in immigration law Integration versus admission Integration versus equality The content of integration requirements Compatibility of the Dutch integration exam abroad with immigration law standards Conclusions PART D. INFORMAL SOCIAL SECURITY FOR FORMALLY EXCLUDED MIGRANTS Across the border. A study into undocumented migrants and transnational forms of social security Will Tinnemans, Saskia Moerbeek and Dilek Karaağaçli Introduction Changes in the group of excluded migrants World citizens Different forms of solidarity and Turkish Bulgarians Social and ethnic solidarity Transnationalisation of migration and Filipino domestic workers Migration and development and the Latitude Care Network Follow-up questions New forms of insurance? xii

10 Contents PART E. SOCIAL PROTECTION AND VOLUNTARY RETURN Voluntary return facilities for foreign nationals without residence permits in comparative perspective Daan Beltman Introduction Voluntary return: definition and target group Voluntary return facilities in the Netherlands Voluntary return facilities in Belgium Voluntary return facilities in Germany Voluntary return facilities in France Voluntary return facilities in the UK Rationale behind return facilities Concluding observations Bibliography Other sources of reference List of case-law About the authors xiii

11 LIST OF ABBREVIATIONS AGEF AME ARH ARV AVRFC AVRIM BAMF BMP CEFR CESCR CFMW CoE COS CTHB DG DT&V EC ECHR ECJ ECMW ECSMA ECtHR EEA EEC EMN ERSO ESC FRS GARP HRT ICCPR ICESCR ICMW ILO Arbeitsgruppe Entwicklung und Fachkräfte Association Malienne des Expulsés Aide au Retour Humanitaire Aide au Retour Volontaire Assisted Voluntary Returns for Families and Children Assisted Voluntary Return for Irregular Migrants Bundesamt für Migration und Flüchtlinge Bevordering Maatschappelijke Participatie Common European Framework of Reference Committee of Economic, Social and Cultural Rights Commission for Filipino Migrant Workers Council of Europe Centra voor Onwikkelingssamenwerking Convention on Action against Trafficking in Human Beings Directorate General Dienst Terugkeer & Vertrek European Commission European Convention on Human Rights European Court of Justice European Convention on the Legal Status of Migrant Workers European Convention on Social and Medical Assistance European Court of Human Rights European Economic Area European Economic Community European Migration Network European Reintegration Support Organisations European Social Charter Facilitated Return Scheme Government Assisted Repatriation Programme Herintegratieregeling Terugkeer International Covenant on Civil and Political Rights International Covenant of Economic, Social and Cultural Rights International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families International Labour Organization xv

12 List of abbreviations IMO IOM ISSA LCN MbT NGO OCMW OFII OWWA REAB REAG REAN SSAE UKBA UN URA VARRP VVD WVC International Maritime Organization International Organization for Migration International Social Security Association Latitude Care Network Maatwerk bij Terugkeer Non-Governmental Organisation Openbare Centra voor Maatschappelijk Welzijn Office Français de l Immigration et de l Intégration Overseas Workers Welfare Administration Return and Emigration of Asylum-Seekers ex-belgium Reintegration and Emigration Programme for Asylum-Seekers in Germany Return and Emigration of Aliens from the Netherlands Service Social d aide aux Emigrants United Kingdom Border Agency United Nations Urban Redevelopment Authority Voluntary Assisted Return and Reintegration Programme Volkspartij voor Vrijheid en Democratie Werkgelegenheid Volksgezondheid en Cultuur xvi