SOCIAL MEMBERSHIP VS. EU CITIZENSHIP

SOCIAL MEMBERSHIP VS. EU CITIZENSHIP Some reflections on Joseph H. Carens The Ethics of Immigration from an EU law perspective How to manage the migrant crisis, and keep Europe from tearing itself apart Picture source: The Economist, February 6 th 12 th 2016 (cover) MCI MANAGEMENT CENTER INNSBRUCK Universitätsstraße 15 markus.frischhut@mci.edu 1

The Ethics of Immigration N.B. Term of irregular migrants e.g. used by President Tusk (Speech 177/16; April 13 th 2016). MCI MANAGEMENT CENTER INNSBRUCK Universitätsstraße 15 markus.frischhut@mci.edu 2

The MS s ethics of immigration / citizenship In the EU, Carens claim is addressed to the Member States (MS), as it is their competence. Similarities: e.g. proportionality. In sum, birthright citizenship for the children of resident citizens makes moral sense as a practice because it acknowledges the realities of the child s relationship to the community [ ]. (p. 25) It would be wrong to read citizenship in a democracy as a sort of feudal title or property right [ ]. (p. 30) [ ] according to established case-law, it is for each Member State, having due regard to [EU] law, to lay down the conditions for the acquisition and loss of nationality [ ]. (Case C-135/08, Rottmann, para. 39) Emphasizing the principle of proportionality in this context (p. 44) Emphasizing the principle of proportionality in this context (Case C-135/08, Rottmann, para. 55) Ius sanguinis is a perfectly legitimate mechanism for the transmission of citizenship so long as it is limited in extent. (p. 33) MCI MANAGEMENT CENTER INNSBRUCK Universitätsstraße 15 markus.frischhut@mci.edu 3

One obvious way to promote the inclusion of immigrants is to establish rules that prohibit discrimination on the basis of characteristics that tend to distinguish citizens of immigrant origin from other citizens. (p. 65) Already fulfilling this claim to some extent referring not only to citizenship (also sex, etc.), No discrimination with regard to sex, race, colour, ethnic origin etc. Directive 2008/115/EC (returning illegal TCN), 21 st recital; Directive 2004/114/EC (studies), 5 th recital; Directive 2005/71/EC (scientific research), 24 th recital; Directive 2003/109/EC (long term TCN), 5 th recital; Directive 2003/86/EC (family reunification), 5 th recital; Directive 2011/98/EU (single permit), 29 th recital Non-discrimination and reference to instruments of int. law Directive 2001/55/EC (mass influx), 16 th recital Same treatment as nationals Directive 2001/55/EC (mass influx), art. 14 (minors and educ.) Directive 2003/109/EC (long term TCN), art. 11 Directive 2005/71/EC (scientific research), art. 12 Directive 2009/50/EC (blue card), 7 th recital, 16 th recital (pay), art. 14 Directive 2011/95/EU (status refugees) art. 26/2 (access to employment-related education) art. 27/1 (access to education - minors) art. 29 (social welfare); art. 30 (healthcare) Directive 2011/98/EU (single permit), 19 th, 20 th, 24 th recitals; art. 12 The European Union must ensure fair treatment of third country nationals who reside legally [in the EU] (European Council Tampere, October 15 th 16 th 1999) MCI MANAGEMENT CENTER INNSBRUCK Universitätsstraße 15 markus.frischhut@mci.edu 4

however, there is still room for improvement. Rights as closely as possible to those enjoyed by EU citizens Regulation 1231/2010/EU (social security), 1 st recital One obvious way to promote the inclusion of immigrants is to establish rules that prohibit discrimination on the basis of characteristics that tend to distinguish citizens of immigrant origin from other citizens. (p. 65) Same treatment as other TCN legally resident Directive 2011/95/EU (status refugees) art. 27/2 (access to education - adults) art. 32/1 (access to accommodation) art. 33 (freedom of movement within MS) Less favourable treatment for TCN Directive 2013/33/EU (int. protection), 24 th recital, art. 17/5 Principle of Union preference (2003 and 2005 Acts of Accession) Directive 2011/98/EU (single permit), 17 th recital Priority treatment to EU citizens and EEA nationals Directive 2013/33/EU (int. protection), art. 15/2 Directive 2001/55/EC (mass influx), art. 12 MCI MANAGEMENT CENTER INNSBRUCK Universitätsstraße 15 markus.frischhut@mci.edu 5

Here too, we find some similarities (5 years in both cases). Time spent in case of adults to bar deportation: 5 years (p. 104) Public employment (pp. 106-8) On criminals that have grown up in the country that tries to expel them: These people may be problems, but they are our problems, not someone else s [ ] (p. 105; no emphasis added) 5 years EU citizens: Directive 2004/38/EC, art. 16 TCN (as family members): Directive 2004/38/EC, art. 18 TCN (as long term residents): Directive 2003/109/EC, art. 4, art. 12 (protection against expulsion), etc. Public-service exception: TFEU art. 45/4, art. 51, art. 62; plus CJEU case-law Cf. terrorism situation (Paris and Brussels) Acknowledges improvement of treatment of TCN in the EU: This gap has narrowed considerably in recent years [ ] (p. 92) MCI MANAGEMENT CENTER INNSBRUCK Universitätsstraße 15 markus.frischhut@mci.edu 6

Likewise, here we find a similar idea (sanctioning employers, not migrants) and possible room for improvement (firewall). [ ] the right to enforce immigration laws is not a moral carte blanche. The state is still constrained by norms of proportionality and rationality [ ] competence and fairness [ ] (p. 144) [ ] the important point is that employer sanctions provide a more legitimate option for restricting irregular migration than most restrictions on the legal rights of the irregular migrants themselves. (p. 147) Employer sanctions Directive 2009/52/EC Outstanding remuneration, taxes etc. (14 th recital) However, no right to entry, stay, access to labour market (15 th recital) Complaint mechanisms to facilitate enforcement (26 th recital) Firewall argument (pp. 132ff; cf. also Crépeau, 2013, pp. 30-1, 47) Similar idea: [MS] free to grant residence permits of limited duration [to TCN] who have been subjected to particularly exploitative working conditions [ ] and who cooperate in criminal proceedings against the employer (27 th recital) MCI MANAGEMENT CENTER INNSBRUCK Universitätsstraße 15 markus.frischhut@mci.edu 7

The core idea can be traced in EU law as well. There is one general idea that plays an important role in almost all of the chapters. It is that living within the territorial boundaries of a state makes one a member of society, that this social membership gives rise to moral claims in relation to the political community, and that these claims deepen over time. To put this idea in a four-word slogan: social membership matters morally. (p. 158) The main criterion for acquiring the status of long-term resident should be the duration of residence in the territory of a Member State. Residence should be both legal and continuous in order to show that the person has put down roots in the country. Directive 2003/109/EC (long term TCN), 6 th recital residence and time are proxies for richer, deeper forms of connection but that we have both practical and principled reasons not to try to go beyond these proxies, at lease under most circumstances. (p. 165) MCI MANAGEMENT CENTER INNSBRUCK Universitätsstraße 15 markus.frischhut@mci.edu 8

Similarities also exist in the context of the EU s blue card. Directive 2009/50/EC (blue card) Possible criteria of selection: Potential economic contribution morally permissible but danger of possible brain drain (pp. 183-5) Secondary family ties: morally permissible (pp. 179-80) Ethnicity: deeply problematic (pp. 181-2) Knowledge of the official language: possible (pp. 182-3) Brain drain argument: No active recruitment in developing countries in sectors suffering from a lack of personnel. Ethical recruitment policies and principles [ ] should be developed in key sectors, for example the health sector [ ] and the education sector, as appropriate. [ ] in order to turn brain drain into brain gain. Directive 2009/50/EC (blue card), 22 nd recital; art. 8/4 not encourage a brain drain from emerging economies or developing countries Directive 2005/71/EC (scientific research), 6 th recital MCI MANAGEMENT CENTER INNSBRUCK Universitätsstraße 15 markus.frischhut@mci.edu 9

Moral obligation of resettlement: If state causally responsible, why people become refugees (p. 213) Refugees needs (e.g. family ties) (p. 213) Receiving states absorptive capacities (pp. 214-5) Size of the existing population Population density Economic capacity (overall wealth, economic dynamism) Similarities It would serve no one s interests to ignore the question of fit. It is important, however, not to elevate this consideration into something that justifies exclusion or marginalization of refugees on the basis of race, culture, or religion [ ]. (pp. 214-5) Objective criteria conc. MSR; softer ones conc. TCN; similar ideas, although disputed topic. 40% of the size of the population, 40% of the GDP, 10% of the average number of past asylum applications, 10% of the unemployment rate (MEMO/15/5698; COM(2015) 240, Annex) MS of relocation (MSR): [ ] specific account should be given to the specific qualifications and characteristics of the applicants concerned, such as their language skills and other individual indications based on demonstrated family, cultural or social ties which could facilitate their integration into the [MSR]. In the case of particularly vulnerable applicants, consideration should be given to the capacity of the [MSR] to provide adequate support to those applicants and to the necessity of ensuring a fair distribution of those applicants among [MS]. With due respect for the principle of non-discrimination, [MSR] may indicate their preferences for applicants [ ] Council Dec. (EU) 2015/1601 (relocation), 34 th recital See also Pending cases C-643/15 (Slovakia), C-647/15 (Hungary) Council Implementing Decision (EU) 2016/408 (Austria) MCI MANAGEMENT CENTER INNSBRUCK Universitätsstraße 15 markus.frischhut@mci.edu 10

Again, similar ideas (no right to choose a country) but challenging claim in the case of Carnes idea concerning limits. Refugees have a moral right to a safe place to live, but they do not have a moral entitlement to choose where that will be. (p. 216) To be sure, even the commitments in the Geneva Convention are constrained by the responsibility of states to maintain public order. No one expects a state to admit so many refugees that it can no longer function. But this is a minimal constraint (p. 218) Asylum seekers do not have the right to choose the Member State in which they seek asylum; (p. 4) European Council meeting [conclusions on Brexit] (February 18 th 19 th 2016), EUCO 1/16; see also Council Decision (EU) 2015/1601 (relocation), 35 th recital Cf. Obwexer & Funk, 29.3.2016 When is this limit [i.e. the we have done enough argument] reached? [ ] My own answer is almost never. (pp. 218-9); rejecting Miller, National responsibility and global justice, 2007, p. 227 As Hume reminds us, one of the background conditions of justice is limited scarcity. (p. 220) Picture source: http://www.endare.com/blog/endare-challenges/ Picture source: https://en.wikipedia.org/wiki/lifeboat_ethics MCI MANAGEMENT CENTER INNSBRUCK Universitätsstraße 15 markus.frischhut@mci.edu 11

Concluding remarks and limitations 1. Important disclaimer: this presentation compared only some selected ideas of Carens book with some selected parts of selected EU documents in this context. 2. In EU documents, we find a lot of similarities to Carens ideas. Of course this does not mean that other parts of those documents could not be deemed unethical. 3. However, there is, of course, still possible room for improvement (e.g. firewall in case of irregular migrants, non-discrimination). 4. This does not mean that certain factual situations (e.g. Idomeni) cannot be criticized from an ethical perspective. 5. Interestingly enough, Carens plays with the idea of a supranational power when referring to quantitative limits; however, he does not claim it (p. 219). 6. Comparing the historic situation of Jews fleeing from Hitler with today s situation (p. 220, et passim), Carens is clearly challenging our views. As Sandel also puts it, (political) philosophy can give shape to the arguments we have, and bring moral clarity to the alternatives we confront (2010, p. 19). [ ] we cannot leap directly from analysis of principles to prescriptions for policy (p. 61; cf. also p. 126, et passim) EU migration policy: fair, robust and realistic ; COM(2015) 240, p. 7 MCI MANAGEMENT CENTER INNSBRUCK Universitätsstraße 15 markus.frischhut@mci.edu 12

Thank you for your attention! MCI MANAGEMENT CENTER INNSBRUCK THE ENTREPRENEURIAL SCHOOL Dr. Markus Frischhut, LL.M. Professor & Study Coordinator European Union Law Management & Law (BA) Strategic Management & Law (MA) Universitaetsstrasse 15, 6020 Innsbruck, Austria Phone: +43 512 2070-3632, Fax: -3699 mailto:markus.frischhut@mci.edu, www.mci.edu MCI MANAGEMENT CENTER INNSBRUCK Universitätsstraße 15 markus.frischhut@mci.edu 13