Re-Imagining the European (Political) Community through Migration Law

The constant portrayal of migration as an exceptional and problematic phenomenon fuels public anxieties and makes deterrence and harshness seem like the only effective political approaches to managing global migration. By contrast, positive visions of how a society of immigration needs to look like for all members of society to benefit are scarce. Yet to counter apocalyptic scenarios, we need not only such a positive vision but also a theory of societal action that helps to realize it. This blog post offers such a vision and theory that is grounded in the normative and legal framework of the European Union. It argues that we should conceptualize the European society as an inclusive, participatory, and self-reflexive community that is based on constitutional principles as enshrined in Art. 2 TEU. To realize this vision, we must understand practices of claiming and defending human rights not as an overreach into the political latitude of the legislator but as a joint practice of (political) community-building. What is more, contrary to the timid approach it currently displays, the Court of Justice of the EU should take seriously its role as an inclusive facilitator and forum of constitutional self-reflection. To conceptualize the European society as a society of immigration would facilitate a broad constitutional discourse based on pluralism, mutual respect, and interaction. To achieve this goal, we should view migration as an investment in our future, not a threat thereto.

Human Rights Claims as Joint Constitutional Practice

It has become fashionable over the last years to argue that human rights – or at least human rights jurisprudence – are going too far and, therefore, doing more harm than good in migration law and beyond (see here and here). This neglects to a large extent how human rights claims operate as a social practice that can contribute to subjectivation and politicization and may thereby contribute to political community building. Human rights as constitutional rights can help to reduce the potential for societal conflicts by encouraging an open and ongoing dialogue about fundamental rights within a political community. Constitutions aim to serve as ‘normative scripts’ for political actors, guiding and limiting political action not only in times of seeming consensus but also in times of crisis and open conflict. The main challenge in times of crisis for constitutions is to ensure continuity of norms while providing flexibility to address new societal demands. Constitutions may productively channel social conflicts by negotiating limits and adaptations through interpretative processes.

Conflicts about rights may even help individuals and social groups to integrate into a political community through discursive practices in which they, at least in most cases, acknowledge and abide by the constitution as the relevant normative framework. Human rights play an important role in this respect as they provide broad access to constitutional discourse. Although different actors and groups may interpret specific human rights norms in different or even divergent ways, they nonetheless refer to the same document and thereby implicitly or explicitly accept it as the dominant normative symbol of the political community. In this sense, human rights norms become indiscriminate towards the various visions of the collective self-perception and allow for a shared constitutional framework and joint political practice.

The European Society as a Society Based on Human Rights

The normative conditions for this to happen in the European society are present.  According to Art. 2 TEU the EU “is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights,” rendering the protection of human rights the EU’s normative foundation. It is therefore easy to see how human rights practice can be understood as European constitutional practice.

The first consequence of this is that pointing out human rights violations and criticizing the current migration policies of the EU should not be considered as an excessive moralization but rather as an effort to uphold the EU’s constitutional commitment. Considering increasing practices of outsourcing and evading human rights responsibilities by the EU and its Member States, such human rights practices should be labelled as ‘outreach’ rather than ‘overreach’. They do not unduly encroach upon the legislator’s will, but rather keep up with circumvention strategies. This controversy also illustrates that not only different interpretations of specific human rights provisions, but also different human rights conceptions compete in the context of migration law. While some defend a rather liberal-conservative concept in which human rights preserve pre-existing freedoms, others argue in favor of a more universalist-transformative understanding. This is not necessarily an obstacle to the integrative function of human rights practice as long as the institutional setting of the EU provides an inclusive and accessible forum in which these competing constitutional visions can be negotiated.

The Court of Justice of the EU (CJEU) could play an important role in this respect if it were to interpret its jurisdiction broadly and engage with the constitutional issues involved upfront. While the CJEU has recently accepted that Frontex may be held liable for human rights violations, it is still rather timid in assuming and conceptualizing such a responsibility. Similarly disappointing is that the Court accepted a very formalistic argument to deny jurisdiction in the case of the EU-Turkey deal, thereby reducing the accessibility and inclusiveness of this negotiation forum. Similar concerns pertain to other core constitutional notions, such as solidarity, also explicitly mentioned in Art. 2 TEU and Art. 80 TFEU. While emphasizing the importance of solidarity in EU migration policy, its constitutional conceptualization remains underdeveloped. Overall, the Court should take its role as a constitutional court seriously, especially in migration matters, by emphasizing how Art. 2 TEU can inform the interpretation of Treaty law and contribute to meaningful standard of review for secondary law.

Superdiversity and the Aspirational Self-Perception of the European Society

The second sentence of Art. 2 TEU describes the European society as one “in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail”. This statement should not be regarded as a factual statement, but rather as an aspirational self-perception of the European society. It is a constitutional goal towards which the European society is striving to realize its (underlying) vision as an integrated political community. How can this aspiration be realized given current mobility patterns and public discourse?

Past mobility patterns are reshaping European society as super diverse. A term coined by anthropologist Steven Vertovec, a super diverse society ‘is distinguished by a dynamic interplay of variables among an increased number of new, small and scattered, multiple-origin, transnationally connected, socio-economically differentiated and legally stratified immigrants who have arrived over the last decade[s]’. Given the diverse identities, lifestyles, and cultural practices of those who have already settled, it is becoming increasingly difficult to identify a stable societal majority into which newcomers are supposed to be integrated. Accordingly, our understanding of what it means to integrate needs to change. Instead of expecting unilateral adaptation, we need to embrace a notion of integration or inclusion that is much more focused on interaction between newcomers and citizens. This would require mutual adaptation and accepting a much more fluid notion of culture that is constantly re-negotiated, changing, and never fixed. It would also emphasize the host state’s obligation to facilitate integration by providing the necessary societal infrastructure.

In this regard, Sandra Fredman’s concept of transformative equality is helpful also in the context of migration and integration. If our goal is a society in which we interact and acknowledge one another as equals, non-discrimination is not enough. Rather, we need to provide the structural conditions needed to facilitate such interaction. In line with Fredman’s concept, this requires combatting specific disadvantages (1), addressing stigma and stereotyping (2), accommodating difference, and remedying structural exclusion (3), and promoting participation (4). Only if host states of immigration fulfil these four conditions may they provide the ground for societal interaction based on tolerance, mutual recognition as equals, and trust.

The European Society of Immigration as an Inclusive and Participatory Project

The aspirational self-perception of European society found in Art. 2(2) TEU is not the only treaty provision that embraces such an inclusive vision. In Art. 3 (3) TFEU the EU commits itself to combatting social exclusion and discrimination and to respecting cultural diversity, while Art. 67 (3) TFEU mandates the Union to combat racism and xenophobia. These commitments should not remain empty shells but must be considered in public, political and legal constitutional discourse about the future of EU migration law and policy. The provisions envisage a future European society in which migration is managed on the basis of mutual respect, participation and inclusion, and therefore give clear guidance for EU migration policy.

The Court of Justice has not yet realized the full constitutional potential of these provisions but there are positive signs. In a recent case regarding grounds for optional non-execution of the European arrest warrant the Court decided that the differential treatment of a Member State’s own nationals and third-country nationals in this regard violates the principle of equality before the law as enshrined in Art. 20 of the Charter of Fundamental Rights (CFR). Member States may not exclude third-country nationals ‘absolutely and automatically’ from the non-execution rule without taking into account the ‘degree of integration’ of those third-country nationals within the society of that Member State. The Court hereby applies the principle of progessive inclusion, according to which rights should correspond to social ties and/or duration of residence and are to be continuously aligned with the rights of nationals of the host state.

Realizing the Potential of a Human Rights-Based Approach

The idea of a more inclusive approach and a progressive alignment of rights of EU citizens and third-country nationals also transpires in another decision as well as in recent EU legislation. In its recent decision on internal border controls in the Schengen area the Court missed the opportunity to explicitly clarify the relationship between freedom of travel for everyone in the Schengen area (Art. 3 (2) TEU and Art. 77 TFEU) and EU citizens’ right to free movement in Art. 21 TFEU and Art. 45 CFR. However, it implicitly interpreted the restrictions of free travel through internal border controls as an infringement of freedom of movement in the sense of Art. 21 TFEU and Art. 45 CFR. By referring to freedom of movement only implicitly the Court obscured the underlying constitutional issues in this case.

A human rights-based interpretation of the relation between the freedom of travel and the right to free movement would open the door for more inclusive solutions. According to Art. 2 AP 4 ECHR ‘everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence.’  This provides a strong argument to extend the freedom of movement beyond EU citizens and Art. 2 TEU mandates an interpretation of EU law that takes human rights obligations seriously in migration matters. While this right may be restricted, if justified by ‘the public interest in a democratic society’ (Art. 2 (4) AP 4 ECHR) it demands at the very least discussing openly what restrictions public interest might justify in light of the constitutional vision. Future migration law and policy should therefore open new pathways to internal mobility of third-country nationals. The extended mobility options for EU Blue-Card Holders and Long-Term Residents are a step in the right direction but certainly not sufficient given their limited personal scope.

Towards an Inclusive European Society of Immigration

To live up to the ideal of an inclusive and participatory society of immigration, more is required. Firstly, the EU should place a greater emphasis on combating structural exclusion, xenophobia, and racism.  This could partly be done through anti-discrimination law, but it would also require changes regarding integration, education, and access to the labour market. The competence for many of these areas still lies with the Member States. However, the EU could at least initiate a dialogue on these issues whenever reforming existing instruments in migration law. Secondly, the EU and its Member States should refrain from using reduction of social benefits as a punitive instrument in mobility management. Such cuts typically reinforce existing inequalities and prevent migrants from ever becoming equal members of society. Finally, the EU should also encourage Member States to reconsider the issue of political participation of migrants. Effective integration requires newcomers to have a say in the political community’s development at least after a certain duration of residence. Otherwise, mutual learning and adaptation will not work properly as it will be all too easy for citizens to disregard the interest of newcomers as ‘minority issues’.

Not Just Wishful Thinking

I can already hear the choir of sceptics reminding me that all this is just mere utopia and not a realistic option in the current political climate. Some will insist that we must take seriously people’s concerns regarding increasing migration. Others will point to the importance of defending our liberal and democratic values in light of migration from countries where these values are not high priority, to say the least. Well, I am happy to admit that my goal was not to outline a masterplan for future migration law that is likely to be implemented in the near future. Rather, I am firmly convinced that what we currently need are not (only) ready-made policy recommendations, but a broader and courageous vision of how the future of the European society should look like. We need to remind ourselves of our polity ‘s normative framework and to (re-)negotiate how it should bear on the future migration law and policy. With this blogpost, I hope to re-open this debate. I do not expect an immediate societal consensus on the aspects I mentioned nor that compromise will be easy to reach. But I do think it is of utmost importance to pursue these policy debates not in the hamstrung way imposed by right-wing politicians, but in a courageous and forward-looking spirit that makes the fundamental values visible that should guide any of our policy decisions towards newcomers. If we permit the creation of second-class fellow human beings in our societies whose fundamental rights can be cut at will to punish them for mobility choices or to force them to perform a certain cultural attitude, not much will be left of our liberal and democratic values to defend. This is why we should understand migration as an investment in the future – an investment that may certainly be costly, but worth the result of creating an inclusive economy and an inclusive society for the future.