Transforming Migrants into ‘Real’ Citizens — EU Citizenship and Some Unfulfilled Promises

in European Journal of Migration and Law

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More than 25 years ago the EU launched citizenship of the European Union, a last minute addition to the Maastricht Treaty adopted in recognition of the EU’s new relationship with the countries of Central Europe after the tumultuous period following the fall of the Berlin Wall. The objective was to strengthen the common identity of nationals of the Member States as belonging not just to their Member State but also to ‘Europe’. While the EU treaties have been amended a number of times since then, little, other than the article numbers, has changed regarding the Treaty provisions on citizenship. Yet, at the time it was created Spanish and Portuguese workers still did not enjoy free movement as workers. The EU’s enlargement to include Austria, Finland and Sweden was around the corner (taking place in 1995) and already the possibility of the big bang enlargement of 2004 was in the air. EU citizenship gave the nationals of the Member States a series of rights, including the rights to move, reside, and work in another EU state. More importantly, EU citizenship brought along the promise of equal treatment with nationals of the host state suggesting that it had the potential to be more than a migration status.

Yet what is citizenship of the Union? This requires an answer to two other questions: what is citizenship at all, and secondly what is the EU and is it capable of constructing a ‘real’ citizenship. In the 1990s, legal scholars viewed citizenship as a way of describing the relationship between individuals and states cemented in law and forming the basis of entitlements, particularly around political participation. But in other disciplines citizenship was already subject to very different formulations. Following the seminal work of T.H. Marshall in 1960s,1 sociologists such as Isin and Turner began to theorise citizenship as relationships of struggle around rights and belonging2 paying particular attention to those excluded from rights. This understanding of citizenship actually fitted well with this new EU citizenship where the rights were going to be sites of struggles continuing well into the 21st century.

Then there is the conundrum regarding the nature of the EU itself. 1990s were a period when there was much discussion about whether the EU would or should become a federal state. This interest and perspective of the EU’s future has faded somewhat and rarely enters into debates about what the EU is. Instead, the EU has remained a sui generis legal order but does not appear about to emerge like a butterfly from a chrysalis from one thing to something apparently quite different. Its acquisition of increasing numbers of citizens (almost doubling from 1991 to 2019) has been exclusively the result of enlargements. It does not have any other capacity to create or lose citizens than collectively through the choices of states to join (or depart from) the EU or grant or deprive people of national citizenship. The stability of the EU as a political entity has increased substantially since 1992. Its powers have expanded. The clarification and separation of powers among the governing bodies has become much more distinct. It has acquired legal personality, an attribute of some importance to citizenship. But it has not become a federal state or any kind of state at all. It has adopted a legally binding Charter of Fundamental Rights which benefit its citizens but also anyone else who comes within the scope of EU law. Its capacity to transform its citizens from foreigners, aliens or migrants into ‘real’ citizens when living in a Member State other than that of their underlying nationality has been something of a mixed bag.

The European Court of Justice has played an important role in the process of crystallization of the substantive content of EU citizenship when it declared that the right to free movement and residence attached to EU citizenship is directly applicable despite its conditional nature.3 When exercising free movement rights, EU citizens could rely on their newly acquired citizenship status to contest national measures restricting their mobility or denying them equal treatment. Once the ECJ and national courts started to take EU citizenship seriously, the Member States have been forced to follow suit, although in several instances with particularly ill grace. Family reunification is one of the areas where some Member States have been reluctant to give full meaning to EU citizenship rights, especially where the family members were non-EU nationals. It is no surprise that one of the latest developments in this process of finding what citizenship means in the EU context concerns static EU citizens and their TCN family members who, in exceptional circumstances, can rely on EU law to achieve family reunification. Achieving security of residence in the case of economically inactive citizens or ‘criminal’ citizens remains an equally contested issue.

This special issue examines this mixed bag of EU citizens’ rights from the perspective of the struggles and challenges which they have encountered when seeking to exercise their rights as citizens. In practice, despite encouraging moves in relation to family reunification, the delivery of effective rights and of equal treatment remain problematic aspects of EU citizenship, where more can be done to ensure that EU citizens are treated indeed as fellow citizens.

In the first article, Valcke addresses the underlying tension of EU citizenship—it is for Member States to deliver rights to EU citizens but what happens when they do not do so? Although the Court of Justice stated in 2001 that EU citizenship was destined to become the fundamental status of all EU citizens4 it was for the Member States to implement the rights and make EU citizenship real. In his analysis, there is still a way to go before the Court’s promise will be achieved. Many authorities in the Member States forget, ignore or obstruct the enjoyment of citizens’ rights. He describes this as the ‘implementation gap’ between the EU rules and national practice.

The idea that an EU citizen can be an unreasonable burden on a Member State originates from the Citizen’s Directive 2004/38. It applies only to EU citizens who do not hold the citizenship of the state where they are living and is one of the key concepts of differentiation between ‘real’ citizens and EU citizens. In these days when a number of EU states are seeking to avoid allowing those of their nationals who have been caught up in the hostilities in Syria in particularly around the demise of ISIS to return home, the idea of citizens being an ‘unreasonable burden’ seeks to have entered mainstream citizenship concepts. But for EU citizens living in a host Member State the concept is still one related to access to social benefits. Mantu and Minderhoud examine how this concept is used to extinguish residence rights of EU citizens in a host state thereby turning them into quasi-illegal migrants in the state where they live. Through the case law of the Court of Justice they unravel the tangled web of the unreasonably burdensome EU citizen and the contradictions which the Court itself has permitted to enter into its EU citizenship jurisprudence, no longer perhaps quite so destined to be the fundamental status of its holders. Asserting and maintaining residence rights under Articles 7 and 16 of Directive 2004/38 is becoming problematic for certain categories of EU citizens and linked with the more restrictive position taken by some Member States in relation to accessing their national social assistance systems.

Devetzi follows the status of EU citizens from the perspective of the entitlement to solidarity as a core component of citizenship focussing on the developments in Germany. When are citizens no longer entitled to solidarity which is inherent in their equality with other citizens? In a damning analysis of the Court of Justice’s case law she demonstrates that not only has the entitlement of solidarity inherent in citizenship been extinguished for economically inactive citizens but it is also impaired for workers. The right of workers to equality has been a cornerstone of the EU’s structure from 1957. This equality right has until recently included solidarity with other workers in the state as a profound entitlement and one necessary to ensure a level playing field for all workers. She critiques this move away from solidarity as a false step which will need to be corrected.

Guild follows with an examination of another source of friction among EU citizens and their home and host States—the right to live with third country national family members. EU law defines the right to family reunion of mobile EU citizens. It is not left to the Member States to apply their national law, even the national law which applies to their own citizens. The consequence, over time, has been that the national law of some Member States has become more rigid and exclusionary regarding these family members of their own citizens while EU law has remained stable. The result is that EU citizens who use their mobility rights can escape the exclusion of their third country national family members under the national law of their state. They can enjoy an EU right to family reunion if they move to another Member State. This weakens the attachment of such citizens to their underlying nationality while strengthening their attachment to their EU citizenship rights. But how important is this phenomenon in the EU? Guild examines this question through the legislation of the Member States and finds that in fact very few Member States are affected. The obsession around the exclusion of third country national family members of citizens is not a widely shared one at all.

The final substantive contribution in this issue is Ryan’s analysis of the gradual incorporation of the concept of integration into EU citizenship. In particular he looks at how over time this concept which began with positive connotations in Regulation 1612/68 as the expression of the entitlement of workers to the best possible conditions of integration has taken on more sinister characteristics. It has become, with some help from the Court of Justice, a stick with which to beat EU citizens. If they fail to integrate according to the standard set by the legislator they lose their rights or can be excluded from the acquisition of rights. The prize to which proof of integration is attached is security of residence—one of the most cherished rights of EU citizenship.

Two book reviews complement the articles of this special issue. Thym’s edited volume Questioning EU Citizenship: Judges and the Limits of Free Movement and Solidarity in the EU focuses on the interplay between laws regulating immigration, welfare rights and Union citizenship, by analysing political, legal and normative contestations of citizens’ rights in Europe. Finally, the edited volume by De Vries et al., EU Citizen’s Economic Rights in Action: Re-Thinking Legal and Factual Barriers in the Internal Market, discusses citizenship in the internal market in relation to the gap between rights within the internal market and exercise thereof in practice, the regressive impact of the economic crisis, and the challenges of the EU language diversity.

Acknowledgement

This special issue is the outcome of a Jean Monnet Centre of Excellence implemented by the Centre for Migration at the Radboud University in Nijmegen, the Netherlands and co-financed by the European Union under the Erasmus+ Programme.5 As part of its Centre of Excellence work programme, the CMR has monitored the implementation of Directive 2004/38 in the EU28 with a view to improve knowledge of national practices that affect the exercise of EU citizenship rights and organized several workshops to place the main findings from the national levels into wider EU developments relating to EU citizenship and mobility. We would like to acknowledge the work of the national experts in assessing implementation of Directive 2004/38. Equally, we would like to thank our colleague academics, practitioners and civil society representatives who have joined our workshops and generously shared their knowledge with us.

1T.H. Marshall, Class, citizenship and social development (New York: Doubleday & Co., 1964).
2E.F. Isin & B.S. Turner (Eds), Handbook of citizenship studies (London: Sage 2002).
3Case C-413/99 Baumbast and R., EU:C:2002:493, para 80.
4Case C-184/99 Grzelczyk, EU:C:2001:458.
5Jean Monnet Centre of Excellence work programme 2015–2018 funded by the European Commission under contract number 565027-EPP-1-2015-1-NL-EPPJMO-CoE.

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