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The Rights of Foreigners and Immigrants in Europe: Recent Trends.
George Katrougalos , Ph.D.
Researcher in Constitutional law; Visiting Professor in Roskilde University, Denmark (1994-1995)< gkatr@athena.compulink.forthnet.gr>
Copyright © 1995 George Katrougalos.
First Published in Web Journal of Current Legal Issues in association with Blackstone Press Ltd.
Summary
The aim of this article is to examine critically the recent trends related to the rights of foreigners and immigrants in Europe. Immigration policies which have been traditionally conceived and implemented at the national level can not cope with the new situation of globalization and European unification. Within the European Union, the easing of "internal" frontier controls contrasts with an intensification of controls at the "external frontiers". The Schengen Treaty is the culmination of this trend. Moreover, there is a universal tightening of the policies and procedures in granting asylum, that resulted in constitutional revision in France and Germany. Most other European countries have enacted new, more restrictive legislation toward foreigners, adapted in the context of European Integration and the Schengen criteria. The article reviews the present status of national and international legislation (UN and ILO Conventions, Council of Europe and EU rules) related to foreigners' rights, in order to analyze the relationship between nationality and citizenship rights. It concludes with the proposal of a concept of rights based on residence, as a viable alternative to the legitimation conflict between the universality of human rights and the particularism of nationality.
Web JCLI | [1995] 5 Web JCLI | Download this file.
Contents
- Introduction.
- A. Policies on Asylum and Immigration.
- 1. Policies at the European level.
- i. European Union.
- A. Policies on Asylum and Immigration.
- ii The Schengen Treaty.
- i. UN and ILO Conventions.
- i Citizenship and Nationality.
Introduction.
A growing number of people are seeking a better life away from their country of birth. The United States Population Fund estimates (1992) 100 million migrants world-wide, including 37 millions refugees and those fleeing disasters (US Population Fund, 1993, cf. Castles, 1993, Stalker, 1994), whereas, according to the last EUROSTAT data (1992), 5,931,000 of them reside legally in Europe, mostly in Germany (2,836,000) and in France (1,230,000; 25% of French people have foreign born parents or grandparents (Brochman 1995, p 21).
The average percentage of legal foreigners in Europe compared with the entire population has increased from 2.2% in 1970 and 3.1% in 1980 to 4.5% in 1990, even though after the 1970's all national policies tried to put a stop to the immigration. The percentage oscillates from 28% in Luxembourg, 16.3% in Switzerland, 9.1% in Belgium and 8.2% in Germany to around 1% in the European South (Italy, Spain and Portugal) and Finland. The UK is in an intermediate position with 3.3% of its population being foreign residents (Brochman 1995, p 35). If one also includes the illegal foreigners, whose number can not be accurately calculated, then probably around 8% of the entire European population (compared with only 6% of the respective figure for the USA) are not natives of the countries in which they reside (Schnapper 1994, p 127).
Foreigners are rarely integrated without problems in their host countries. Racial violence is approaching epidemic proportions throughout Europe (International Amnesty, 1995), in tandem with new waves of xenophobia. Moreover, the alien population often constitute a group of second class citizens, having considerably less rights than the nationals. A useful related distinction was introduced by T. Hammar (Hammar 1990, Brochman 1995, p 25) between citizens with full rights, foreigners with temporary status (political refugees, temporary workers), and "denizens", i.e., permanent non national residents with no rights (mainly illegal foreigners).
Although there are different national patterns of immigration (1), the control of frontiers always has been a core issue for the determination of national sovereignty and citizenship, both in the sense of the manifestation of "external sovereignty", vis-à-vis other states and in the inward sense of protecting national and cultural identity by the distinction between nationals and foreigners (Silverman, 1992, Schnapper, 1994). As M. Massenet, the principal actor in French immigration policies during the 1960's, said, "a state ceases to be a state if it does not control the implantation of foreigners on its soil" (quoted in Brochmann, 1995, p 19). However, the lack of full rights for foreign residents implies a serious legitimation conflict between two principles: the universality of human rights and the particularism of the legal link between citizenship and nationality (Silverman 1992, pp 92 & 126 ff).
According to N. van Hear (1994, p 18), there are three legal and political models of citizenship:
(a) the republican, in which the law defines in a "technical" way the prerequisites of citizenship;
(b) the multicultural, in which the adherence to common values is required but the cultural differences and ethnic communities are legitimate; and,
(c) the ethnic model, which emphasises rather the cultural aspects of citizenship, as the common ancestry and the sharing of a common language. Being German, for instance, has never been associated strictly with a notion of territory, as Article 116 of the Federal Constitution refused the recognition of a separate West German citizenship and the law of 1913 on nationality remained in force.
The first two models correspond to two major paradigms of social integration in Europe: the French or Continental "Republican" one, based on the recognition of equality on an individual basis, that is, with no institutional recognition of minorities and a British (and, also Scandinavian and Dutch) "Communitarian" and "Multi-culturalist" paradigm, based on the recognition of collective rights of the various ethnic minorities. (Schnapper, D. 1994; Weil, Crowley 1994; Costa-Lacoux 1990, pp 26 ff).
Still, in recent years many organisations (e.g., the Runnymede Trust, the Joint Council for the Welfare of Immigrants, the Group Whose Europe?) promote the concept of the state's duty to ensure equal protection to all residents, dissociating completely rights from nationality. This model of citizenship based on residence and not on nationality seems to be the most suitable answer to the new condition, in which double pressure is exerted on the traditional conception of national sovereignty, both by the emergence of transnational entities, like the European Union and by the more general trends of globalization (see Wolfe, 1995).
Unfortunately, this does not seem to be the prevailing model. It is true that as the process of the European unification is becoming dominant, immigration policies are increasingly taken at the supra-national level. Nevertheless, the abolition of the internal borders of the European Union is concomitant with a thrust of restrictive legislation and police controls at the external borders, whereas the equality of treatment of third country nationals is not always ensured. In the confines of this article we shall examine, in the first section, the new regulation of asylum and immigration in Europe and, in the second section, the legal protection and rights of foreigners in the host countries.
A. Policies on Asylum and
Immigration.
1. Policies at the European level.
i. European Union.
The European Court of Justice (ECJ) held (see the Joined Cases 281, 283-285, 287/85 Germany and others v Commission [1987] ECR 3203) that, in principle, migration policy falls within the scope of European Social Policy, to the extent that it concerns the situation of non-national workers and its impact upon the employment market. Moreover, since the Single European Act and the new Article 8A of the Treaty of Rome (cf. also Art. 3c, 7 and 48-66 EC; for a further discussion see 2.i below) the declared objective of the EC was to create an area in which not only the free movement of goods, capital and services would be insured, but also that of persons (see Regulations 1612/68, 1271/70, 1408/71, 574/72, 13/90).
However, the easing of frontier controls has been constantly opposed by Britain (Gordon, 1989, pp 6ff), on the ground that, without them it would not be possible to detect illegal or undesirable immigrants (See the Report of the Parliamentary Home Affairs Committee Passport Control, HC 247, HMSO 1987) As Mrs Thatcher stated in an interview with the Daily Mail (18 May 1989) "we joined Europe to have free movement of goods...not to have free movement of terrorists, criminals, drugs, plant and animal diseases and rabies and illegal immigrants".
Despite the fears of Mrs Thatcher, the Single Market did not have considerable repercussions in the movement of immigrants, neither did it increase inter-European immigration. Actually, the internal migration within the EU is either stagnant or dropping, the exception being extremely specialised employees. For instance, in Federal Republic of Germany, the biggest reception country, the percentage of EC national immigrants has dropped from 1980 to 1992 by 33%, whereas the only group that had an increase of 15% are the graduate employees (See Werner, 1994, p 161, table 5). So, the big issue is immigration from the less developed South and East, from the third and "fourth world" (the former socialist countries).
The reason for that is simple: As most of the countries of the Union have roughly equal levels of development, any intra-EU labour migration does not offer considerable advantages. (With regard to the divergence of GDP per capita, the standard deviation in the Union dropped from 36.6 in 1960's and 29.1 in the 1970's to 2.4 in the 1980's and 23.8 in 1993, despite the addition of Greece, Spain and Portugal. See Werner, 1994, pp 160 & 152 ff). Moreover, in the late 1960's and 1970's the immigration of low skilled migrant workers (by far the most numerous wave of immigrants) filled up the great shortages at the lower end of labour market. In the 1990's, on the contrary, the economic situation is radically different: not only is unemployment for the least qualified workers very high, even among nationals of the [Member States], but furthermore the restructuring of the economy has increased the demand for highly qualified and skilled personnel.
As a result, in the recent years, the process of unification and abolition of the internal border controls is concomitant with an intensification of controls at the "external frontiers" of the European Union. The European Council of Madrid (1990) endorsed a special report, known as the Palma Document, which proposed measures to combat clandestine immigration such as, the creation of a specialised police corps and the harmonisation of the national laws on aliens. The Schengen Treaty, which is examined in the next subsection, is the culmination at intergovernmental level of this policy trend.
Several articles of the Treaty of the European Union (TEU = Maastricht Treaty) are relevant to the free movement of persons and asylum policy, as home and justice affairs belong to the so-called "Third Pillar" of the Union (2). Thus, the provisions of Articles 3d, 100c and the Title VI (art. K-K9) extend the areas covered by the Schengen Agreement and transfer new legal competence to the Community. For instance, Article 100c points out that the Community will determine the requirements the nationals of other countries need to satisfy in order to qualify for a visa. Mario Monti, the internal market Commissioner, is expected to announce relevant draft legislation within 1995, as, 1 January 1996 is the final date for the measures relating to uniform visas format.
However, on a practical level, all immigration matters, with the exception of the common visa policy, still remain in the field of competence of the national states, acting either separately or through various intergovernmental agreements.
ii The Schengen Treaty.
The reluctance of the Member States to give up power traditionally associated with national sovereignty to the Community's organs has led to the development of important intergovernmental policy-making, outside the institutional framework of EU. The Treaty of Schengen is the most important result of this trend. Although it is outside the EU structures, it is open only to EU countries. It already has been signed by all the Member States apart from the Scandinavian countries, Ireland and the UK. Only the UK seems definitely recalcitrant to join, whereas, on the contrary, Denmark already has applied for observer's status. Sweden and Finland will probably join after they settle the future of the existing passport-free zone with their Nordic neighbours which are not EU members (Iceland and Norway) and, consequently, they cannot sign the Treaty. The most likely solution will be the signing of special bilateral agreements, guaranteeing the continuation of the status-quo in the Scandinavian region.
Another related treaty is the Dublin Convention (1990), which was ratified by all Member States. It states that an application for asylum shall be examined by only one of the designated Member- States. Finally, directly inspired from Schengen are some relatively recent initiatives of the Commission (see Commission, 1992) towards the adoption of a common visa list for the crossing of the external frontiers of the Member States, which relates to Article K 3 of the TEU.
The principal goal of Schengen is the integration of police control at the external frontiers and the gradual abolition of controls at common "internal" borders. The implementation of the Treaty is based on a centralised electronic data system, the Schengen Information System (SIS), as one of the main concepts of the agreement is that of 'cumulation' (Article 5, e): If an individual is considered to be a threat to public policy, national security or the international relations of any of the Contracting Parties, and therefore refused entry to its national territory, s/he automatically will not be admitted to any of the other Member States.
Schengen also contains common criteria of control at external borders for asylum applications. According to the Geneva Convention on the Status of Refugees (1951) asylum should be accorded to anybody facing "a well-founded fear of being persecuted for reasons such as race, religion, nationality, membership of a particular social group or political opinion". Schengen does not include a stricter material definition. However, in an effort to eliminate repeat claims and forum shopping, it contains procedural rules regarding the responsibility for the processing of applications for asylum (Chapter 7): In principle, regardless of the state to which an alien addresses an application for asylum, only one Schengen state shall be responsible for processing that application and the rejection of it would free the other contracting parties of any obligation to consider the same applicant. The state which first offered a visa becomes responsible for handling the asylum claim in accordance with national law. For the undocumented applicants, the responsible state is the one through which the alien first entered Schengen territory, even if the claim was filed in another country (Guendelsberger 1994, p 142).
These criteria have been widely criticised, as they could finally restrict the protection provided to asylum seekers and jeopardise their right of reapplying. In the aftermath of the ratification of the Treaty, countries with long tradition of providing a refuge for people who face persecution have introduced a new, stricter legislation (see 2 below ). This trend is very well illustrated by the new article 16a (2) of the German Constitution, which provides that the right of asylum cannot be claimed by applicants who enter from a European Union country or from another country where the application of the Convention on the Legal Status of Refugees and the Convention on the Protection of Human Rights and Fundamental Freedoms is ensured.
Another black spot of the agreement may eventually be the threat to privacy posed by the Schengen Information System (SIS, Art. 92-119). The exchange of information on the undesirable aliens is ensured by the co-operation of police forces through the linking of 2000 different data banks. Although there are provisions aimed at offering some protection from abuse of the information, there is wide criticism relating to the eventual danger to personal freedom especially as the Treaty lacks any supra-national judicial control. The criticism of the Committee on Civil Liberties and Internal Affairs of the European Parliament is eloquent: "police services are in a sense exploiting the internationalisation of the maintenance of law and order to increase their power or acquire new ones which they would probably not be granted by their own national parliaments." (European Parliament 1992, p 20, Brochman 1995, p 88).
One more point of reproach was the lack of transparency during the negotiations, which was criticised bitterly by the French Senate in 1986 and by the Bundestag and the British Parliament in 1989, in the debate on "Intra-Community Frontiers"(Butt 1994, p 178).
In the present political context, it seems inevitable that any European common policy in the field of political immigration and asylum would be based on the principle of the lowest common denominator (cf. Gordon 1989, p 14). That is, it will ensure only the minimal legal guarantees endorsed in the less generous national legislation, as traditional asylum reception countries, such as Germany and France, are revising their Constitutions in order to restrict the related right .
2. National answers.
Despite the efforts made for a European answer to the problem of immigration, the internal restrictive measures do not seem to be decreasing. Besides the border control, they usually include police raids in order to apprehend people in breach of the immigration law, and individual checks on coloured persons' immigration status (Gordon 1985). In addition, there is a universal tightening of the policies and procedures in granting asylum. So, in 1984, there were 3,900 asylum applications in Britain, 4,300 in Denmark and 34,400 in West Germany, whereas in 1986 these figures rose to 13,300, 22,300 and 208,000 respectively (Gordon 1989, p 13). Generally, the number of asylum seekers tripled between 1980 and 1989, with the most significant increase being from 27,000 in 1987 to 60,000 in 1989. However, almost 80% of these requests have been rejected (Silverman 1992, p 155). Most characteristic is the case of France, in which the recognition rate of refugees dropped from 77.2% in 1981 to 29.08 % in 1992, after having reached an absolute minimum of 15.44% in 1990 (Wihtol de Wenden 1994, p 86) Moreover, under the new system introduced in 1989 the applications have been dealt with in 55 days (and not in several months, as in the past) and are therefore called pejoratively by human rights organisations "TGV" (TGV = "Train de Grande Vitesse", the super fast French train) procedures" (Wihtol de Wenden, 1994, p 87).
Moreover, most European countries have enacted new, more restrictive legislation adapted in the context of European Integration and the Schengen criteria. So, the Carriers Liability Act of 1987 (UK) was, among other things, an effort to prevent asylum seekers travelling to Britain. Still, the most impressive changes in the national context have been the constitutional revisions in France and Germany.
In France, in a first phase the Conseil Constitutionnel found (dec. of 13 August 1993, no. 93-325, Guedelnsberger 1994, pp 131ff) that the new law of 1993 on asylum and immigration infringed the constitutional right to asylum (3). Moreover, it imposed on the legislator the burden of proof that any restriction of this right is based on the protection of other goals of equal constitutional rank. In response, the conservative majority voted a constitutional amendment (new Article 51-2 of the Constitution), in order to neutralise the consequences of this decision. According to it, "the Republic may enter into agreements with other European States...in matters of asylum...retaining, however, the right to grant asylum to any foreigner persecuted for his or her activities in the cause of freedom". In addition, the automatic work authorisation for asylum applicants has been suspended since 1991. Moreover, the law of 1981 requiring court sanction for the expulsion of illegal immigrants was repealed and by 1986 (the notorious Law Pasqua, after the well-known anti-immigrant Minister of Interior) the prefects (heads of the administration of the territorial Departments) have the power to order expulsion, without the immigrant having any right of appeal.
Similarly, in Germany, since the mid-1980's new controls were introduced and additional powers were granted to the federal border police (BGS), in order to prevent illegal entry of migrants. Thus, the number of applicants has been cut by 40%, whereas only 10% of applications have been approved (Gordon 1989, p 21). Moreover, constitutional reform in Germany (July 1993, see above, cf. Hailbronner 1994) severely curtailed the liberal provisions of art. 16 of the Constitution.
B Rights of the foreigners.
1. The international protection.
i. UN and ILO Conventions.
It is self-evident that all fundamental human rights that are available to "any person" apply also to foreigners, whether they be citizens or not. Hence, under Article 26 of the International Covenant on Civil and Political Rights, "all persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall...guarantee to all persons equal and effective protection against discrimination on any ground such as...national or social origin...or other status."
There is also a number of conventions dealing exclusively with migrant workers. The International Convention on the Protection of the Rights of all Migrant Workers and Members of their Families (18 December 1990), guarantees to the immigrants equal protection of all fundamental rights and freedoms, under the same conditions as nationals of the host State. Its article 7 stipulates that the States Parties
"undertake, in accordance with the international instruments concerning human rights, to respect and to ensure to all migrant workers and members of their families within their territory or subject to their jurisdiction the rights provided for in the present Convention without distinction of any kind".
Related to this is also article 5 of the International Convention on the Elimination of Racial Discrimination (7 March 1966), that provides as follows:
"In compliance with the fundamental obligations laid down in article 2 of this Convention, State parties undertake to prohibit and to eliminate racial discrimination in all its forms and to guarantee the right of everyone, without distinction as to race, colour or national or ethnic origin, to equality before the law, notably in the enjoyment of most of the traditional rights and the right to social security."
The legislative work of the ILO and the UN is often intermingled. More than 75 ILO Conventions are relevant to the achievement of the UN's International Covenant on Economic, Social and Cultural Rights. The ILO Conventions focus generally on the equal protection of social rights. Of special interest is the ILO Convention on Equality of Treatment (1962, ILO No 11), that provides that each State party shall grant within its territory to the nationals of any other State party equality of treatment regarding the benefits of Social security.
ii Council of Europe.
Regarding the social rights of non EU nationals, two Conventions of the Council of Europe are of special importance: The European Convention on the juridical status of immigrant workers (1977) and the European Convention on Social Security (1972). The latter (cf. also the art. 77 of the European Code of Social Security (1964). ensures for nationals of all contracting parties, for refugees and for stateless persons equality of treatment as regards the benefits of social security.
On the other hand, neither the European Convention on Human Rights (ECHR) nor the Social Charter secure an alien's right to enter, reside or settle in a European Country.
The Social Charter contains an Article 18f which secures for migrant workers the right to engage in gainful occupation with other Contracting Parties, subject to restrictions based on cogent economic and social reasons. However, the Appendix states that this right is not to be confused with a right of entry in the national territory and applies only to foreigners who are already lawfully therein.
Moreover, unlike the Convention, the Charter applies only to migrant workers who are nationals of Charter signatories. However, the refusal of entry or deportation may constitute interference with other rights, such as the right to respect for family life (art. 8 para. 1 of the Convention, see, for instance, D3, p. 127 and decisions cited, see Madureira 1989, pp 5ff) or breach of the general non-discrimination rule of Article 14, or even degrading treatment, in the sense of Article 3, if there is strong evidence that the foreigner will be transferred to a State where he will be subjected to such treatment (see Application No. 4626/70, DR13, p. 5 (8) and Dl, p 133. 8081/77, 5564/72, CD42, p 114 and D1, p 132; 5525/72 CD43, p 111 (pp 116 and 117) and D1, p 133; 7507/76, Dl, p 144; 8081/77 (np), D1, p 149).
In any event, although a State is not allowed to implement an immigration policy of a racist nature (see the Abdulaziz case, cf. the decision on East African Asians No 4403/70, Coll 36, p 92, in which the Commission accepted that "discrimination based on race could amount to degrading treatment"), it can give preferential treatment to nationals of countries with which it has closer links.
For instance, in Portugal, nationals of countries with Portuguese as their official language enjoy special rights and treatment, either by bilateral agreements or by law (laws 126/72, 233/82); this also happens in Greece, regarding members of the Greek minorities in Egypt, Albania and Turkey and the Greek Cypriots.
iii. European Union
Traditionally, in the framework of the European Communities human rights and social objectives have always served as an auxiliary to economic integration. Even European social policy, contrary to its traditional national function, is not of the "market breaking" but of the "market-making" variety (see Ingalill-Montari, 1993; cf. Moxon-Brown, p 152). Accordingly, the bulk of initiatives have been related to the completion of the single market and the so-called "four freedoms", i.e. free movement of Goods, Capital, Labour and Services.
Article 48 of the Treaty of Rome relates to free movement of EU citizens and gives rise to direct, horizontal effects within the Member States (see Cases 36/74, Walrave and Koch v AUCI [1974] ECR 1405 and 13/76, Dona v Mantero [1976] ECR 1333, cf. Nielsen, R, Szyszczak, E. 1993, pp 59 ff). Although it implies also the right to residence and to employment, it is not an absolute right. It can be limited on grounds of public security or public health (art. 48 sec. 3 of the Treaty of Rome -see F. Burrows, 1987). Regulation 1612/68 and Directive 68/360 have completed the related protection with regard both to the freedom of movement and the equality of treatment . Accordingly, the ECJ has considered inconsistent with Community Law a provision imposing a quota of national workers in the French merchant fleet (see Case 167/73 Commission v France [1974] ECR 359).
In principle, the freedom of movement applies only to EU citizens. It can be extended to non EU nationals, in the case of a special Association Agreement between a third country and the EC, like, for instance, the Agreement with Turkey (1967, see Case 355/93, Eroglu). Furthermore, the right to family unity of legal immigrants (i.e., to be joined by their relatives) is generally acknowledged. It is based on Regulation 1612/68 EC and it is reaffirmed by the jurisprudence of ECJ (see the case C-297/88 Dzodzi v Belgium 1990 ECRI-3537, Nielsen 1993, p 95).
Furthermore, Art. 48 protects only workers (4) and those in search of work, not the inactive population (see Case 75/63, Unger v Bestuur, [1964] ECR 1977, Case 53/81, Levin [1982] ECR 1035, Case 344/87, Betray [1989] ECR 1621, see Nielsen, R., Szyszczak, E. 1993, p 62). It protects also the members of the family of the worker, provided that they are still dependent on him (see Case 316/85, Lebon [1987] ECR 2811). On the contrary, it does not offer protection to individuals who do not have a job or a steady income in the country to which they wish to move (cf. Lundberg, p 169). Suitably, the ECJ held that it is not contrary to Community law to deport a person who has entered a Member State in order to find work and has failed, after six months of trying, without having any genuine hopes to be engaged in the future [(Case C-292/89, R v Immigration Appeal Tribunal, ex parte Antonissen [1991] ECR-I 745)].
By three recent directives (90/364, 90/365, 90/366) freedom of movement has been extended to some categories of the inactive population, like students and pensioners. Still, the freedom is restricted by the obligation of presenting proofs that the moving persons have a steady income and they are not moving in order to rely on the social security scheme of the host country.
Still, the new article 8A of the Treaty of Rome (introduced by the Treaty of Maastricht) extended freedom of movement to every citizen of a Member State (and not only to workers), providing that "every citizen of the Union shall have the right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in this Treaty". The Commission has tried to impose an even wider interpretation of this article, by which the right to free movement covers all persons, nationals and non nationals of Member States alike: "[I]t refers to all persons, whether or not they are economically active and irrespective of their nationality." (Commission 1992). Unfortunately, this position is far from being dominant in the European Union.
Besides securing free movement, the other main concern of EU policy was to ensure equality of treatment for the immigrant workers from other Member States in the national social security systems. Accordingly, the ECJ, in a series of cases (see, for instance, Case 24/1974, Biaison v Caisse Regionale d'Assurances Maladie de Paris) compelled advances towards the equalization of social security provisions. The basic goal was the aggregation of eligibility and social security benefits for migrant workers through the co-ordination of national systems, in order to ensure payments of benefits from country to country (see Regulations 1612/1968 and 1408/1971, also Directives 75/129 of 17/2/1975, 77/187 of 14/2/1997 and 80/987 of 20/10/1980).
Hence, the Court imposed the principle of non-discrimination in all aspects of (contribution based) Social Security, although not in the domain of public assistance. Thus, a decision by Federal Republic of Germany to expel foreign workers who were not eligible for unemployment benefit and had applied for public assistance (Sozialhilfe) is considered to conform to European Law (see Mosley, p 150). So, it is labour as a commodity that is protected rather than the workers themselves. There is an extremely illustrative example of this, that is the intervention of Advocate General Trabuchhi in a trial before ECJ, stating that "the migrant worker is not...a mere source of labour...but a human being."(see Meehan, p 132) This statement could be interpreted as an effort to assert social values within a system of primarily economic law. However, we think that the fact that it was necessary to reaffirm the humanity of workers says a lot about the legal mentality during (at least) the first stages of implementation of European Law.
2 Rights of foreigners in the domestic law
i Citizenship and Nationality.
Initially, as the concept of citizenship was limited mainly to political rights, it was strictly related to nationality (Grawert p 179; Habermas p 20). Even H.T. Marshall, the protagonist of the movement for social citizenship, wrote that citizenship is "by definition national" (Marshall 1965, p 72; cf. Bendix 1964). However, today the general acceptance of the universality of human rights tends to dissociate citizenship and nationality, except in the field of political rights (5).
In Europe, only in Ireland (since 1983), the Netherlands (1986) and in the Scandinavian Countries is it legal for all foreigners to vote in local elections (see Layton-Henry 1990) although the right to vote was also promised by President Mitterrand in his programme as a candidate in 1981 (see Layton-Henry 1990). However, according to the new Article 8b of the Treaty or Rome (introduced by TEU), every citizen of the Union residing in a Member State of which he is not a national, shall have the right to vote and to stand as a candidate at municipal elections in the Member State in which he resides. Still, the right to vote in elections for the Parliament is limited to citizens only.
As regards the process of naturalisation, there is a general reversal of the liberal and progressive trends of the legislation in 1970's, when several countries (e.g., Germany -1975, Switzerland -1978) granted citizenship to many immigrants, especially those of the second generation. Over the past few years the majority of EU States have altered their citizenship and aliens laws, setting stricter criteria for naturalisation and entrance to foreign citizens. In addition, some of these states have weakened the principle of jus soli to incorporate elements of jus sanguinis, the most illustrative example being the British Nationality Act of 1981 (Stanley & Rowlands 1994, p 31) .
Naturalisation remains a discretionary matter for the majority of European countries: the administration can deny it even to claimants that satisfy the formal criteria, related usually to a requirement of knowledge of the host state's language and culture, as well as residence requirements, ranging from 5 years (in France, the Netherlands and UK) , 8 years (Greece) to 15 years (Germany). In Denmark, Germany and Luxembourg a further requirement is the abandonment of the previous citizenship, as these states do not permit dual citizenship.
Moreover, France has limited the automatic acquisition of citizenship to certain categories of people through an Act of 1993 and Italy, by an Act of February 1992 extended the qualifying period of residence to 10 years for non-European Union nationals. A similar restrictive policy has been adopted by the Spanish Constitutional Law 7/1985, the Greek Law 1975/91, the Portugal Decree Law no. 59/93 of 3.3.93 and Decree no. 43/93 of 15.12.93. In contrast, both Germany (through an Act effective 1 January 1991) and Belgium (Wet van de Belgische Nationaliteit, 1984, Code of Nationality 1991) have made it easier for children born in the territory to be granted citizenship, and for adults to be naturalised after a period of residence. (See Stanley & Rowlands 1994, pp 31 ff; cf. Brubaker 1992). However, in Germany, even after the reform the practical opportunity for foreigners and their children to acquire German nationality is minimal. This is illustrated by the naturalisation rate, which (calculated as a percent of the entire alien population) in Germany was only 0.5% in 1991, compared with 5.6% in Sweden, 4.1% in Netherlands, 3.3% in UK and 2.7% in France (Bauboeck 1994 p 193)
Besides the strengthening of legislation, there is also an increase in internal controls, in order to locate illegal foreigners. (This, of course, constitutes an implicit admission that the outer borders of the Schengen group are not secure enough to permit the dissolution of internal borders.) This intensification of surveillance policies and control covers many areas of civic life (Jones 1992, p 13). In theory, all illegal immigrants should be expelled. In practice, in most of the Member States (with the clear exception of Denmark and Germany) the law is enforced very loosely and deportation is very rare. Several states even tolerate practices of black market labour which permit them to reside, work and gather their family together. In some other countries, there is a situation of semi-legality regarding special categories of aliens. An example from the UK is the position of postgraduate students who after qualification are tacitly allowed to remain as teaching assistants at universities, without being granted work permits (Stanley 1994).
ii The role of the Courts.
The jurisprudence of the national courts is gradually beginning to adopt a non-discrimination approach towards aliens. The decision CC 22/1/1974 of the French Constitutional Court is illustrative, coming from a country with deep nationalist traditions. This decision reversed the traditional jurisprudence that considered the unequal treatment by the French of foreigners as a priori justified. Now equality is the rule and any deviation from it must be founded on an explicit constitutional rule (e.g., article 6 of the Declaration of Citizen's Right, regarding political rights only for citizens) or a paramount public interest. This development is not immediately linked to EU policies, since it affects also non EU nationals.
Another important right for the foreigners, the right to family unity, is also broadly recognised, not only by the ECJ (see above A. 2. iii) but also by the national courts. Thus, for instance, the French Council of State in a decision of 6/12/1978, (Ass. GISTI et autres, Rec. p. 493, Concl. Dondoux. Cf. Flauss, p 645) has declared unconstitutional the denial of visas to the relatives of an immigrant, on the basis that it hindered the reunion of his family.
Therefore, it is not curious that, according to OECD (OECD 1987) the second major immigration wave in European countries (the first being the influx of single male immigrants in the 1960's) was family immigration in the 1970's and 1980's.
However, as clearly demonstrated in several empirical studies, this second generation of immigrants has not been fully integrated in the host societies. There is a striking contradiction between their positive demographic contribution (they have a corrective effect on the ageing process, by replenishing the youngest age groups) and their low status and marginal place in the economic life of their host countries (OECD 1983, pp 7-8). There is no upward social mobility: 90% of young foreigners throughout Europe are still employed as manual workers (OECD 1983, p 16), whereas an important number of them remain outside even elementary, compulsory education (OECD 1983, p 36).
iii Illegal Immigrants and "black market labour"
The equality of treatment between legal foreigners and nationals is not problematic, since alienage - the rights of legal aliens - are explicitly guaranteed by a number of Treaties, as already outlined above (A. 2. i). The situation is different with regard to illegal foreigners. (The illegality may be relative to the status of residence, or of work, or both.) The problem of this last category is more acute, as they are more vulnerable to exploitation in the labour market with serious implications and side-effects for the rest of the working population. They not only exert a downward pressure on "normal" wages, but also represent an obstacle to the necessary restructuring of certain industries, preventing them from being internationally competitive (Salt 1992). Therefore in the 1980's, all EU Countries (with the important exception of UK and Ireland) enacted special legislation imposing sanctions on employers that hire irregular foreigners (Schnapper 1994, pp 144-145. (There is also an ILO Convention, no 143/1975, that includes similar provisions.).
Thus, for instance, in France, there is an impressive series of statutes, including the laws of 19/7/1989, 12/7/1990, 3/1/1991, 31/12/1991 and 13/1/1992 as well as the decrees of 25/7/1990 and 30/10/1991. It is interesting to note that the large majority of persons convicted for illegal work in France were citizens of EU countries (75% for 1992, including the French citizens, see Marie 1994, p 130) and not from the Third World.
In Southern Europe, an extended underground economy is based on the over-exploitation of illegal foreigners (working usually in the service sector in Italy, France and Spain and in building industry in Greece). It is common in these countries to find draconian legislation co-existing with de facto lenience toward the irregulars, as the latter are satisfying functional necessities of the labour market, offering cheap work in unwanted and heavy jobs (Sciortino, 1990, Brochman 1995, p 142). The authorities have searched for a remedy to this abnormal situation that implies, among others, important tax fraud, in massive "regularisations". That is sui generis "amnesties", whereby the illegal may register and become regular, without penalties. After regularisation in Spain, the number of regular foreigners passed from 85,000 (1990) to 230,000 (1992) (Brochman 1995:74-75). Similarly in France, in 1982, 140,000 workers have been regularised (Marie, 1994, p 119).
iii Social rights of illegal Immigrants
"Illegal" foreigners are modern pariahs. They cannot claim any rights. They are not eligible for any welfare schemes, due to the impossibility of presenting any official documents (identification, residence or work permit, etc.) regarding their status. Only on marginal occasions, are they in position to benefit from some social services (for instance, first help medical aid in case of emergency). However, there are serious reasons for a change in this situation, regarding at least the recognition of two rights, the right to health and the right to education (for their children). Apart from "practical" implications (e.g., lack of health care could be a possible source of contagion and exclusion from education creates what they call in France "a classe dangereuse", see Brochman 1995, p 147) the deprivation of basic health care and education is unacceptable and from a legal point of view: it represents a general degradation of human dignity. (Cf. art. 12 para. 1 of the International Covenant on Economic, Social and Cultural Rights; art. 25 para 1 of the Universal Declaration of Human Rights; art. 39 of the Convention on the Rights of the Child)
There is an audacious decision (Plyler v Doe 457 US 202, 102 S.Ct. 2382 (1982)), in which the US Supreme Court tamed the question in favour of human rights. It applied the 14th Amendment Equal Protection Clause even to illegal aliens, in order to guarantee the right to education for their children. The case related to attempts in Texas to exclude these children from public schools. Justice Brennan, writing for the majority, remarked that
"the inestimable toll of that (educational) deprivation on the social, economic, intellectual and psychological well-being of the individual, and the obstacle it poses to individual achievement, makes it most difficult to reconcile the cost or the principle of a status-based denial of basic education with the framework of equality embodied in the Equal Protection Clause."
This generous jurisprudence will be tested again, against the recent and infamous Proposition 187 of the State of California, that makes illegal aliens ineligible for any kind of public social services, public health care services, and public school education at elementary, secondary, and post-secondary levels.
By contrast, the position of European jurisprudence is far more reluctant to recognise any rights for illegal foreigners. For instance, the Belgian Constitutional Court (Cour d'arbitrage) in a recent case (no. 51/94 of 29 June 1994 see "Moniteur Belgian" of 14 July 1994) has upheld federal legislation banning illegal immigrants from social assistance and welfare. This legislation had been attacked on the basis of discrimination between illegal immigrants on the one hand and legal immigrants and Belgians on the other. The Court held that illegal residence is an objective and a reasonable basis to exclude certain aliens and that this exclusion is a legitimate tool for the federal government in the execution of its immigration policy (i.e. to ensure that aliens who have been ordered to leave actually depart). These measures do not violate the standstill obligation imposed on Belgium by the ratification of the 1966 International Covenant on Economic, Social and Cultural Rights. The means used to achieve the goal (immigration control) are reasonable and do not amount to discrimination or violation of the equality principle. (It is noteworthy, however, that, despite this jurisprudence, in the Flemish part of Belgium, the Minister of Education accepted the enrolment in schools of children of irregular foreigners, stating that it is merely a matter of regularising an already existing situation (Brochman 1995, p 148)).
Although the difference between the American and the European juridical attitude towards illegal migration seems prima facie curious, it is explained by the fact that the concept of multinationality (the famous "melting pot") has been always considered a basic component of the "American way." Accordingly, the Supreme Court traditionally protects migration, since the famous Church of the Holy Trinity v US case (1892): A federal law of this period declared it a crime to assist or encourage the importation or the migration of any alien into the country, with exceptions only for artists, actors, domestic servants and a few others, but not for pastors. The court overturned the law because "it went against the whole history and life of the country."
On the contrary, the national diversity of Europe has consolidated a more rigid approach towards "outsiders". However, the unconditional recognition of basic social rights to all residents in the national territory, regardless of legal status , seems to conform with the best traditions of the European common legal civilisation. One could find a foundation for this alternative in the Constitutions of several countries. For instance, art. 5 al. 2 of the Greek Constitution of 1975 stipulates that "All persons within the Greek State enjoy full protection of their life, honour, and freedom, irrespective of nationality".
This does not imply the abandonment of national sovereignty or relinquishment of the right to control national borders. These are two distinct things: One is the State policy regarding immigration and the control of frontiers, which is mainly a political matter. Another is the protection of the fundamental rights of persons being (legally or illegally, is irrelevant) in the State. For instance, it is difficult to object that even an illegal foreigner still has a right to life (one cannot, for instance, kill him without being punished) or to property, regarding his personal things, etc. The nature of social rights, such as the right to health or the right to education is not legally different from this or the aforementioned traditional ones, at least in legal orders in which these rights enjoy constitutional recognition.
Conclusion. Perspectives for the rights of foreigners.
It is clear that there is in Europe a manifest trend toward greater rigour in the regulation of immigration and foreigners' rights. However, exactly as at the sociological level the recognition of the equality of different cultures imposes a multi-cultural society (Weil 1994, p 114), at the legal level the universality of human rights imposes the equality of treatment of nationals and non nationals. As already mentioned in the introduction, the best way to guarantee this would be the promotion of a notion of citizenship based on residence rather than nationality.
A viable alternative could be the attribution of the European citizenship not only to the nationals of the Member-States, but to all residents in the European Union (Stanley & Rowlands, pp 3ff & 37ff). Until now, European Citizenship, inaugurated by the TEU (art. G), remains broadly an ideological concept, at the best reinforcing the feeling of belonging to a wider cultural unity at the continental level. As Nicoll (1993, p 21 cf. also Habermas, p 28) put it, "read as a whole, the Treaty is not about a people's Europe, but about States' Europe. The Union citizenship is a thin veneer."
However, its fluid character of "additional citizenship", that is "a bundle of rights conferred by supranational law" (O'Keefe, pp 102 ff) rather than a proper "new" nationality, allows the extension of it to all long term residents of the Union. This scenario could be the best way for preventing the substitution of the traditional "ethnocentric" racism by a new, "eurocentric" one.
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Footnotes (1) Both in Britain (Jones, pp 43 ff) and in France (Silverman 1992, p 10) there have been three large waves of immigration. In Britain the first one was Irish (1800-1861), the second Jewish (1870-1911) and the third from the Commonwealth (1950-1971). In France the first wave included at the end of the nineteenth century Belgians and Italians, to be followed by another of Poles, Czechs and other Slavs in the 1920's and a final influx from West and, principally, North Africa (Magreb) in the 1960's. Of course, in both countries the third wave reflects the same policy of seeking additional, cheap manpower in the pool of ex-colonies, to cope with the common problem of shortage of manual labour. On the contrary, Germany (see Schnappe 1994, p 135), which had not the post-colonial resources of the two former countries (nor of Netherlands, which had similar patterns of immigration to them) based its immigration programme on bilateral recruitment agreements with other countries (Italy, Spain, Greece, Morocco etc), upon the assumption that the immigrants would be only temporary workers (Gastarbeiters). Thus, it managed to sweep out more than 600,000 workers during the recession of 1973-1975, reducing thereby the pressure on employment. Back to text.
(2) According to the Treaty of Maastricht (Title 1, Article A), the European Union shall be founded on three institutional "pillars". The first one is the European Community and the other two the intergovernmental policies and forms of cooperation established by the TEU in the fields of the Foreign Affairs and Security policy on the one hand and of the Judicial and Internal affairs on the other. Back to text.
(3) The obligation of France to give asylum "to foreigners banished from their country because of their struggle for freedom", was recognized as a constitutional principle, based on the Preamble of the Constitution of 1946 and the Constitution of 1793, by a decision of 2 February1992. In a previous decision of 25 July 1991(no 91294) the Conseil Constitutionnel held that the provisions of Shengen were not contrary to this principle. Back to text.
(4) The ECJ considers that who is "working" is a question to be answered by European law and not by national standards. See Case 53/81, Levin [1982] ECR 1035 and Case 139/85 Kempf [1986] ECR 1741, for a further discussion cf. Leibfried, p 147. Back to text.
(5) Illustrative of this not anticipated danger is the statement of Belgian Interior Minister Joseph Michel, in an Interview in Guardian, 27/12/1988(Gordon, 1989:26):
"We run the risk of becoming like the Roman people, invaded by barbarian peoples such as Arabs, Moroccans, Yugoslavs and Turks, people who came far afield and have nothing in common with our civilization".Back to text.