nationality and (in) migration enar policy seminar brussels, 6-7.10.2004

Nationality and

(in) migration

ENAR Policy Seminar

Brussels, 6-7.10.2004

7.10.2006 Luciano Scagliotti

Intro

1. I’m not a lawyer…

2. References:• R. Bauböck, E. Ersbøll, K. Groenendijk, H.

Waldrauch (eds.), Acquisition and loss of nationality. (NATAC report)

• ENAR, Equal treatment of third country nationals • A. Sen, Identity and violence. The illusion of destiny


This presentation

• Hints about discrimination on the ground of nationality

• What is nationality? A framework

• European debate

• Approaches for further discussion


Nationality discrimination

• Prohibited by TEC only against nationals of Member States. (until…?)

• → Directives 2000/43 and 78 don’t apply to nationality/citizenship status and immigration laws…

• …but apply to every person in the EU…

• …→ equality before a different law


Nationality discrimination

• Member States misuse exemptions to evade – their legal obligation to ensure that asylum

and immigration laws are not discriminatory – their political commitment to ensure fair

treatment of third country nationals

• Ex: jobs reserved to nationals, social housing criteria, welfare limitations, discretionary controls, detention centres


Nationality: possible definitions

• Legal relationship between individuals and states

• Legal bond between a person and a state implying links to international law


Citizenship: possible definitions

• Equal membership in a self-governing political community

• Sum of legal rights and duties of individuals attached to nationality under domestic law.

• Inclusion / exclusion

• Equality / discrimination


Citizenship: a complex concept

CONCEPTIONS

thin thick DIMENSIONS

legal positivism libertarianism

republicanism egalitarian liberalism

nationalism communitarianism

membership

legal status

political identity

cultural identity

rights

negative liberties

rights and obligations

moral duties

practices

passive citizenship

social and political civic virtues

heroic virtues


European citizenship

• “A thin layer of additional rights … placed on top of a thicker national citizenship”

• Introducing a divide between social and political community

• Defined largely by exclusion (of non MS nationals)


Rights and duties

• Political rights(voting)

• Participatory rights(assembly)

• Free movement

• Non discrimination

• Loyalty (laws, institutions, defence)

• Social duties(work, self-reliance)

• Economic duties(taxation)


Challenges

International migration

Multiple affiliations

Political communities across borders.

Sub-national groups

Identity as oppression

Political communities

within borders


Trends: EU convergence?• No “European model”, but some factors call/push for/towards

common standards:

• Pressure from above and from below

• Individual MS nationality policy determines rights in all Member States

• “Copying” other MS answers to problems either/both immigrant “integration” or/and anti-immigrant populism;

• Trans-national case law

• Trans-national migrant networks and NGOs’ cooperation.


Trends (2000 - 2005)

• More restrictive in Denmark, France, Greece, the Netherlands, the United Kingdom, Austria)

• More open in Belgium, Finland, Germany, Luxembourg, Sweden, Portugal, Italy).


Trends (2000 - 2005)

• Facilitated acquisition of nationality (second generation)

• Reduced residence periods (first generations)

• Accepted double / multiple nationality

• Abolition of integration requirements (Belgium)

• Restricted rights (2nd generation)• Stricter language and integration

requirements (1st generations)• Increased residence and marriage

duration requirements, reduced exemptions (spouses)

• Formal examinations of language skills and knowledge of society (Denmark, France, The Netherlands, Greece, UK, Austria, Luxembourg 2005)

• language tests for foreign born nationals (The Netherlands)


Trends: summing up

• Yesterday:

• Naturalisation as a means for integration

• Today:

• Naturalisation as the crowning of a completed integration


EU at work: issues in debate

• Residential citizenshipEqual rights (time constrains)

• Civic citizenship Comparable rights (e.g. no voting rights)

• Constitutional patriotismIdentity built on shared values and legal framework

• Cosmopolitan citizenshipEquality because of common human nature


EU at work: action• Effective as usual…


Effects: nationality ≠ residence

• Divide between social and political community

• Definition by exclusion

• Pretence of homogeneity

• Lack of shared / trusted (constitutional) values


Effects: nationality vs residence

• Inclusion deficit

• trust-building deficit

• democratic legitimacy deficit

• social / economic integration deficit


Possible approaches

Prohibition of nationality discrimination• UNDHR, CERD, Recommendation XXX• Application / extension art.12 TEC • New Community legislation• … (lawyers, step in!)


Possible approaches

Extension of nationality /citizenship• citizenship of residence, harmonisation• Facilitated naturalisation

Economic approach• free movement of workers, • Common (labour) market


Possible approaches

Political / cultural approach

• Focusing on multiple discrimination

• Debunking the myth of single identity

• Building on “diverse diversities”


Thanks…

(…God, it’s over!)

nationality and (in) migration enar policy seminar brussels, 6-7.10.2004

Documents

loss of nationality

nationals of member

country nationals ex

ms answers

subnational groupsidentity

eu equality

political commitment

political communitydefined