A Human-Centric Approach to Post-COVID-19 Border Control Policies in the EU

Written by Miranda A. Bocci

Research Associate at Law & Order


Source: The New Federalist

Disclaimer: Please note that the views expressed below represent the opinions of the article's author. The following does not necessarily represent the views of Law & Order.




Introduction



It has been theorized that modern migration has economic patterns; that is, migration is driven by economic opportunities to a greater degree than it is by the presence of political tension. This trend has recently been observed in the EU, where a surprising majority of migrants who have left their countries of origin, have done so to pursue better economic opportunities and quality of life.


In A Theory of Migration, Everett Spurgeon Lee, professor of sociology at the University of Georgia, advanced a theory of migration that suggests that certain push and pull factors are the main causes of migration. Lee conceptualized the push factors as a lack of economic opportunities and education in the home country (Lee, 1966). Conversely, he defined pull factors as potential benefits available in the receiving society, such as economic opportunities, religious and political freedoms and rights, and greater access to educational resources (Lee, 1966). Non-EU migrants who relocate to the EU typically have a positive pre-existing perception of European states, viewing them as politically stable and with good employment prospects, a decent salary, a clean environment, and low crime rates (i.e., pull factors).


Yet since the beginning of COVID-19, almost a dozen of the 27 EU countries have closed their borders to non-EU migrants (Thiessen, 2020), which has generated intense debate among EU states on the topic of labour migrant rights. One side of the debate suggests that the recent border control policies in the EU have failed to effectively address the challenges brought by COVID-19, while the other side expresses a line of thinking similar to the popular saying “desperate times call for desperate measures.”


Labour Migration in the European Union


a) EU’s Migration Policy


The EU’s migration policy is a system of border security measures adopted by EU member states to regulate and control migration flows in the EU zone. These measures include border control, asylum procedures, return, and development programs, and are adopted into national law under the prerogative of the member state.


The EU migration policy has multiple objectives, among which are the expectation to ensure the “fair treatment of third-country nationals,” the obligation to promote an “efficient management of migration flows,” and the responsibility to prevent and “fight against irregular migration, [the] smuggling of migrants and trafficking in human beings” (European Commission, 2020). Migrants under the EU migration policy may be legal (“regular migrants”), undocumented (“illegal migrants”), or non-nationals who have applied for protection under the Geneva Refugee Convention and Protocol (“asylum seeker”; European Commission).



b) Labour Directives Under Policy


There are multiple reasons non-EU migrants might decide to relocate to the EU, including but not limited to employment, studies/research, family reunification, and/or international protection. While policies governing short-stay tourist visas, student visas, and work permits are constantly updated to reflect changing international circumstances and priorities, the EU currently has four directives governing labour migration: 1) the EU Blue Card Directive; 2) the Seasonal Workers Directive; 3) the Intra–Corporate Transfer Directive; and 4) the Single Permit for Work Directive (European Commission, 2020). These directives all guarantee the right to “progressive access to the labour market and residence and mobility rights” to non-nationals and their families (European Commission, 2020).


But while they may be a doorway to a better standard of living, they are not a guarantee of obtaining it. Since directives are EU–level legislative acts, they cannot dictate the mechanisms by which a member state is to achieve a desired or stated outcome (i.e., the protection of human rights or economic development). This shortcoming affects the applicant, who falls under the legal jurisdiction of the member state.

Member states have to implement the directives into national law for them to be binding on residents. This can create a plethora of issues, usually because member states want the EU to perceive them as “team players,” while maintaining a degree of sovereignty. Since EU directives are mere templates to be negotiated at the state level, member states are given reasonable leeway in balancing their desire for sovereignty with a sense of solidarity with the EU community, but at a cost: having to compromise one’s national identity.



Economic Coordination in the European Union


a) EU Economic Policy


There is no formal economic policy at the EU level, but each member state is expected to cooperate on EU priorities that affect the overall economy, such as the migration budget. The 2019 economic policy briefing published by the European Parliamentary Research Service indicates that this coordination effort is “either ‘soft,’ working through moral persuasion and peer pressure, or ‘hard,’ achieving its aims with sanction mechanisms” (European Parliament). Even though any state that remains unreceptive to soft pressure and that consistently fails to cooperate with the EU agenda can be sanctioned by either the EU or the United Nations Security Council, the sanctioning process can be fraught with a multitude of issues that make cooperation challenging to achieve.


Yet the EU’s lack of formal economic policy poses an additional problem: the apathy found among some EU member states in response to studying migration trends and establishing equal partnerships with non-EU countries. While some EU states or regions show a significantly greater interest in forging relationships with non-EU countries and being involved in the integration process, others demonstrate little to no motivation at all.

The contrast can directly impact the EU’s economic development and migration flows. For example, since Italy is likely to have greater labour migration than some other member states, it relies heavily on EU funds, such as the Internal Security Fund and the Asylum, Migration, and Integration Fund. As Italy’s economy expands, it invests also more funds into the EU, making it more active at the EU level in comparison to other member states. But this can be prevented with a formal economic policy that would also serve to manage state expectations, to stabilize migration flows, and to prevent regionalism.


However, while multilateral cooperation may well be ideal in theory for addressing labour migration problems, normative competition among member states creates a problem.

Rivalry and economic competition among the member states detrimentally impact not only the EU’s migration efforts but also its overall economy. The problem likely stems from the lack of definition of the EU’s role. Despite modern democracy being founded on state–society cooperation, without clearly established boundaries between the two, an imbalance of power can result.



b) Economic Impetus for Migration


As noted in the introduction, Everett Spurgeon Lee conceptualized the push and pull factors of migration as education and employment opportunities, religious and political freedom, and rights in the receiving society. Lee’s push–pull theory includes a lack of economic prospects in the home country as an equally powerful drive. Among (a) labour migration, (b) forced displacement, (c) human trafficking, and (d) environmental migration, labour migration continues to be the main incentive.


In fact, some studies have suggested that labour migrants represent more than half of the world’s migration population (Woldeab, 2019). Between 2005 and 2015, labour migrants represented 20% of the EU workforce (OECD, 2017), which helped to address skill shortages in the receiving societies and reduce unemployment in the sending nations.


Key Issues


a) Loss of Migrant Contributions and Impact on the EU


Linguistic and institutional barriers make labour migrants particularly vulnerable to labour market fluctuations. As they are more likely to be in lower-skilled professions, have shorter employment tenures, and hold informal contracts, social upheaval can have a detrimental impact. COVID-19, for example, left many migrants without employment. This affected the host countries as well as the sending nations reliant on the labour migrant’s remittances inflows.


In fact, a December 2020 study on the consequences of COVID-19 on labour migrants warned that:



“Approximately 3.1 million EU mobile workers in EU14 + UK countries are at risk of becoming unemployed due to the pandemic, accounting for 31% of the 10.2 million employed workers in the region. Among these workers at risk, 395,000 face a high risk of layoffs. As far as extra-EU migrants are concerned, more than 6.1 million workers, or 32.7% of the 18.9 million individuals employed in EU14 + UK countries, may become unemployed due to the pandemic. Almost a million of them (974,000) fall in the very high-risk category” (Mazza & Fasani, 2020).


This study further suggests that job termination can have significant consequences for labour migrants, who might be forced to return to their countries of origin or to fall under an “irregular migrant” status. This would mean that the migrant’s right under Regulation (EU) 2016/399 to stay or reside in the host country would be legally revoked (European Commission), the outcome of which would be a decrease in financial inflows to low- and middle-income nations and a loss of contribution to the EU’s economy.



b) COVID-19 Containment Measures and Restriction of Non-EU Migrant Rights


The most aggressive COVID-19 containment measures in the EU have been in the form of internal restrictions. However, restrictions on cross-border movement have been considered an important tool in containing the outbreak. Although these restrictions are short term and allow for freedom of movement not long after they are enforced, they have generated much political debate in the EU over labour migrant rights, with a focus on the EU’s particular governance role and its influence over member states.


In a publication by Frontiers in Human Dynamics, Covid-19 Using Border Controls to Fight a Pandemic? Reflections from the European Union, Espleth Guild argues that the pandemic has unveiled the incoherence of EU policies and exposed the insufficiency of multilateral cooperation among member states (2020). The inevitable result is migrants facing undue restrictions because of unresolved internal problems at the EU level. These restrictions can produce a domino economic effect and thus undermine any activist efforts toward preventing human rights violations.


Further in the article, Guild notes that the “overarching framework of EU and member states includes an obligation to coordinate action (the mainstreaming duty in Article 9 TFEU), which includes cooperation to promote the protection of public health.” However, multilateral cooperation among member states was inconsistent on public health, and various policy strategies at the EU level were incoherent, leading to a border control reflex to rule (Guild, 2020).


Conclusion


The EU’s COVID-19 security measures have had a detrimental economic impact in the EU and have negatively affected migrants’ rights. The development and facilitation of a formal economic policy for COVID-19 at the EU level could help prevent such scenarios. A redefinition of the EU’s relationship with the member states and the establishment of complementary EU measures for any member state whose efforts have fallen behind target would also ease the path forward, as would more effective multilateral cooperation in addressing cross-border health threats.


There is a greater need on the part of EU member states to recognize that their obligations are not only to the EU but to non-EU workers residing in the European zone as well. In fact, Article 2.1 of the International Covenant on Civil and Political Rights, Article 2.1 of the Convention on the Rights of the Child, Article 7 of the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, and Article 1 of the European Convention on Human Rights all provide an obligation for EU member states to protect each individual within their jurisdictions. Specifically, member states have an obligation to “guarantee, ensure, and protect the human rights of all persons within their jurisdiction, regardless of nationality” (Ktistakis, 2013), something that will require a human-centric approach to border control policies.




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