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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 tends to have economic patterns. That is to say that, it is likely to be driven by economic opportunities to a much greater extent, than by the presence of political tension, hostile regimes (such as dictatorships), or environmental threats. This trend has been observed in the European Union, where a surprising majority of EU migrants have left their countries of origin in pursuit of better economic opportunities and a more ideal lifestyle.


In Theory of Migration by Everett Spurgeon Lee, – Professor of Sociology at the University of Georgia, – advanced a theory of migration which suggests that certain “push” and “pull” factors are the main causes of migration. Lee conceptualized the push factors as lack of economic opportunities and education in the home country (Lee, 1966). On the other hand, pull factors were seen as potential benefits available in the receiving society, – such as economic opportunities, religious and political freedoms and rights, and greater access to better educational resources (Lee, 1966). Non-EU migrants who decide to relocate to the European Union tend to have a positive pre-existing perception of European states, as capable of offering a reasonably stable political environment, as well as good employment prospects, a decent salary, a clean environment and low crime rates (pull factors).


Yet since the beginning of the coronavirus outbreak, almost a dozen of the 27 EU countries have closed their borders to non-EU migrants (Thiessen, 2020). The decision has generated an intense debate among EU member-states on the sensitive subject of labour migrant rights. One side contends that the EU’s act of closing borders failed to effectively address the problem, while the other side argues along the popular line that ‘desperate times call for desperate measures.’ This has exposed a vulnerability in the EU’s system of dealing with international health threats, particularly in its preparedness and capacity to accommodate non-EU migrants.


Labour Migration in the European Union


a) EU’s Migration Policy


The European Union’s migration policy is a system of border security measures adopted by EU member states to regulate and control migration flows in the European Union zone. These measures include border control, asylum procedures, and return and development programs. Due to the fact that EU member-states retain sovereignty under EU law, these measures tend to be disproportionately adopted into national law.


The policy’s objectives are to ensure “fair treatment of third-country nationals,” to promote an “efficient management of migration flows,” and to prevent and “fight against irregular migration, smuggling of migrants and trafficking in human beings” (European Commission, 2020). Migrants may be either legal (“regular migrants”), undocumented (“illegal migrants”), or a non-national who has made an application for protection under the Geneva Refugee Convention and Protocol (“asylum seeker”) (European Commission). While an asylum seeker’s status in the EU depends on whether they are granted or refused asylum, a migrant may lose their legal status if their entry or residence extends beyond that provided by their short-stay visa or work permit, or if it is in violation of the host country’s immigration laws.


b) Labour Directives Under Policy


There are multiple reasons why a non-EU migrant might decide to relocate to the European Union, including but not limited to employment, studies/research, family reunification and/or international protection. The European Union offers a Schengen visa and work permits relevant to the non-nationals application to assist with the move (European Commission, 2020).


While policies governing short-stay visas and work permits are being constantly updated to reflect a state’s shifting priorities and changing international circumstances, 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 (the European Commission, 2020). Among various rights, these directives guarantee “progressive access to the labour market and residence and mobility rights” to the non-national and their families (the European Commission, 2020).


But while these directives might offer applicants access to a better life, they do not provide the actual means for obtaining it. Because directives are EU-level legislative acts, they cannot dictate the mechanisms through which a member-state is to achieve a desired or stated outcome (i.e. the protection of human rights or economic development).

This has a direct effect on the applicant, who falls under the legal jurisdiction of the given EU member-state. The member-states themselves have to first implement the directive into national law for it to be binding on residents, which can create a plethora of issues. Member-states want the European Union to perceive them as “team players,” but they would nevertheless like to maintain a certain amount of self-determination and identity in the eyes of the world. Since EU directives serve as mere templates that are negotiated at the state level, the member-state is given a fair amount of leeway in balancing its desire for sovereignty with a sense of solidarity with the EU community, but at a cost. While integrating the directive into its legal system, it risks losing its 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 (EPRS) indicates that this coordination effort is “either 'soft', working through moral persuasion and peer pressure, or 'hard', achieving its aims by means of sanction mechanisms” (European Parliament). While any state that remains unreceptive to soft pressure and consistently fails to cooperate with the EU agenda can be sanctioned by either the EU or the UNSC, the sanctioning process tends to be fraught with complicated issues that can make cooperation even more challenging to achieve.


The European Union’s lack of formal economic policy poses an additional problem: the desire among EU member-states to study migration trends and to establish equal partnerships with non-EU countries is disproportionate and asymmetrical. Some EU states and regions tend to take a significantly greater interest in forging relationships with non-EU countries and being involved in the migrant integration process in comparison to others.

That tends to have a direct impact on the EU’s economic development and migration flows. For example, since Italy is comparatively more likely to have greater labour migration flows, it relies more heavily on the Internal Security Fund and the Asylum, Migration and Integration Fund and requires greater financial support from the EU. As Italy’s economy expands, it also invests more funds into the EU, making it more active at the EU level in relation to other states. This asymmetry could be prevented with a formal economic policy, which would also serve to manage state expectations, stabilize migration flows, and prevent regionalism.


However, while multilateral cooperation may well be ideal in theory for addressing labour migration problems, normative competition between member-states poses an additional problem.

Rivalry and economic competition between the member-states have a detrimental impact not only on the EU’s migration efforts but also on its overall economy. The problem seems to stem from the fact that the EU’s role is not clearly defined. And, while the entire notion of modern democracy is founded on state-society cooperation, without clear boundaries established between the two, an imbalance of power can be the 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 country. Lee’s push-pull theory includes a lack of economic prospects in the home country as an equally powerful drive. Among labour migration, forced displacement, human trafficking and environmental migration, employment continues to be the main incentive.


In fact, some studies seem to suggest that labour migrants represent more than half of the world’s migration population (Woldeab, 2019). Between 2005-2015, labour migrants represented 20 per cent of the EU workforce (OECD, 2017), which would have helped to address skills 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. Since they are more likely to be in lower-skilled professions, shorter employment tenures, and informal contracts, social upheaval tends to have a more detrimental impact. The coronavirus outbreak not only left many migrants without employment but affected the host country and also the sending nations reliant on the labour migrant’s remittances inflows.


A December 2020 study centred on the consequences of the coronavirus outbreak on labour migrants warns 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 thousand face a very high risk of being laid off. As far as extra-EU migrants are concerned, more than 6.1 million workers may become unemployed due to the pandemic, 32.7% of the 18.9 million individuals employed in EU14+UK countries. Almost a million of them (974 thousand) fall in the very high-risk category” (Mazza, J., Fasani, F., 2020).


The study further suggests that job termination can have severe consequences for labour migrants, who might be forced to return to their countries of origin or to fall into an “irregular migrant” status, which would mean that a migrant’s right under Regulation (EU) 2016/399 to enter, stay or reside in the host country has been legally revoked (the European Commission). That can happen for a variety of reasons, including the expiration of a short-stay visa, an extended absence from the EU country for more than 12 consecutive months, or for presenting a threat to EU public policy and security (the European Commission). The outcome of a migrant’s unplanned return 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


During the pandemic, the most aggressive COVID-19 containment measures in the EU have come in the form of internal restrictions. However, restrictions on cross-border movement have been seen as an important tool in containing the outbreak. While these restrictions have been short term and allowed for freedom of movement not long after having been enforced, they have generated a great deal of political debate in the EU on the topic of labour migrant rights. Much of this debate has focused on the EU’s particular governance role and its influence on member-states.


In the November 2020 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 not only unveiled the incoherence of EU policies, but it has also exposed the insufficiency of multilateral cooperation among member-states (Guild, 2020). This tends to produce an inevitable situation, where migrants face undue restrictions due to unresolved internal problems at the EU level. These restrictions can produce a domino economic effect and tend to undermine any activist efforts on human rights violations.


As the article advances, 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 the migrants’ rights.


The development and facilitation of a formal economic policy at the EU level may help to prevent any further scenarios. A redefinition of the EU’s relationship to 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.

On the part of the member-states, there is a greater need to recognize one’s obligation not only to the EU but also to non-EU workers residing in the European zone. In fact, Article 2.1 of the International Covenant on Civil and Political Rights (ICCPR), Article 2.1 of the Convention on the Rights of the Child (CRC), Article 7 of the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (ICRMW), and Article 1 of the European Convention on Human Rights (ECHR) all provide an obligation for EU member states to protect each individual within their jurisdiction. 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). In the post-COVID-19 environment, that will require a more human-centric approach to border control policies and one which might prove to be beneficial both to the EU’s economy and society.




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