European Journal of Migration and Law 15 (2013) 239–243
brill.com/emil
Editorial
Governance of Migration in the EU:
Home Affairs or Foreign Policy?
Anna Kocharov*
European University Institute, Department of Law, Villa Schifanoia,
Via Boccaccio 121, I-50133 Florence, Italy
It is fundamental that foreign countries concerned about the status, safety, and security of their
nationals in the United States must be able to confer and communicate on this subject with one
national sovereign, not the 50 separate States.
Arizona v. United States, 132 S. Ct. 2492 (2012)
This affirmation by Justice Kennedy written for the majority opinion of the US
Supreme Court on 25 June 2012 would not have been possible in Europe, at least
not for the time being. Construed as an essentially internal policy, part of the area
of freedom, security and justice (AFSJ) and closely linked with the abolition of
internal borders, EU immigration policy is only developing its external dimension,
in sharp contrast to the American construction of immigration as an integral part
of foreign relations.
Yet, this was not always the case. Originally, immigration was used in and by
the EEC to enhance integration (and interdependence) between states through
deregulatory concessions on cross-border mobility of economic actors. EC law
secured migration-related rights to workers, service providers, and later also service recipients1 – rights that could be enforced against the state directly in national
courts, fuelling bottom-up integration. Enforcement of an agreement between
states was no longer an exclusive prerogative of the contracting parties dependent
on their action but could also be done by the individuals directly in national
courts. This mechanism was used not only for integration of Member States within
the European Community but also between the Community and third states.2
*) E-mail: [email protected].
1) Articles 48, 52 and 59 Rome Treaty (1957), currently Articles 45, 49 and 56 TFEU; Case 186/87 Cowan.
2) Europe Agreements concluded with Bulgaria OJ 1994 L358, the Czech Republic OJ 1994 L360, Estonia
OJ 1998 L68/3, Hungary OJ 1993 L347, Latvia OJ 1998 L26/3, Lithuania OJ 1998 L51/3, Poland OJ 1993 L348,
Romania OJ 1994 L357, Slovenia OJ 1999 L 51/3, Slovakia OJ 1994 L359, Croatia OJ 2005 L26/3. EuroMediterranean Agreements concluded with Algeria (2005) Article 67, Morocco (2000) Article 64 and Tunisia (1998) Article 64. Partnership and Cooperation Agreements concluded with Armenia (1999) Article 20,
© Koninklijke Brill NV, Leiden, 2013
DOI: 10.1163/15718166-00002034
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Migration-related provisions of EC law (the so-called “market freedoms” as well
as the worker clauses of mixed external agreements) were found to confer rights
exclusively on nationals of the contracting states as opposed to foreigners
­generally.3 A direct link was established between the strength of interstate integration and migration rights of nationals of the contracting states.4 The level of
integration between the states envisaged by treaty drafters defined the scope of
rights conferred on the individual and the residual powers of the state to regulate
immigration.5 Immigration was thus instrumental to developing relations between
states, a typically external objective where the actor is nation state.
This interstate orientation started to change in Maastricht. Following the Single
European Act and the Schengen Agreement, Article K(1)3 TEU-Maastricht introduced explicit EU competence on immigration linked to justice and home affairs
( JHA), subsequently communitarised by the Amsterdam Treaty.6 While this is
not a place for the overview of Treaty amendments,7 the most salient feature of
these developments was the persistent anchoring of immigration policy into the
Schengen space, framing it in terms of internal security and internal borders rather
than as a matter of external security and relations, not only part of the home affairs
Title in the Treaties but also developed, on the level of the Council, by national
interior ministers. The external nature of immigration policy inasmuch as it regulates foreign subjects appeared to be forgotten.
The Lisbon Treaty, to my mind, opens another page. On the one hand, the Lisbon reform entrenched asylum and immigration as “common policies” of the
Union, seemingly insulated from market integration and from the CFSP;8 regulation of third-country nationals remains part of the AFSJ, an internal policy par
excellence.9 On the other hand, the need for EU external action is acknowledged
Azerbaijan (1999) Article 20, Georgia (1999) Article 20, Kazakhstan (1999) Article 19, Republic (1999)
Article 19, Moldova (1998) Article 23, Russia (1996) Article 23(1), Ukraine (1998) Article 24, Uzbekistan
(1999) Article 19. Other agreements with provisions on migrant workers: Stabilisation and Association
Agreement with Croatia (2005) Article 45; Agreement with Yugoslav Republic of Macedonia (2004)
Article 44; 1963 EEC-Turkey Association Agreement and Decision 1/80 of EC-Turkey Association Council.
3) Article 4(1) Regulation 3/58/EEC; Article 1 Regulation 1612/68/EC; cases 238/83 Meade, C-230/97
Awoyemi.
4) Cases C-237/91 Kus, C-285/95 Kol, C-37/98 Savas, C-235/99 Kondova, C-63/99 Gloszczuk.
5) Case C-416/96 El Yassini.
6) Articles 61–69 EC as amended by the Treaty of Amsterdam.
7) For the most recent see E. Guild and P. Minderhoud (2012) The first decade of EU migration and asylum
law, Leiden: Martinus Nijhoff; S. Peers (2011) EU Justice and Home Affairs Law, Oxford: Oxford University
Press; A. Wiesbrock (2009) Legal Migration to the European Union Ten Years after Tampere, Nijmegen:
Wolf Legal Publishers; M. Condinanzi, A. Lang, B. Nascimbene (2008) Citizenship of the Union and Free
Movement of Persons, Leiden: Martinus Nijhoff.
8) The Lisbon Treaty drew a clear distinction between these three policies of the Union, which are listed
as separate points 2, 3 and 5 of Article 3 TEU; these three policies are further defined in three separate titles
of the Treaties: Title V TEU for the Union’s external action, Titles I–IV TFEU for the internal market and
other policies connected to it, and Title V TFEU for the AFSJ and immigration therein.
9) Article 3(2) TEU and Article 67(1) TFEU.
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explicitly both in the Treaty text and by the European Council.10 The external
aspects – if not nature – of immigration policy are increasingly present in the
institutional arrangements, e.g. the European External Action Service, which
lists migration as one of its policy fields, or operational cooperation between
FRONTEX and third states.11 These developments are bound to change the extent
and the construction of Union’s immigration competence. Once both immigration and foreign policy enter the ratione materiae of Union law,12 it is only a
matter of time before Member States lose their powers to regulate immigration
externally.
In light of these developments, the papers collected here discuss the external
aspects of EU immigration policy and the interplay between the internal and the
external dimensions.13 Jacobsson demonstrates how the incompleteness of the
internal market in services prevents the Union from undertaking external commitments under the GATS. The development of these commitments by individual
Member States follows similar sector-based rationale observable in EU common
immigration policy,14 posing a question of when the exercise of internal Union
powers under the common immigration policy pre-empts national action externally. Garcia Andrade elaborates on the theme of external powers of the Union as
regards immigration, discussing alternative legal bases, the existence and exclusivity of Union’s powers. Beyond the legal considerations of Union competences
and the variety of legal and policy tools, Papagianni illustrates the wide variety of
actors emerging in the external dimension of immigration and the challenges this
poses for elaborating a single external voice for the Union. Korneev shows how
the EU exploits migration governance projects to advance its presence in Central
Asia, discussing the inconsistency that arises from parallel EU and Member State
action; the interaction (and competition) is not only between Member States and
the Union but also with third states and international organisations, rendering the
10) See the contribution of Garcia Andrade in this issue.
11) Working Arrangements establishing operational cooperation between the European Agency for the
Management of Operational Cooperation at the External Borders of the Member States of the European
Union (Frontex) and the National Security Council of the Republic of Armenia (22 February 2012), the
State Border Committee of the Republic of Belarus (21 October 2009), the Ministry of Internal Affairs of
Georgia (4 December 2008), the Border Guard Service of the Republic of Moldova (12 August 2008), the
Border Guard Service of the Federal Security Service of the Russian Federation (14 September 2006), the
Administration of the State Border Guard Service of Ukraine (11 June 2007).
12) Especially considering the removal of parallel Member State powers in immigration formerly secured
in Article 63 EC.
13) For recent scholarship in this area see M. Maes, M.-C. Foblets, Ph. De Bruycker, D. Vanheule and
J. Wouters (eds) (2011) External Dimensions of EU Migration and Asylum Law and Policy, Brussels: Bruylant;
S. Wolff and G. Mounier (2011) ‘The External Dimension of JHA: a New Dimension of EU Diplomacy’, in
S. Wolff, F. Goudappel and J. De Zwaan (eds) Freedom. Security and Justice after Lisbon and Stockholm, The
Hague: TMC Asser Press; B. Martenczuk and S. Van Thiel (eds) (2010) Justice, Liberty, Security: New Challenges for EU External Relations, Brussels: ASP-VUB Press.
14) See directives 2005/71 on researchers, 2009/50 on highly-skilled workers, and proposal for a directive
on intra-corporate transferees COM (2010) 378 final.
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need for coordination between the Union and national action even more pressing.
Mc Namara focuses on asylum, discussing how the combination of external practical cooperation and internal Union law creates strong joint action by Member
States in the territory of third states raising potentially, at least once the EU accedes
to the ECHR, questions of joint responsibility of the Union and Member States
for this external action. It remains to be seen whether limiting EU action to
mere framework for national cooperation will limit liability of the Union under
the ECHR.
Several points come to mind from reading these contributions. First, despite
the traditional rhetoric about the external dimension of an internal immigration
policy, the actual function of immigration powers externally is linked to foreign
relations generally much more than to the internal AFSJ.15 As EU action under the
CFSP consolidates and strengthens, the external element of immigration policy is
increasingly more likely to play a role in Union’s foreign relations. Vice versa, the
stronger EU external competences in immigration, the more leverage they will
have as a tool for the CFSP. This is not a return to immigration as a tool for interstate integration (and relations between states) but a first step to it. Now, however, the actor is the Union, no longer the nation state.
Second, the exercise of this competence externally, just like the exercise of
the Union’s internal powers, is directed and defined by functional Treaty
objectives.16 Arguably, the Treaties in this respect only contain very broad general
objectives incapable of delimiting Union’s conferred powers through functional
interpretation,17 while more precise policy objectives are found in secondary EU
law and Conclusions of the European Council.18 But will the Court treat functional
objectives set in Council Conclusions and secondary law as equivalent to Treaty
objectives for the purposes of defining Union’s implied external powers? Can the
powers of the Union fluctuate with each meeting of the European Council and be
redefined, together with the objectives, in the process of political negotiations on
individual directives and regulations? I very much doubt it and therefore disagree
15) This is also corroborated by other research, for instance as regards visa policy, C. Finotelli and
G. Sciortino ‘Through the Gates of the Fortress: European Visa Policies and the Limits of Immigration
Control’, 14 Perspectives on European Politics and Society (2013), 80–101.
16) The conferral of powers on the Union (Articles 1, 3(6) TEU and Article 352 TFEU) and their exercise
(Articles 4(3), 5 TEU and Articles 7, 120, 145 TFEU), the powers of Union institutions (Article 13(1–3) TEU
and Article 65(4) TFEU), the provisions on enhanced cooperation (Article 20(1–2) TEU), CFSP (Article 23
TEU) and EU’s external action (Articles 205 and 216(1) TFEU), as well as the provisions on the Union’s
budget (Article 311 TFEU) and fundamental rights (Article 52(1) Fundamental Rights Charter) remain
grounded in objectives.
17) For a more detailed discussion see A. Kocharov (2012), ‘Subsidiarity after Lisbon: Federalism without a
Purpose?’, in: L. Azoulai, L. Boucon and F.-X. Millet (eds), Deconstructing EU Federalism through Competences, EUI Working Paper 2012/06, Florence, Italy.
18) Article 68 TFEU explicitly gives the European Council powers to set policy objectives in the AFSJ; see
also Article 15 TEU regarding Union policies generally, Article 22 TEU for the Union’s external action and
Article 26 TEU for the CFSP.
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that objectives defined politically outside the Treaties suffice for the establishment of implied external powers of the Union.19 Absence from Union Treaties of
functional objectives that could be interpreted in terms of effet utile, at least as
regards EU policy on legal immigration in Article 79 TFEU, presents, in my view,
an insurmountable obstacle for Union external action based on the implied powers doctrine. In these circumstances, any external action of the Union must strictly
follow the exercise of internal powers.20
Third, politically at least, individual external commitments of Member States
are likely to jeopardise their willingness, if not capacity, to adopt joint measures
on the Union level, both internally and externally.21 It seems therefore incompatible with the Treaty objective of “common” policies on immigration and asylum
that the Union should encourage Member States enter into further external commitments individually albeit under EU framework of Mobility Partnerships.
The papers collected here are the result of a workshop held at the European
University Institute on 19 October 2012 funded by the Academy of European Law
and the EUI Presidency under Josep Borrell. The authors would like to express
their gratitude to Professors Marise Cremona, Philippe DeBruycker, Jean-Pierre
Cassarino, Anna Triandafyllidou and Andrew Geddes, as well as to Antonia Carzaniga of Trade in Services Division, WTO Secretariat and Aleksejs Dimitrovs of the
European Free Alliance, European Parliament for their reviews and discussion of
the first drafts.
19) However, this would not be a problem where Council Conclusions or recitals to EU secondary acts
establish in a more concrete form a broad but functional objective found in the Treaties for then the powers would follow from the Treaties.
20) Paras 16–17 and 22 Case 22/70 ERTA, paras 114 and 116 Opinion 1/03 Lugano.
21) Paras 126–127 Opinion 1/03 Lugano, where the Court underlines the importance of taking into account
“not only the current state of Community law in the area in question but also its future development,
insofar as that is foreseeable at the time of that analysis” for the purposes of establishing implied external
powers of the Union on the basis of the exercise of internal powers. EU rules would not be affected by the
international commitments of Member States where both are limited to laying down minimum standards,
for in this case any conflict can be resolved by applying the highest standard. One may wonder whether
international commitments of Member States going beyond minimum standards may render them more
reluctant politically to adopt divergent rules on Union level.