EU Immigration Policy, Family Reunification, and Migrant Women's Rights

Introduction and Problem Statement

A number of developments are challenging the national identity and interests of Western European countries. Primary among these are the supranational integration and sovereignty sharing occurring between European Union (EU) member-state governments and EU governance organs, the ongoing inward migration of peoples from the global South and East into EU countries, and the continued elaboration and application of human rights — a matter of particular importance to potential migrants and EU residents of non-European origin. The existence of increasing migratory flows and a growing number of settled immigrant communities demands a policy response from the EU and its member states to address the situation of immigrant minorities, particularly with regard to the rights to be — or not to be — conferred upon them (Geddes 1995: 198).

Using a constructivist theoretical framework, this research aims to explore the extent to which international human rights discourse has influenced the formulation of a common EU immigration policy, specifically the Council Directive on the Right to Family Reunification for Third Country Nationals. It will examine the national and regional conditions under which international norms — defined as ideas about appropriate behaviour held in common by a group of actors with a given identity — affect supranational institutional change. The research intends to investigate the human rights norms taken into account by EU policymakers and then, using a feminist analysis, interrogate the appropriateness and adequacy of those norms as a basis for immigration policy. The explicit acknowledgement and the attempt to codify the rights of migrants in the European Union is an encouraging development; however, this research will explore the ways in which immigration legislation in Europe has been gendered to the detriment of migrant women, and the ways in which the human rights discourse itself is gendered.

Since the Maastricht Treaty (1993), immigration has become a regular feature of the EU policy agenda, yet, as the example of the final family reunification directive demonstrates, this fact does not necessarily entail that member states are willingly relinquishing their national sovereignty to a supranational authority. This research supports the work of scholars who have developed and contributed to the "venue shopping" approach (Guiraudon 2000, 2003; Larsen 2004). The venue-shopping model posits that member-state government elites have made a tactical choice to pursue immigration policymaking within the Council of Ministers at the supranational level in order to circumvent domestic constraints. These constraints take the form of human rights norms codified in national constitutions and the activities of advocacy groups, which serve to limit the latitude that interior and justice ministers can exercise in devising and implementing restrictive immigration policies. A close analysis of current immigration legislation leads one to conclude that certain member-state parties have successfully exploited the EU institutional structure to further legitimize and entrench across the EU a particular security-oriented understanding of national interest with regard to immigration policy.

Historical Context of EU Immigration Policy

Cooperation on immigration policy is a fairly recent occurrence in Europe. In the post-war period of economic expansion and institution building, immigration policy was framed in the European Communities mainly as a question of social and economic rights and the desire to create a single market in labour. The labour-importing European countries competed to acquire the best immigrants and set up the most beneficial labour migration agreements with exporting countries — mainly Southern European states and former colonies. In the 1970s, in response to the global recession, the traditional immigration countries suspended economic migration across the board. Although each country adopted a similar policy stance, there was little coordination or practical consideration of how the closing of borders and the cessation of labour importation might affect neighbouring countries.

In recent years, immigration has become a hotly contested issue across Europe; many of the problems associated with both waves of incoming migrants and existing communities of long-term resident immigrants are the subject of frequent and ongoing public debate. The subject of this study is EU policy addressing legal third-country migrants — in particular first-generation non-European women migrants who immigrate for purposes of family reunification.

From Schengen to Amsterdam: Institutionalizing Migration Governance

Since the political and social upheavals in Europe in the 1980s and 1990s, immigration policymaking in general has been caught up in political controversy over asylum. Many policymakers suspected that the upsurge in the number of asylum seekers was largely comprised of economic migrants; this governmental and media focus on "bogus asylum seekers" and illegal immigration caused the two issues to become conflated in public discourse, leading to more insecure conditions for all migrants residing in the EU (Freedman 2003; Joppke 1998). Immigration more generally was increasingly viewed as a threat to the economic and social security of states (Waever et al. 1993). The political context shifted again after September 11th and the terrorist bombings in Madrid and London. Internal security concerns rose on the agenda, and migration was increasingly presented as a danger to public order, cultural identity, and domestic and labour market stability — in short, it was securitized (Huysmans 2000: 752).

Prior to the Single European Act (SEA, 1986), immigration was exclusively a state-level concern. The passage of the SEA produced a renewed zeal for economic integration and member-state cooperation by setting a target date for the completion of the single market. The main goal of the single market, to be completed by the end of 1992, was to create a free market in goods, services, capital, and labour. Disagreements over the necessity of maintaining internal border checks — in order to distinguish between EU citizens and third-country nationals — competed with the realization that stringent border controls were proving costly and ineffective. Nevertheless, an overriding conviction that greater freedom of movement for workers would allow for greater efficiency in the distribution of labour led five European governments — Germany, France, and the Benelux states — to abolish their internal borders by adopting the Schengen Agreement in 1985. This arrangement, however, raised security concerns. The Schengen Convention, signed in 1990, established stricter external border controls to compensate for the loss of control over internal borders deemed necessary for the completion of the internal market. The objective of a common migration policy was "limited to compensate the potential negative impact of the suppression of internal borders" (Pastore 2002: 2). The Schengen Agreement was hampered both by its strictly intergovernmental nature, which required unanimity in all decisions, and by its lack of democratic legitimacy.

A protocol attached to the Treaty of Amsterdam incorporated Schengen into the European Union framework on 1 May 1999. The Treaty of Amsterdam gave the EU competence in the arena of immigration policy, whereby it was shifted from being a matter for intergovernmental coordination to one of shared competence. In Tampere, Finland, in 1999, the European Council agreed upon the parameters for a common EU immigration policy.