‘Citizens’ and ‘Foreigners’ in EU Law. Migration Law and its Cosmopolitan Outlook

Published date01 May 2016
Date01 May 2016
Citizensand Foreignersin EU Law.
Migration Law and its Cosmopolitan
Daniel Thym*
Abstract: Migration has become a controversial subject across Europe and beyond. At the
same time, the EU has built up an impressive set of rules for third-country nationals over
the past two decades, whichunlike the mobility of EU citizensreceived comparatively
little attention apart from immigration and asylum specialists. This contribution presents
the constitutional framework for migration lawtowards third-country nationals and shows
in how far they depart from the paradigm of intra-European mobility. It will be argued that
differences can be rationalised by divergent objectives and do, nonetheless, not present a move
towards fortress Europe. EU migration law maintains the distinction between citizens and
foreigners at the same time as it protects migrants, i ncluding refugees. By accommodating
migrantsrights and self-government, EU migration law can be construed as an endeavour
to replace traditional notions of alienage with constitutional rules with a cosmopolitan outlook.
I Research Puzzle and Methodology
Classic international law distinguished categorically between citizens and aliens. With the
notable exception of refugees, states largely unfettered legal powers to control the entry
and stay of foreigners.
In todays world, such principled statement conf‌licts with the fac-
tual increase of cross-border movements, which ref‌lect and sustain wider globalisation pro-
As a result, migration has become a major policy issue around the world and raises
formidable conceptual puzzles.
In this context, the EU deserves our attention, which has
oftencapturedtheimaginationofacademicsfrom various disciplines as a laboratory of
rules for government beyond the state. Europes domestic mobility regime is regularly re-
ferred to as a model in theoretical accounts of transnational or postnational citizenship.
* Daniel Thym is Professor of Public, European and International Law and Co-Director of the Research
Centre Immigration & Asylum Law at the University of Konstanz in Germany, Universitätsstr. 10, Fach
D116, 78457 Konstanz, Germany.
See R. Jennings and A. Watts, Oppenheims International Law vol I (Oxford University Press, 1992, 9th edn.) ch. 9;
states may well have had generous migration regimes, but were not obliged to do so by international legal norms.
Cf. S. Castles and M.J. Miller, The Age of Migration (Palgrave, 2009, 4th edn.), ch. 57.
Forthe US perspective,see L. Bosniak,The Citizen and t he Alien (Princeton UP, 2006) and, for a global outlook,
see J.F. Hollif‌ield,The Emerging MigrationState, (2006) 38 InternationalMigration Review,885-912, 900-905.
See Y. Soysal, Limits of Citizenship (University of Chicago Press, 1994), ch. 8; J. Shaw, Citizenship of the Union:
Towards a Post-NationalMembership?, in Academy of European Law, Collected Coursesof the Academy of
European Law, vol VI-1 (Kluwer, 1998), 237-347, at 278-296; D. Kostakopoulou, The Future Governance of
Citizenship (Cambridge University Press, 2008); A. Shachar, The Birthright Lottery (Har vard University Press,
2009), at 175177; and M. Rosenfeld, The Identity of the Constitutional Subject (Routledge, 2010), at 235242.
European Law Journal, Vol. 22, No. 3, May 2016, pp. 296316.
© 2016 John Wiley & Sons Ltd. 9600 Garsington Road, Oxford, OX4 2DQ, UK
and 350 Main Street, Malden, MA 02148, USA
What is missing in many studies, however, is the legal regime for people without the nation-
ality of an EU member state.
There is much to be gained from confronting Europes traditional mobility regime
with new rules on border controls, immigration and asylum. In order to explain
their distinct character, I would like to make recourse to an apparent paradox,
the solution to which will be my device for describing and analysing EU migration
law towards third-country nationals. For half a century, European integration has
been def‌ined by the abolition of inter-state borders between member states. Italians
may move to Germany and reside there indef‌initely. Yet domestic free movement is
not replicated externally. The latest version of the EU Treaties explicitly calls upon
EU institutions to facilitate the eff‌icient monitoring of the crossing of external
Are these developments contradictory? It will be argued that this is not
the case. Notwithstanding practical policies, which may be perceived of as steps
towards fortress Europe, the constitutional regime for migration from third states
in the EU Treaties follows a distinct rationale. By accommodating migrantsrights
with particularistic self-government, it presents a noteworthy endeavour to replace
traditional notions of alienage with constitutional rules with a cosmopolitan
Methodologically, my argument concentrates on the constitutional analysis of
Treaty rules and objectives. It is a normative account focusing on legal rules in
the EU Treaties, no description of empirical facts in European societies. As a legal
contribution, it takes seriously legal-doctrinal arguments, while acknowledging that
abstract constitutional rules, in particular, cannot be captured fully by legal-doctrinal
hermeneutics alone. They convey a set of normative values and express basic choices
of societies, which change over time.
For that reason, this paper confronts the legal
exegesis of Treaty rules with theoretical positions of other disciplines in an attempt
to construct the normative-constitutional aspiration of rules on migration in the
EU Treaties.
It is submitted, therefore, that the exploration of constitutional rules
and principles benef‌its from interdisciplinary feedback in a process, which Armin
von Bogdandy has aptly described as doctrinal constructivism.
It shall be the basis
of my argument.
It is important to emphasise that I focus on a constitutional analysisnot on social
facts on the ground. Human rights are often violated, and there may even be instances
of systemic failure (like in the case of the Greek asylum system
), but this does not imply
that they loose their signif‌icance as constitutional rules. Supranational law, including
EU standards for migration, may structurally be more fragile than many state laws,
but it is submitted that its normative appeal remains intact.
They may trigger
institutional mechanisms that render the law more effective and can inf‌luence, as
constitutional rules, future legislation. Moreover, human rights, in particular, often
serve as trajectories for those supporting social change, including by means of
Art 77.1 TFEU.
See R.R. Cover, Foreword: Nomos and Narrative, (1983) 97 Harvard Law Review, 4-68, at 4-46.
cf M. Koskenniemi, Constitutionalism as Mindset, (2007) 8 Theoretical Inquiries in Law, 9-36, at 23-36.
A. von Bogdandy, Founding Principles of EU Law: A Theoretical and Doctrinal Sketch, (2010) 16
European Law Journal, 95-111, at 98-100.
cf ECJ, N.S. ET AL. C-411/10 & C-493/10, EU:C:2011:865, [2011] ECR I-13905.
See F. Snyder, The Effectiveness of European Community Law, (1993) 56 Modern Law Review, 19-54.
European Law Journal Volume 22
© 2016 John Wiley & Sons Ltd 297

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