European Citizenship and EU Immigration: A Demoi‐cratic Bridge between the Third Country Nationals' Right to Belong and the Member States' Power to Exclude

• Published date: 01 July 2016
• DOI: http://doi.org/10.1111/eulj.12197
• Date: 01 July 2016

European Citizenship and EU Immigration:

A Demoi-cratic Bridge between the Third

Country Nationals’Right to Belong and the

Member States’Power to Exclude*

Francesca Strumia**

Abstract: European citizenship entails, for EU nationals, a right to belong across borders.

This article questions the implications of this latter right for the status of third country

nationals in the EU. It contributes to address a gap between the literature on European

citizenship and the literature on the admission and civic integration of third country

nationals. The article begins by tracing a disconnect in the rules and narratives on admission

and naturalisation of third countrynationals in the EU. Thisis a disconnect between logicsof

individual rights protection, which European citizenship inf‌iltrates, and logics of state

sovereigntyand governmental discretion,which otherwise dominate relevantrules and narra-

tives. The article relies on the political science literature on mutual recognition and

demoicracy to reinterpret European citizenship’s norm of belonging across borders so as to

reconcile the disconnect. Ultimately, the theoretical bridge that the article draws between

citizenship narratives and immigration narratives offers a novel perspective on the tension

between liberalvalues and integration discoursesin Europe. It also sets out a possible frame

to begin rethinking rules of engagement and cooperation in the context of the EU common

immigration policy.

I Introduction

In January 2015, Lassana Bathily saved a number of people in a French supermarket

from death at the hands of ruthless terrorists. As a reward, in March 2015, he was

awarded French citizenship.

1

Rani Pushpa, an Indian woman, failed to learn Italian

* All websites referred in the paperwere last checked on May 25th, 2016.

** Lecturer in Law, University of Sheff‌ield. I am very grateful to Dora Kostakopoulou, Kalypso Nicolaïdis,

Eleanor Spaventa, Daniela Caruso,Paul James Cardwell, Tammy Hervey, Peter Spiro, Leila Hadj-Abdou

and NataliaStepaniuk for their insightfulcomments on earlierversions of this article. I received very helpful

feedbackon earlier drafts of this articleat the Oxford UniversityFaculty of Law EU Discussion groupand at

the Universityof Sheff‌ield MigrationResearch Network SeminarSeries, and I am trulygrateful to the partic-

ipants in those occasions. Thankyou also to Agustín José Menéndez, for his remarkable editorial care and

pointedsuggestions, andto the anonymous reviewerswhose commentshelped improvethe f‌inal version of this

piece.

1

Availa ble at http://mobile.interieur.gouv.fr/Actualites/L-actu-du-Ministere/Lassana-Bathily-est-devenu-francais.

European LawJournal, Vol. 22, No. 4, July2016, pp. 417–447.

© 2016 John Wiley& Sons Ltd. 9600 Garsington Road,Oxford, OX4 2DQ, UK

and 350 Main Street,Malden, MA 02148, USA

in 10 years of Italian residence. As a sanction, in March 2015, she was prevented from

taking the oath of Italian citizenship.

2

In June 2015, the beaches around Ventimiglia on

the border between Italy and France portrayed a disheartening scenario: bathing

European citizens looking for a tan, and homeless third country asylum seekers, hoping

to cross into France despite the French police pushbacks, and meanwhile looking for

shelter.

3

These disparate stories point in a common direction. Inclusion of a third country

national (hereafter, TCN) as a citizen, residentor just temporary visitor in a EU Member

State dependsin good part on governmental discretion in decidingon inclusion and exclu-

sion. Yet belongingin a EU Member State at its fullestentails a supranational citizenship,

which limits governmental discretion ina number of ways.

This articlefocuses precisely on how European citizenship affects, in thissense, the rules

of the immigrationgame. It questions how Europeancitizenship rules matterfor the status

and rights of TCNsin the EU, and how European citizenship’s underlying rationales may

contribute to rethinkrules of engagement and of cooperationin the context of a common

European immigration policy.

The quest may seem ill-def‌ined, at a time when European citizenship’s relevance to

Europe and to the project of integration is under threat from several perspectives. First,

the right of free movement in which European citizenship f‌inds most concrete expression

is in practice relevant to few, but has drawn the attention of many in Euro-skeptical

political agendas, and has ultimately become exposed to judicial backlash.

4

Second,

European citizenship’s political irrelevance becomes egregious at a time when Europe is

confronted with harsh expressions of national voice and tangible threats of exit. Finally,

European citizenship’s rights-protection legacy appears nullif‌ied by the dehumanising

experience of several TCNs at Europe’s frontiers.

It is precisely the dangerof rushed demise, under the inf‌luence of these perspectives, of

one of the richest conceptual achievements of Euro pean integration that makes this

article’s investigation pressing. The article argues that European citizenship harbors an

important theoretical acquis that is worth exploring further. It endeavors to spell out part

of this acquis, by focusing on its relevance for the EU immigration regime. It begins by

tracing a disconnect throughout rules, narratives and rationales resulting, respectively,

of European citizenship’s engagement with TCNs, and of the EU common immigration

policy and the Member States’immigration and nationality regimes. This is a disconnect

between logics of individual rights protection, which European citizenship inf‌iltrates into

the domain of immigration and nationality, and logics of state interest and discretion

which otherwise prevail in the latter domain, informing the recognised state’s power to

decide on admission and exclusion of aliens.

5

The article ultimately draws a conceptual

model of European citizenship linking its internal (i.e. free movement of EU nationals)

and external (i.e. inclusion of TCNs) functions through notions of mutual recognition

2

Available at http://www.huff‌ingtonpost.it/2015/03/01/sindaco-nega-cittadinanza_n_6778770.html. The de-

cision was laterreverted. See infra para.II.

3

Available at http://www.theguardian.com/world/2015/jun/17/this-isnt-human-migrants-in-limbo-on-ital-

ian-french-border?CMP=share.

4

See.g. Case C-333/13, Dano, EU:C:2014:2358.

5

See e.g. ECtHR, Sen v. Netherlands, Appl. No. 31465/96, judgment of 21 December 2001, para. 36: ‘as a

matterof well-established international lawand subject to its treatyobligations, a State hasthe right to control

the entry of non-nationals intoits territory’.

European Citizenship and EU ImmigrationJuly 2016

© 2016 John Wiley& Sons Ltd.418