‘We want you! But . . .’ Recruiting Migrants and Encouraging Transnational Migration Through Progressive Inclusion

• Date: 01 November 2009
• DOI: http://doi.org/10.1111/j.1468-0386.2009.00486.x
• Published date: 01 November 2009
• Author: Anuscheh Farahat

eulj_486700..718

‘We want you! But...’Recruiting

Migrants and Encouraging Transnational

Migration Through Progressive Inclusion

Anuscheh Farahat

Abstract: The article submits a proposal for outlining the present body of legal norms

in the f‌ield of European migration and immigration law. To this end, it suggests under-

standing European migration and integration law as shaped by two principles: the prin-

ciple of congruence between a state’s territory, authority and citizenry and the principle

of progressive inclusion. According to the established principle of congruence, the grant-

ing of rights to third-country nationals (TCNs) is always geared to the ideal image that

the persons permanently living on a territory are—in reality—part of the citizenry of

that state and subject to the state’s authority. According to the more recent principle of

progressive inclusion, TCNs are to be gradually included into the host country’s society

by approximating their rights progressively to the rights of citizens. There are potential

tensions between the two principles, which can be explained by the diverging philosophi-

cal and political concerns that they follow and the conceptions of migration that each

uses. The article then goes on to explore the inf‌luence of both principles in current

European migration and integration law. It brings forward the argument that current

European migration and integration law is structured as much by the ‘older’ principle of

congruence as by the principle of progressive inclusion. This assumption will be illus-

trated by the examples of the Long-term Residents Directive (LTR Directive). Impor-

tant provisions of the proposal for a framework directive intended to guarantee TCNs’

equal treatment with EU citizens in social matters (Draft Framework Directive) and

the directive on the highly skilled migrant workers (Blue Card Directive) will also be

taken into account. Against the background of the highly contested legal f‌ield of migra-

tion and integration law, using the language of principles provides a useful tool not only

for better grasping the current shape of this legal f‌ield, but even more for the legal

discourse on the future development of European migration and integration law.

I Introduction

The regulation of legal immigration has become an important issue of the European

Commission’s proposals in migration law. Providing avenues for legal labour migra-

tion is perceived as necessary for economic reasons.1At the same time, the relevance of

1COM (2005) 669, 3 et seq.

European Law Journal, Vol. 15, No. 6, November 2009, pp. 700–718.

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the rights conferred upon migrants due to residence is being stressed.2Despite the

variety and divergence of the legal Acts, the purpose of this contribution is to submit a

proposal for the outline of the present body of legal norms in this f‌ield. I start by

presenting European migration and integration law characterised by two principles,

which are in latent tension with one another: the principle of progressive inclusion and

the principle of congruence between a state’s territory, authority and citizenry. I will

introduce the two principles as they are grounded in international law. In considering

the principles together, the possible tensions between them will be explained as result-

ing from different political and philosophical concerns—and their differing concep-

tions of migration. The way in which the principles relate to one another will be dealt

with in terms of their diverging concerns and conceptions. I will also examine what the

principles imply regarding the regulation of migration and integration issues. Next, I

will expose the role of both principles for the structure of European migration and

integration law. This role will be exemplif‌ied by the examination of the Long-term

Residents Directive (LTR Directive).3I will also highlight some provisions of the Draft

Directive on a single application procedure for a single residence and work permit in a

Member State and a common set of rights for third-country nationals (Draft Frame-

work Directive)4and the Directive on highly skilled migrant workers (Blue Card

Directive)5. Next I will show how the provisions of these directives can partly be

construed as embodying the principle of progressive inclusion and partly as an expres-

sion of the principle of congruence. Finally, by developing and illustrating both prin-

ciples using these examples I will point to some future challenges of European

migration and integration law and disclose new leeway for legal argumentation in the

f‌ield of migration law.

II Progressive Inclusion and Congruence as Migration-Related Principles in

International Law

The term European migration and integration law is def‌ined here as encompassing all

legal Acts regulating the legal status of TCNs living (at least partly) within a Member

State of the European Union (EU)—and their mobility rights.6I would like to make the

case that European migration and integration law is characterised by two principles

potentially being in tension with one another. By this, I mean the principle of progres-

sive inclusion of migrants in the host state’s society and the principle of congruence

between the state’s territory, authority and citizenry. These are f‌irst of all structuring

principles of European migration and integration law.7As such, their function is to

structure and systematise the existing legal material.8In addition, both principles can

2COM (2005) 512, 6 et seq.

3Council Directive 2003/109/EC, [2004] OJ 2004 L 16, 44.

4Proposal for a Council Directive, COM (2007) 638.

5Council Directive 2009/50/EC on the entry and residence of third-country nationals for the purpose of

highly qualif‌ied employment, [2009] OJ L 155, 17.

6For the purpose of this article this term shall be restricted to legal Acts concerning persons, who possess

a residence permit and do not live in the EU as refugees or asylum seekers.

7As such, both principles will be examined infra, sub B.

8A. von Bogdandy, ‘Constitutional Principles’, in A. von Bogdandy and J. Bast (eds), Principles of

European constitutional law (Hart, 2006), 149, at 155; id, ‘General Principles of International Public

Authority’, (2008) 9(11) German Law Journal 1909, 1910 et seq.; M. Koskenniemi, ‘General Principles’, in

id, Sources of international law (Dartmouth et al., 2000), 381; E. Schmidt-Aßmann, Das allgemeine

Verwaltungsrecht als Ordnungsidee (Springer, 2nd edn, 2006), margin no 3, 5.

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