European Supranationalization: An Immigrant’s Nightmare or ‘Business as Usual?'

Written by Paige A. Isaacson

The Schengen Agreement, signed by Germany, France, Belgium, Luxembourg, and the Netherlands in 1985, signified an unprecedented step towards supranationality in the world. This pivotal intergovernmental agreement came into effect in 1995 when signatory countries were required to eliminate their internal border controls, forge a unified visa and asylum policy, carve out an area of free trade, and end restrictions on travel for citizens. Some citizens were thrilled at the prospect of unrestricted travel to neighboring countries. Others, typically in later signatory countries, were less enthused. Would this cripple individual state sovereignty? Would it force countries to unify immigration laws against their will? These questions constitute a mere fraction of the unknowns created by European unification. Another concern was the question of the  actual immigrants themselves. For instance, is the policing of the closed EU borders enforced in a humane manner? Does exclusion unfairly limit the opportunities available to extraterritorial immigrants? These issues became more urgent after the signing of the Treaty of Amsterdam in 1997, which updated and modernized the European Union-wide institutions that oversee the workings of the Schengen Area: the European Commission, the European Parliament, and the European Court of Justice. Additionally, the Treaty of Amsterdam requires states to implement various Schengen policies into their domestic legislation. These unprecedented policy moves continue to have far-reaching implications both in Europe and abroad.

One key question is whether a common immigration policy follows a lowest common denominator pattern, in which states adopt the policies of their most restrictive neighbors. This is one effect that integration tends to have on domestic policies. Indeed, it is far from unreasonable to fear the effects of regional integration. Immigrants beyond European borders would be expected to migrate in larger numbers, given the prospects of unhindered movement once inside EU borders. However, internal borders are far more complex than this. Unfortunately, the issue is often oversimplified by right wing EU parties. The EU border is indeed largely restrictive, which could become a nightmare for the immigrants of the Global South, who have already been put into subjugated positions in the first place by a repressive colonial past, and the lack compensatory redistributive justice in the present.

Whether  Schengen has achieved its intended goals of free movement for citizens and common immigration policies will ultimately illuminate the context of these concomitant ethical factors. What factors are most important in shaping EU immigration policy? Has supranationalization had as great an effect on unifying domestic policies as intended? This article intends to answer whether Schengen has achieved its goal of creating a common   immigration policy, and whether this goal and its consequences are ethically sound. Ultimately I have found that the the information and policing apparatuses that work to keep immigrants out of the area of free movement, while successful, make EU immigration policy unethical.

The article begins with a discussion of the relevant ethical perspectives through which it will later analyze the Schengen acquis itself. The acquiscommunautaire refers to the formal set of treaties and regulations related to unified European immigration policy and includes the Schengen Agreement and all its sister treaties. Next will be an analysis of whether Schengen has achieved its political goals since 1995 through its implementation into the domestic law of EU member states via the Treaty of Amsterdam. Finally, it will investigate the effects that this has had on three signatory states’ policies to illuminate the effects of supranationality on national political workings and state sovereignty itself. The twin concerns about Schengen - its propensity to lead to a lowest common denominator principle and whether or not states wholly abide by that principle - will guide a discussion of ethics as it relates to the non-European immigrant.

Theoretical and Political Considerations of Immigration

Liberal Egalitarianism Perspective

According to political scientist Joseph H. Carens, the theory of liberal egalitarianism stems from the presupposition that all human beings are inherently equal (Carens 1992). From this notion extends the right to freedom of movement as a fundamental right and a precondition of other various freedoms. Freedom of movement is a particularly consequential aspect of liberal egalitarianism, which underlines the fact that individuals should pursue their interests and make choices regarding their lives that do not interfere with the pursuits of others. As human beings are equal by nature it follows that humans the world over should have equal opportunities; if such opportunities, particularly economic opportunities, are not present in one’s home country, individuals should belong to a liberal egalitarian system which permits them to travel to where the opportunities are.

According to Robert E. Goodwin, if the most developed countries refuse to admit extraterritorial migrants, those countries have a responsibility to compensate the marginalized populations from whom they are denying opportunity and material wealth (Goodwin 1992). Accordingly, if the most developed states are to significantly restrict extraterritorial immigration as they do today, they owe comparable financial compensation to the less developed states. Compensation, as a way to forge economic, social, and political equality throughout the world, is both a way to equalize individual liberty and equal opportunity, and a desirable consequence in its own right (Carens 1992). However, in a practical sense, large-scale compensation directives are politically unfeasible. It would be virtually impossible for states to agree on adequate compensation without a complex, binding compensation, or redistributive regime (Harris 2007). This is just one of the practical limitations of financial compensation in the liberal egalitarian perspective. Immigration thus serves as the more feasible redistributive option.

Restrictive border mechanisms are morally repugnant from this perspective. One example many liberal egalitarian theorists use to elucidate this perceived immorality is feudalism. Feudalism dictates opportunity and overall life course according to one’s birthplace. Indeed one could compare medieval feudalism with modern citizenship for the following reasons:

1. It is dictated by birth. 2. It is by and large not subject to individual whim 3. It determines one’s life course and stock of opportunity. Birth into a developed country such as England or Germany is ostensibly comparable to birth into medieval nobility while birth into a country such as Bangladesh is comparable to birth into the peasantry. In a similar vein, modern-day mechanisms of citizenship force individuals to live within the confines of imagined state boundaries or “imagined communities” (Anderson 2006). Few would argue in favor of Medieval feudalism, so why does the same breed of skepticism not condemn the modern citizenship regime?

A similar contemporary violation of the liberal egalitarian tradition lies in the discrepancy between the freedom of exit and the freedom of entry. These phenomena are generally understood to be asymmetrical, but should they be? The right to leave one’s country of birth is an internationally realized freedom explicitly codified in the Universal Declaration of Human Rights (UN General Assembly 1948). The right to enter a separate country however, is hardly a guaranteed right. In reality, since the creation of the Schengen Area, the European Union as a supranational body, has limited its acceptance of extraterritorial immigrants more than ever before, particularly by policing its frontiers. The asymmetrical inconsistency between the freedom to leave and the freedom to enter should be obvious and leads one to the following question: if the right to exit is a guaranteed and legally defensible freedom while the right to enter another country is not, where is one supposed to go once one successfully leaves his or her country of origin? From the liberal egalitarian discipline, this is a failure that elucidates one symptom of the broken international immigration regime.

Marxist Perspective

Analysis of the freedom of movement through a Marxist lens immediately leads to a fundamental discussion of exploitation and in particular citizenship exploitation. According to Philippe van Parijs, a group of individuals is exploited “if it contributes more [or conversely, less] labor value–i.e. socially necessary labor–to production than it appropriates–or, more generally, than it can (must) appropriate–through its income” (van Parijs 1992). This raises another, related ethical question regarding immigration as illegal immigrants often contribute far more than they receive. Illegal immigrants that continue to pay taxes are still generally unable to enjoy the benefits of the social system to which they contribute such as medical services, adequate housing, and education. They are also more likely to be ill-treated not only by way of being immigrants, but also because they are more likely to work in informal sectors. In light of immense contributions not only to the workforce but tax revenue as well, it hardly seems acceptable not to have offered the immigrant in question a reasonable avenue to citizenship in the first place. Clandestine immigration is both a cause and consequence of labor restrictions and global inequity, and by and large, extraterritorial immigrants can be considered an exploited group. In sum, there are polarizing world regimes that contribute to stark international inequalities beyond natural endowments and skill, and the free movement of people constitute the most politically feasible means to equalization.

Ultimately, any factor that contributes to the inequality of income and material wealth can be considered a form of exploitation and a world market economy consisting of entirely free movements of labor and capital would cease to be exploitative. This is a theoretical notion however, as countries are obviously equipped with markedly disparate natural and social resources for various reasons. Yet with an eye toward these inequalities, restrictions on the freedom of people and capital constitute a greater hindrance to the equilibrium distribution of income and material wealth than inequalities in productive endowments. While the liberal egalitarian perspective, like any liberal perspective, excludes distinctions such as race, sex, and class from its consideration, the Marxist perspective explicitly identifies this positive feedback loop as a source of significant exploitation. In describing the positive feedback phenomenon, van Parijs states concisely, “Those who get lesser wages because they are less productive are also less productive because of the poorer living conditions under which they have to live because of their lesser wages” (van Parijs 1992).

In order to gain a better understanding of global inequalities in income, one must analyze and understand the unequal distribution of goods between rich and poor states and the relationships between those states. This inequality is, according to the Marxist perspective, symptomatic of a system that is not sufficiently competitive. Van Parijs argues that if the monopolistic system is utilized by metropolitan firms more so than ones lying somewhere along the periphery, the true value of goods will be artificially altered. If capital were made perfectly free in the international economy, it is conceivable that discrepancies in capital-intensive and labor-intensive goods would not be monopolized by rich and poor countries, respectively, as they are today. Rather, we would expect to see an equalization process. Movement is not free, however; in many circumstances it is exploitatively restricted. And echoing again the issues of citizenship exploitation under the present system, we observe remarkably unequal values attributed to equally productive labor. Trade that is perfectly competitive will still generate an unequal exchange with disparate wages under this system. Eliminating artificial restrictions would ostensibly reflect more natural discrepancies in endowments.

A system typified by perfectly mobile labor would eliminate the inequalities in wage and labor productivity with roots in artificial citizenship exploitation. However this would also be possible by way of the direct transfer of funds from some countries to others, or perfectly mobile capital. In some ways this echoes the redistributive justice touted by liberal egalitarians: if a state is going to restrict individuals from entering, it must at least have the responsibility to compensate those individuals for the opportunities denied them. However, these notions differ in one distinct way. In the Marxist perspective, this money is not altruistic or explicitly compensatory as in the liberal egalitarian perspective. Rather, it exists as free-moving money in a perpetual search for profit. But is it sufficient to conclude that the free movement of capital would in effect compensate the world’s most destitute? Without a concerted effort I would argue that it would not, again in light of disparate endowments the world over and systemic artificialities restricting capital movement. Under this rubric, the international economic system is in need of a more deeply structural change than simply redistribution of wealth to developing countries. The eradication of disparate wages across the world would become reality as labor and/or capital flows in general were liberated from all artificial restriction. The end result of this process would effectively render restrictive border mechanisms obsolete.

Natural Law Perspective

Natural law is an important approach to law, and the theory of free movement as its premises claim impervious to ethical objection. Essentially natural law governs all other law according to universal principles that stem, by definition, from nature (Dummett 1992). Fundamentally, natural law comprises a theory with individual human beings as the primary subject of concern, similar to the liberal egalitarian perspective. Unlike Marxism, human beings are guaranteed universal rights by virtue of their humanity, not any arbitrary citizenship or lack thereof. According to many natural law theorists, the case can be made for the right of individuals to move freely between state borders.

Natural law fundamentally constitutes a range of universal principles by which institutions, governments, and individuals can be judged (Lock 2006). Natural law perspective’s main interest area is the individual: each individual should be granted inalienable rights by nature of being human. The natural law perspective outlines principles for what is just and unjust according to principles of nature and thus serves as a perfect baseline by which to judge the extraterritorial movement of individuals. Ann Dummett defines an alien as, “someone who, by an accident of birth, born in the wrong place or to the wrong parents, is not a citizen” (Dummett 1992). Similar forms of discrimination stemming from similarly inherited disparities including gender, race, class, ability, and sex are ethically dubious.

Under the current international system, many individuals acquire citizenship through exploitative mechanisms. If an immigrant is granted legal permission to reside in a certain country, her rights, at least at the beginning of her residency, are virtually nonexistent. Those wishing to change their citizenship cannot do so at will; they are subject to arbitrary mechanisms as designated by state officials. Aliens do not have a right to enter any state territory they choose according to international law. A fundamental contradiction exists because citizens of every state are guaranteed the right to emigrate. Logically it should follow that individuals also have a right to immigrate. If at least one country guaranteed such free movement the explicit codification of the converse of this rule would not be necessary. Of course, this is not the case. This constitutes a logical absurdity and is thus condemned by natural law as ardently as by liberal egalitarianism.

Interestingly, at many other points in history, freedom of movement was guaranteed. Contemporary legal practice has turned this paradigm on its head however, and immigrants must prove a condition sufficient enough to allow them entry. Individuals who find they must immigrate but cannot do so legally may find themselves in a difficult situation. If they immigrate illegally they may find themselves devoid of rights to health care, schooling, or social services available to legal immigrants and citizens. However, those who find themselves having provided the state sufficient reason to allow their legal entry run the risk of finding themselves in dirty, low-paid, and/or exploitative positions that native born citizens refuse to do. Additionally, legal immigrants may need to renew a temporary residence permit and be denied family reunification (Dummett 1992). Natural law, as a primarily human rights-focused school of thought, denounces these phenomena as ethically inadequate, as human beings ought to be free from discrimination, exploitation, and artificial inequities because of their inherent humanity.

Another interesting principle of natural law is offered by political and social theory expert Joseph H. Carens. He asserts that the strongest case can be made for poor immigrants migrating for economic reasons. Carens argues for an international redistributive justice system, in which limitations on freedom of movement are only ethically permissible under the standard of proportionality (Carens 1987). According to this proposition, it is acceptable to place restrictions on immigration solely in the event that large influxes of foreign born nationals flood the state, raising issues of national security and infringing on the rights of citizens. It should be noted here that several studies and observations suggest immigration restrictions are ineffective. The only promising method of limiting immigration is a decrease in labor market demands (Harris 2007). From a human rights perspective therefore, according to Ann Dummett, freedom of movement should be guaranteed so long as it does not disproportionately hinder the fundamental human rights of citizens. And accordingly, states cannot favor immigrants on the basis of certain desirable characteristics while excluding others and still claim to respect universal human rights.

Policy Considerations

A discussion of extraterritorial immigration to Europe necessitates a related discussion of its concomitant economic and policy issues. Unfortunately, ethics is not the only field guiding contemporary immigration policies. Economics and politics are subsumed in the practical – as opposed to theoretical – study of immigration policy creation. With a view towards the supranationalization of the European Union, certain economic and political considerations become especially important.

Which political atmospheres guide immigration policies in certain directions? And which are more politically feasible for states to adopt? Eyton Meyers, in his article, International Immigration Policy: A Theoretical and Comparative Analysis, sheds light on the mechanisms that control the creation of international immigration restrictions. According to Meyers, immigration policy is largely shaped by the current state of the economy and the prevailing ideology of the native population. His discussion of the effects that supranationalization has on policy creation is also particularly relevant to an analysis of the Schengen acquis. And economic considerations, as an analysis of the economic forces that mold public opinion and influence policy, complement this analysis (Meyers 1992).

The economic health of a nation is by far the most influential factor guiding extraterritorial immigration policy. Interestingly, the state of the economy seems to have more effect on the supply and demand of immigration than any other factor. Thus while immigration undoubtedly affects the economy by expanding the supply and makeup of labor, it is directly controlled by the actual demand of the economy. Unemployment has been found to directly control and limit influxes of immigrants when native workers feel threatened and insecure due to an influx of immigrants (Harris 2007). However, as it relates to actual legislation implemented by states, when the economy is prosperous, the general population is accepting, even encouraging, of immigrants, whereas in times of economic malaise, workers and employers alike prevent immigration (Meyers 1992). And while there is some lag between these phenomena, they do indeed directly affect one another. In times of economic recession, workers and employers alike pool their resources and political sway to restrict immigration, whereas in times of relative economic affluence, they, especially employers, will act in the opposite direction. Governments, to varying degrees, will garner votes by way of a reflection of these anti-immigrant aims, with a higher prevalence of extremism in especially bad times (Freedman 1995). A prime example of this is the effect of the 2008 economic crisis on European extremism, which saw a disturbing proliferation of anti-immigrant sentiment in general, and rightist parties with anti-immigrant platforms gained seats in parliamentary bodies in the Netherlands, Germany, France, and several other countries. Immigrants are disproportionately affected in these scenarios; after the economic recession hit the European Union immigrant unemployment in certain countries reached as high as 41% (Tejera 2011). Large-scale immigration, according to Meyers, also varies in its effect on policy creation depending on the racial and ethnic identities of immigrants.

Certain inherited characteristics including language, race, and cultural practices have a great effect on native ideology, and these differentiating factors affect the creation of immigration policy. Large influxes of immigrants with a different language, race, or cultural practices generally contributes to anti-immigrant ideology and the formation of more restrictive immigration policy (Jones 1992). Immigration from cultures virtually synonymous with the receiving countries, especially intraterritorial immigration within the unified Schengen Area, are generally welcome and have historically given rise to few restrictions on immigration. Indeed the general public typically sees this type of immigration as an asset to the economy, while condemning immigration from dissimilar origins as displacing native employment and damaging the share of domestic social services natives could receive. Professor Qingwen Xu however, conducted a study in 2007 which illustrated the opposite phenomenon. Rather counterintuitively, Xu concluded that immigration does not have a depressing effect on domestic social service systems as previously thought. Rather, legal immigrants contribute to the system as do citizens, yet are frequently not permitted to enjoy the same benefits (Xu 2007).

Some of the most interesting and indeed relevant phenomena today are the effects that regional integration, such as that of the European Union, has on immigration policy controls. Regional integration has two distinct effects on immigration policy. First, it liberalizes to a great degree the movement of individuals within the region. This is exemplified by the Schengen Agreement. The Schengen Agreement was indeed groundbreaking, and epitomizes the greatest display of supranational cooperation of any collection of states in the world to date. However while creating a borderless territory for citizens and legal residents within a selected territory, it effectively limits extraterritorial immigration from outside the territory in a comparatively exploitative manner. (Meyers 1992).

Case Studies: Spain

Spain has one of the most liberal immigration policies in Europe, an especially interesting phenomenon given Spain’s strategic position only a few miles from North Africa, from which it receives large numbers of immigrants. In direct contrast to most other Schengen signatory countries, Spain, upon implementing the Schengen Agreement, actually reacted with large-scale regularization schemes. Spain’s immigrant population more than quadrupled between the years 2000 and 2009, increasing from 1.5 million to 6.5 million foreign born residents. It is also notable that of the OECD countries, Spain receives the second largest share of immigrants after the United States. In light of Spain’s large immigrant population, it is perhaps “exceptional in Europe,” as migration expert Joaquin Arango suggests, because Spaniards still by and large view immigration as a necessary phenomenon, especially in light of an increasing native job acceptability standard (Arango 2011). What is perhaps most exceptional is that despite the integration of the Treaty of Amsterdam into Spanish immigration policy and the economic crash of 2008 and subsequent recession, Spain has not adopted a wholly communitarian approach to immigration policy as many of its European neighbors. According to Joanna Drodz, because immigrants have provided vital labor for the sustenance of economic growth since the 1980’s, a majority of Spaniards view immigrant labor as necessary, even if they view the influxes with skepticism. Also surprisingly, large historical influxes of immigrants has not incited anti-immigrant retaliation as they have in many other European countries (d’Ancona and Valles 2010).

It may come as a surprise that Spain had no actual immigration policy before 1985 (Calavita 2005). The reason for this is the dramatic shift that occurred in Spain in the 1980s. Before then, Spain had been known primarily as a country of emigration. However as the native Spanish population began raising their standards in terms of what jobs they found socially acceptable, and as the labor market demanded more low-skilled labor, Spain suddenly and unexpectedly became a destination country for immigration (Escribano 1996). Indeed Spain’s economy grew consistently from the 1990s to just before the economic crash of 2008. While the native population aged, several million new jobs were created with fewer and fewer working-age Spaniards to occupy them (Arango 2011).

In 1985 Spain initiated its first explicit body of law governing immigration. The Ley de Exranjería 7/1985, or Law of Foreigners, set up decidedly restrictive immigration controls for non EU nationals. These restrictions included a complex path to obtain just a temporary work permit and more restrictive visa requirements. EU nationals however, enjoyed similar privileges as the native Spanish population to live and reside in the country. It is not surprising that in spite of restrictions on immigrant rights, illegal immigration flourished. Additionally, though Spain was not officially a signatory country of the Schengen Agreement until 1991, and Schengen and the SEA were not implemented into Spanish national law until 1995, it was effectively acting as the EU’s southernmost fortress. It has been argued repeatedly that the Schengen Agreements of June 1985 directly led to the development of the Law on Foreigners, LO 7/1985 (Cornelius 2004).

What did Spain do to cope with the influx of illegal immigration and the flourishing of an informal economy? It implemented a wide scale regularization scheme granting 23,000 illegal immigrants legal status in 1986 and it is suspected that between fifty and seventy-five percent of illegal immigrants did not even apply. The regularization ostensibly stemmed from domestic concerns for cheap labor required by industries such as tourism, construction, and agriculture (Levinson 2005). The marked contrast between the implementation of LO 7/1985 and the subsequent Spanish regularization of 1986 elucidates the contrast between EU and domestic concerns.

LO 7/1985 was amended in 1991 and further visa requirements were enforced for several countries, some for the first time including Algeria, Morocco, and Tunisia. Mutual agreements for the gradual elimination of travel documents subsequently ended between Spain, Morocco, and Tunisia. The EU again played a decisive role in influencing Spanish immigration policy and Spain was required to strengthen its borders and restrictive policies toward the Maghreb. However, the past repeated itself and this restrictive role was followed by a second wide scale regularization scheme.

In this second regularization scheme the Spanish government granted work and residence permits to 118,321 previously illegal migrants. This was in direct response to the amendment of LO 7/1985 in 1991. Similarly, Decreto 155/1996 (Royal Decree concerning the rights and freedoms of foreigners in Spain) issued five-year work permits to undocumented workers who had their work permits shortened, restricted, or otherwise eliminated due to the amendment of LO 7/1985. (Ley orgánica 2001). This second regularization is particularly significant due to its timing in relation to the Schengen Agreement, which officially eliminated internal borders for Spain in 1995.

Such liberal regularization and integration measures continued throughout the 2000s, following the implementation of LO 8/2000. This new legal corpora resulted from the electoral victory of the Partido Popular, Spain’s conservative party. LO 8/2000 also followed the Treaty of Amsterdam which came into effect in 1999. The Treaty of Amsterdam subsumed all previous EU-wide common policy attempts into the Schengen acquis. Further, it updated the supranational EU bodies: the European Commission, the European Parliament, and the European Court of Justice. At this point internal borders were almost entirely eradicated and a restrictive, exclusionary wave descended upon Europe.

Indeed, 8/2000 was characterized by the granting of rights solely to legally residing immigrants and a justification of mass deportation. For the first time in Spain, illegal residence or work was seen as an adequate means for expulsion. This wasn’t entirely contrary to the goals of the Schengen acquis and the Partido Popular, consistent with the acquis, outlined a plan for intensified policing of Spain’s southernmost border and a comprehensive information system to combat illegal immigration.

Yet again, in direct contradiction to its previous restrictive law, Spain reacted by implementing a regularization scheme. This time 153,463 out of 247,598 applicants were given temporary residence permits, mainly for employees in the agriculture, domestic service, or construction sectors. Again in 2001 361,289 were granted work permits, the largest number of immigrants regularized to date (Consejo económico y social 2004).

Ultimately Spanish popular opinion on immigration has long been at odds with the European Union and its objectives. Nearly every EU-wide directive was followed in Spain by a mass regularization scheme or a general attempt to expand the rights of foreigners. Decidedly restrictive EU-wide immigration policy and the restrictive policies Spain adopted as a precursor to its acceptance into the Union directly led to massive increases in illegal immigration. To combat this issue Spain regularized hundreds of thousands of immigrants over the course of the 1990s and beyond, ostensibly undoing the changes made by the European Union. This was largely due to the fact that EU restrictive policies could not provide Spain the cheap labor its labor markets so desperately needed. While most EU immigration directives carried out in Spain sought, and still seek, to reduce immigrant rights, domestic policy seeks the exact opposite. The result has been a complex, labyrinthine corpora of law and rhetoric that leaves immigrants confused, yet no less willing to immigrate to Spain, legally or otherwise.

The goals of the Schengen acquis, as manifested in Spanish immigration policy, failed to achieve its intended goals. A common policy on immigration was never reached and forcing Spain to comply with restrictive policies only prompted it to regularize hundreds of thousands of immigrants to combat a problem the acquis created.

The Netherlands

The Netherlands is a fascinating country to study given its gradual and consistent deliberalization since the creation of its first immigration laws. The Netherlands is also a significant country of interest in analyzing EU immigration because it was among the first signatory countries of Schengen along with Germany, France, Belgium, and Luxembourg. And indeed, the Schengen Agreement and subsequent Schengen acquis have shaped Dutch immigration policy since the time of their creation. Rather than assuming a contradictory position against the Schengen Acquis as Spain has done, the Netherlands has worked rather seamlessly with the acquis and its goals and consequently implemented relevant policies into its domestic legal corpus. This has culminated in a stricter immigration policy than ever before.

Until the first World War, the Netherlands had few mechanisms for controlling extraterritorial immigration. The Netherlands' immigration policy focused primarily on five factors: family reunification and family formation; asylum seekers; illegal immigration; labor migration; and immigration of Dutch nationals from the Antilles and Aruba. Several decidedly liberal policies formed the basis of this legal corpus. During the 1990's family reunification was an especially prominent aspect of Dutch immigration as asylum migrants with a residence permit were granted the right to bring their families to the Netherlands (Meyers 2004). This policy in particular ideologically and pragmatically respects the inverse of the right to leave one's country. Granting family reunification for asylum migrants constitutes respect for a fundamental human right seldom recognized formally. A more modern interpretation of this law lives in the European Union law, founded in the European Convention on Human Rights and the European Commission Treaty, which permits Dutch and foreign nationals the right to bring non-Dutch partners (including those in homosexual relationships) and children to the Netherlands. This stems from the fact that anyone legally residing in the European Union has the explicit right to family life (Council of Europe 1950).

Throughout the 1980's and 1990's Dutch immigration policy became increasingly restrictive. After 1985 the Dutch government, in an attempt to control the recent influx of migrant marriage partners, instituted minimum income and housing requirements. Ostensibly part of the onset of a more nationalistic ideology, these minimum requirements did not apply to Dutch citizens. In 1993 increased migration compelled Dutch officials to require non-EU nationals to have lived a minimum of three years in the country should they wish to form a family. Similarly family reunification would be possible solely in the first three years of residence. Such marriages were subject to investigation to ensure against fraudulence.

The pattern here is quite simple and ties into economics in a fairly straightforward way: as a country becomes more desirable economically and politically, its immigration policies become more restrictive. However this discussion does not include migration for asylum seekers or political refugees. In 2001 the New Aliens Act came into effect which stipulated applicants must provide a minimum means for each and every family member. Curiously this restriction included Dutch citizens. Between June and July of 2002 laws came into effect stipulating children in the context of family reunification be twelve years of age or younger should they wish to join their parents in the Netherlands. Similarly a minimum age of twenty-one was established in order for partners to be reunited and those partners were required to earn at least 130% of the minimum wage (Meyers 2004).

While illegal immigration is adjudicated under a different legal corpus and belongs in a separate discussion, for comparison's sake it is curious to note that in 1975 the Dutch government initiated a mass regularization scheme for immigrants who had lived and worked in the country for just one year. This system, decidedly liberal in formal ideology, was tweaked between the mid-1990's to 1998. By then illegal migrants were required to not only prove that they had resided in the country but also that they had held a job and paid taxes for six consecutive years.

Another fundamental aspect underlying the creation of restrictive immigration mechanisms was the establishment of the borderless Schengen area in 1995. Unsurprisingly the elimination of borders within the European Schengen area seemed to exacerbate restrictive Dutch immigration policies. There were widespread, largely warranted fears that the elimination of these borders would invite massive waves of migration to Europe. If an immigrant could just make it to one country within the Schengen Area, he could move and work freely anywhere within the larger external boundary. A commission was created in 1989 to mitigate these phenomena and in 1991, iy brought forth several suggestions to heighten security and limit extraterritorial migration. Some of the proposals included: the systematization of social security regulations, legislation to exclude illegal immigrants from the Dutch equivalent of the social security system, heightening domestic border controls, and increasing the number of alien and military police. As a direct result of the Commission's suggestions the Mobile Surveillance on Aliens (MMA) was created to carry out random checks for illegal immigration at major Dutch destinations such as the Schipol Airport and to increase camera surveillance along the Dutch borders. Additionally 1,200 employees were hired (in addition to the existing 1,000) in order to perform systematic checks on anyone entering the Netherlands (van der Woude 2012).

Soon after, in 1991, illegal immigrants were prevented from entering the formal workforce by way of a restriction that required workers to seek approval by the police should they wish to obtain a "social-fiscal number," the Dutch equivalent of a social security number. In 1994 smuggling immigrants became a punishable crime, and it became a duty of employers to identify new employees and retain a copy of their legal identification documents. Further systematization ensued when the Municipal Base Administration Personnel Data (GBA) was linked to the Aliens Administration System (VAS). 

1994 was a particularly important year in the context of the interplay between Dutch law and the Schengen Agreement. The Vreemdelingenwet (the 1994 Aliens Act), the Vreemdelingenbesluit (the Aliens Decree), the Voorschrift Vreemdelingen (the Aliens Regulation), and the Vreemdelingencirculaire (the 1994 Ministerial Circular concerning Aliens) were all passed in the same year in response to the Schengen Implementing Agreement. In the following year the Grensbewakingscirculaire, or Ministerial Circular concerning Border Controls, was passed. These acts all presupposed the official eradication of the Schengen area’s internal borders.

The Vreemdelingencirculaire specifically oversees the processes associated with asylum. Grensbekwakingscirculaire oversees the outermost territorial borders of the Netherlands and specifically the crossing of these borders, the issuing of visas, and the Schengen Information System (Staples 2000). These two bodies of policy bring all relevant aspects of the Schengen acquis together into Dutch law.

Like Spain, the Netherlands has been compelled to enforce various strict measures to combat the illegal immigration caused in large part by Schengen’s strict nature.  One of these such measures has been the routine identity checks at international borders and entry points such as international trains and Schiphol Airport. The Koninklijke Marechaussee, or Dutch Border Police, perform routine checks at these locations as dictated by Article 19(1) Vreemdelingenwet. This act even underwent judicial scrutiny by domestic judicial authorities in order to adjudicate whether or not they were in compliance with the Schengen Agreements (Migrantenrecht 1996).

The task of adopting common rules for the examination of applications for visa and the adaptation of these rules to new situations and circumstances was assigned to the Schengen Executive Committee. In 1993, this Executive Committee adopted a Common Instruction to the Diplomatic and Consular Posts of the Contracting Parties to the Schengen Agreements. In this Common Instruction the Executive Committee defines the various kinds of visa, establishes the procedure for visa applications and gives guidelines on cooperation between the consular posts. According to the Common Visa Instruction, applications are to be lodged with the representative of the Schengen Contracting Party in the country of nationality, in person.


Denmark is especially interesting because of its exceptionalism regarding the Schengen Acquis. Denmark enjoys an extremely privileged position in the realm of EU politics precisely because it is exempt from a great portions of the acquis. As was the case with Spain, immigration to Denmark was not of particular significance until the 1980s. Until the 1950s unemployment was quite high and Denmark was primarily a country of emigration. Even today it has one of the smallest immigrant populations in Western Europe (Denmark Country Report 2007). In spite of this, it has experienced a shocking rise in support for its most popular right wing party, the Danish People’s Party. However like the Dutch case, Danish immigration has been historically dominated by family reunification and asylum seekers, not by labor as in the Spanish example  (Liebig 2001).

Immigration only began to notably pick up at the end of the 1960s when there was an increase in labor market demand. Perhaps due to its burgeoning education system, the Danish population began increasing its job acceptability standards in the 60s and it became increasingly difficult to find natives willing to work low skilled jobs. Even during this period migration was primarily composed of family reunification (Denmark Country Report 2007).

Throughout the 1970s Denmark, along with many other European countries, accepted migrants willing to work the low skilled positions that so desperately needed filling. These labor migrants were expected to leave after the market restructured itself. However, as was also the case in most other “temporary work program” countries such as Germany, many migrants stayed. The visibility and effects felt via this phenomenon were exacerbated by Denmark’s history of family reunification. Indeed families reunited, settled and increased the proportion of immigrants, albeit less than in other countries with similar labor migrant histories (Denmark Country Report 2001.)

A ban on non-labor market oriented immigration from countries outside of the European Economic Area was introduced in Denmark in 1973, as was the case for most European countries at the time. This marked the point when Denmark began realizing the longer-term effects of its previous labor migration. Until the 1980s the immigrant population hovered around 3% and Danish immigration policy reflected this low level, which notably came primarily from neighboring OECD countries, until the 1980s (Liebig 2001).

It may come as a surprise, considering recent immigration policy trends, that the first immigration policy reform in 1983 actually granted more rights to immigrants. Among other changes the 1983 Aliens Act granted spouses, children, and parents above the age of 60, respectively, family reunification (Bauer, Larsen and Matthiessen 2004.) The 1983 change also improved the legal status of refugees. They did little in the way of labor migration however, and the 1973 restriction remained intact. These changes are interesting in light of the Schengen Agreements of 1985, as it would be just a matter of years before Denmark would begin restricting immigration to the point of its consideration as the most conservative country in Europe. Denmark, somewhat of a late bloomer in this regard, would only sign the relevant Schengen Agreements in 1996 and its borders would not be eliminated until 2001.

1992 proved significant because it serves as the starting point for a more conservative Danish immigration policy. Families were denied the right of reunification unless immigrants could prove they had resided in the country for the past five years. This policy change coincided, unsurprisingly, with the first peaks in asylum applications and unemployment. The Danish Aliens Act was amended in 1992 and again, this time with far more restrictions, in 1999, after the signing of the Schengen acquis, which, as mentioned, supranationalized the EU with relevant political institutions and enforced Schengen policies.

When Denmark was integrated into the Schengen regime, it eliminated government financial support of migrant organizations that actively defended the rights of migrants. In the same nativist spirit the country reduced cash aid benefits for immigrants in 1999. This first Act on Integration required immigrants to enroll in an integration program for three years (Andersson and Dorte 1994). Obviously this attracted much criticism from the international community and consequently Denmark once again equalized cash benefits for all its citizens, native or otherwise. However, ias happened in Spain, the differentiation was reinstated one year following the implementation of the Schengen acquis.

Interestingly, clandestine immigration is seldom studied in Denmark and as such there are few estimates of the actual number of illegal immigrants living in Denmark. However a study by the University of Roskilde estimated the total working hours of illegal immigrants to be 20% of all working hours for immigrant-owned businesses (Rezaei 2007). As Denmark continues to stiffen its immigration policies, it can only be expected that illegal immigration will rise. It is because of restrictive policies for immigrants that a “parallel society” has proliferated in which migrant communities both formal and informal sustain each other. Thus, although Denmark can be considered a highly regulated country, thousands of immigrants exist on the fringe, and this trend is increasing (Denmark Country Report 2001).

One factor we must take into consideration in discussing Danish immigration policy and the Schengen acquis is Danish exceptionalism within the EU. Denmark has repeatedly opted-out of binding acquis policy, particularly in the department of Justice and Home Affairs (Peers and Rogers 2006). Denmark has opted-out of common asylum procedures, border management, interviews at consulates, social security rules, family reunification, long term residence, the Visa Information System and the European Refugee Fund, among other EU programs. Further, in many cases Denmark is automatically excluded due to its original apprehensive ascension into the Union and conditions for entry. In certain cases Denmark retains the right to opt-in to certain laws and procedures under the guise of international law, and it has done so in the past. For instance Denmark decided to implement into its domestic law rules covering fees for visa applications and the decision to implement the Visa Information System, which streamlines Schengen’s policing efforts and utilizes biometrics to ‘hyperindividualize’ immigrants and strengthen policed borders (Feldman 2012). Denmark was obviously extremely apprehensive about joining the area of free movement and continues to be one of the most anti-EU countries in general. The opt-out ostensibly serves as a ‘sovereignty shield,’ protecting a wary Denmark from making policy decisions against its will (Adler-Nissen and Gammeltoft-Hansen 2010). This is interesting in light of its immigration policies which have gradually become more and more restrictive over the years. Thus it seems as if Denmark is inadvertently abiding by at least some restrictive Schengen goals, while systematically opting-out of being bound by its rules. This also has deeper implications for Denmark’s future, as it is even more subject to the whim of changing political parties, and is not even required to appear as if it is abiding by EU law.


While the principles and ideologies behind the Schengen acquis fundamentally reflect a restrictive approach to supranationalization, the results that I found were far more nuanced than that. I would argue that it is not the acquis itself, which represents exclusive communitarian ideology, that is unethical. Rather, it is the actual actions of the SIS and external border policing mechanisms whose express goal is to keep immigrants out. The acquis comprises the sort of restrictions condemned by liberal egalitarianism, Marxism, and natural law from an ethical perspective; it attempts, at great personal expense, to keep extraterritorial immigrants out of the Schengen Area while safeguarding the economic and cultural wealth signatory countries have acquired over many years. However the acquis has largely failed to achieve its original goals. Schengen signatory countries are far from unified in policy and even certain countries, most notably Denmark, reject, if only superficially, the idea of shared, unrestricted borders.

After each new piece of Schengen legislation, Spain has apprehensively cooperated by restricting immigration. However each new restriction has been accompanied by a mass naturalization scheme and general policies that favor immigrants and their integration into Spanish society. When the Partido Popular, Spain’s most prominent right-wing party, came into power, it moved to support restrictive acquis principles. However after the party was defeated, further naturalization schemes and amicable immigration policies commenced as before. The acquis thus appears to serve as scapegoat for domestic politics. Domestic political waves determine whether or not Spain will abide by the acquis. In this case labor market demands, a rapidly aging population, and generally positive attitudes towards immigrants continue to affect policy as before the acquis was implemented. While Spaniards may now enjoy the privilege of visa-free travel within Europe, their ascension into the acquis has had few negative repercussions for extraterritorial immigrants.

Domestic attitudes towards immigration in the Netherlands have become consistently less accepting over the past few decades. It is a prime example of the conservative shift many European countries are experiencing. As Dutch attitudes toward immigrants have become harsher, Dutch immigration policy has followed suit. This, coupled with a lack of integration mechanisms has left many immigrants on the fringe of Dutch society. Today, Dutch immigration controls are extreme and arguably exploitative; however, is this the work of Schengen or domestic ideologies? Dutch immigration policy has become increasingly strict since the 1990’s and is mostly comprised of dissimilar immigration. It seems somewhat natural then that Dutch society, without expressly visible labor market demands like Spain, would view immigration with skepticism and even repulsion. Thus while the Netherlands appears to have left a policy trail favorable to the Schengen acquis, it is far more likely that it simply followed its own domestic trajectory.

Similarly, Denmark has historically been a country that views immigration unfavorably. It is true that Denmark, like Spain and the Netherlands, has fashioned a rich culture and political and economic systems that are worth safeguarding. However Denmark has communitarized its domestic system more than any other European country. Danish exceptionalism with regards to the acquis, then, is significant. In an effort to protect national sovereignty, Denmark’s leadership has apprehensively joined the area of free movement and has opted-out of several key acquis decisions. In contrast to Spain, Denmark has ‘complied’ with the most restrictive aspects of common EU immigration policy, though in reality it is not explicitly bound to do so. Denmark seems the country most fervent in its desire to maintain sovereignty and its own, differentiated immigration policy. While also one of the most anti-EU countries in Europe, it is inadvertently abiding by the acquis, and thus EU goals that keep immigrants out. This is the opposite end of the spectrum as Spain, which readily signed the Schengen Agreement and the subsequent acquis, yet continued its own, more open border regime. This comparison is particularly enlightening and proves that supranationalization cannot readily alter domestic workings. The factors that Meyers asserts are most important: the state of the economy, ethnic makeup of immigrants, and domestic ideologies continue to be determinative in light of supranational EU bodies of law.

The information and policing apparatuses that work to keep immigrants out of the area of free movement are what I would argue make it unethical. The SIS facilitates exchanges of information between customs, police authorities, and national borders in order to streamline the intergovernmental exchange of information and prevent illegal immigration. The SIS and SIS II are utilized by Frontex, the EU’s primary border policing mechanism. These systems hold information as well as biometric data on illegal immigrants and immigrants who may have committed a crime. Information is given by national governments and is received by the Central System to all Schengen States. Frontex uses this information to hyperindividualize immigrants and prevent recidivism of clandestine immigration (Schengen Information System 2013). Never before has a body of states shared such a cooperative and complex information system to prevent illegal immigration. From a political perspective this is incredible. However this is the aspect of Schengen that is difficult to justify ethically and continues to negatively affect the lives of non-European immigrants.

While the European Union and the Schengen acquis are impressive outcomes of supranationalization, the effects that they have had on unifying disparate immigration policies are far less so. The communitarian nature of the law undoubtedly has benefits for those living in the European Union. While the idea of communitarianism is in direct contradiction to the ethical theories of liberal egalitarianism, Marxism, and natural law, domestic EU policy creation has not been so unified as many would have liked. EU domestic factors still reign supreme. And while most states will at least superficially abide by the acquis, state sovereignty is still too sacred for the acquis to affect domestic law in a significant way. Rather, right-leaning parties pin their restrictive immigration decisions to the acquis and left-leaning parties continue to appear as if they are following acquis principles but carry on with business as usual.

This is not, however, inherently good or bad news to the immigrant. The European Union as a whole does not expressly favor or reject immigration. Immigration policy is influenced by public opinion, labor market demands, the general state of the economy, and the political party in power, among other factors. Contrary to what was expected from the Schengen Agreement and its acquis, these factors still largely shape immigration policy in the EU. No great ethical claim can be made to the actual workings of the acquis as its results have been incredibly erratic.


Adam Luedtke, “One Market, 25 Stats, 20 Million Outsiders? European Union Immigration Policy,” paper prepared for the 9th Annual Graduate Student Conference (Georgetown University, Washington DC, February 18-19, 2005).

Ángeles M. Cea d’Ancona and Miguel Valles, Evolución del racismo y la xenophobia en España [Informe 2010] (Madrid: Ministerio de Trabajo e Inmigración, 2010). 1-3. Izquierdo Escribano, A.: La inmigración inesperada (Madrid: Trotta, 1996).

Ann Dummett, “The transnational migration of people seen from within a natural law tradition,” in Free Movement: Ethical issues in the transnational migration of people and of money, ed. Brian Barry and Robert E. Goodin. (University Park: The Pennsylvania State University Press, 1992), 169-172.

Amanda Levinson, “The Regularisation of Unauthorized Migrants: Literature Survey and Country Case Studies,” Centre on Migration, Policy and Society, University of Oxford (2005):

Arcadio Diaz Tejera, “Migration in Europe and the Economic Crisis - Facts and Policies,” (Presented at Parliamentary Assembly of the Council of Europe, Stransbourg, 2011).

Arrondissementsrechtbank, Gravenhage, zittingsplaats Nieuwersluis, December 15, 1995, Migrantenrecht 1996, 74.

Benedict Anderson, Imagined Communities: New Edition (London: Verso, 2006), 6.

Consejo Económico y Social. 2004. Informe Sobre la Inmigración y el Mercado del Trabajo en España. [online]. Madrid: Consejo Económico y Social.

Council of Europe. Convention for the Protection of Human Rights and Fundamental Freedoms as amended by Protocols No. 11 and No. 14. 4.XI.1950. Rome 1950.

Dietmar Herz, “European Immigration and Asylum Policy: Scope and Limits of Intergovernmental Europeanization,” paper presented at the 8th EUSA Conference (Nashville, TN, March 27-29, 2003).

Joanna Drozdz, "Spanish leadership in developing a 'common' European immigration policy: Intergovernmentalist supranationalization approach" (2011). Theses and Dissertations. Paper 92. 3-38.

Eytan Meyers, International Immigration Policy: A Theoretical and Comparative Analysis (New York and Hampshire, England: Palgrave Macmillan, 2004), 94-202.

F.P. Lock, “Edmund Burke, Volume II: 1784-1797: 1784-1797 (Oxford: Oxford University Press, 2006), 320.

Gary Freedman, "Modes of Immigration Politics in Liberal Democratic States" International Migration Review. no. 4 (1995): 881-902.

Gregory Feldman, The Migration Apparatus (Stanford: Stanford University Press, 2012) 148-149.

Helen Staples, “Adjudicating the Schengen Agreement in the Netherlands,” European Journal of Migration and Law 2 (2000): 53-60.

Joaquín Arango. “Exception in Europe? Spain’s Experience with Immigration and Integration” (Paper presented at the seventh plenary meeting of the Transatlantic Council on Migration, an initiative of the Migration Policy Institute, Berlin, Germany, November, 2011) 1.

John E. Roemer, A General Theory of Exploitation and Class (Cambridge, Massachusetts: Harvard University Press, 1982), Part III.

Joseph H. Carens, “Migration and morality: A liberal egalitarian perspective,” in Free Movement: Ethical issues in the transnational migration of people and money, ed. Brian Barry and Robert E. Goodwin. (University Park: The Pennsylvania State University Press, 1992), 9-95.

Kitty Calavita, Immigrants at the Margins: Law, Race, and Exclusion in South Europe (New York: Cambridge University Press, 2005), 278.

M.A. Jones. American Immigration. 2nd edition (Chicago: University of Chicago Press, 1992.)

Dr. Maartje van der Woude LLM, “Mobile Surveillence Operations at the Dutch Border Or Restricting the Right to Free Movement for Dangerous Others?” (presented at the Crimmigration Control Conferennce: Social Control and Justice, Crimmigration in an age of fear, Coïmbra, the Netherlands, October 11-12, 2012).

Marianne Andersson and Skot-Hansen Dorte, Det lokale bibliotek: afvikling eller udvikling, (København: Danmarks Biblioteksskole, 1994), 6.

Michael J. Sandel, Liberalism and the Limits of Justice (Cambridge: Cambridge University Press, 1982). Ch. 2.

Nigel Harris, “The economics and politics of the free movement of people,” in Migration Without Borders: An Investigation into the Free Movement of People, ed. Antoine Pécoud and Paul de Guchteneire. (New York and Paris: UNESCO Publishing and Berghahn Books, 2007), 34-37.

"Official Journal of the European Communities – The Schengen Acquis," 1999.

Paper prepared by Roskilde University, “Denmark Country Report,” (EU Sixth Framework Programme, 2007), 4-28.

Philippe Van Parijs, “Commentary: Citizenship exploitation, unequal exchange and the breakdown of popular sovereignty,” in Free Movement: Ethical issues in the transnational migration of people and of money, ed. Brian Barry and Robert E. Goodin. (University Park: The Pennsylvania State University Press, 1992), 157-160.

Qingwen Xu. "Globalization, Immigration and the Welfare State: A Cross-National Comparison." (PhD Diss., Boston College Graduate School of Social Work, 2007) Journal of Sociology & Social Welfare XXXIV.2 2007: 87-106.

Rebecca Adler-Nissen and Thomas Gammeltoft-Hansen, "Straitjacket or Sovereignty Shield? The Danish Opt-Out on Justice and Home Affairs and Prospects after the Treaty of Lisbon." Danish Foreign Policy Yearbook (2010):137-161.

Shahamak Rezaei, "Breaking out: The Dynamics of Immigrant Owned Businesses," Journal Of Social Sciences, 3, no. 2 (2007): 94-105.

“Schengen Information System” (SIS), European Commission Home Affairs. Last modified August 14, 2013. Accessed November 31, 2013.

“Schengen Visa Policy,” last modified 2013. Accessed December 9, 2013.

Ed. Steve Peers and Nicola Rogers, EU Immigration and Asylum Law: Text and Commentary (Leiden, Brill Academic Publishers, Martinus Nijhoff Publishers and VSP, 2006), 99-261.

Thomas Liebig, “The Labour Market Integration of Immigrants in Denmark,” OECD Social, Employment and Migration Working Papers 50 (2001) 13.

UN General Assembly, Universal Declaration of Human Rights, 10 December 1948, 217 A (III), available at: (Sept. 30.)

Vigente hasta el 1 de agosto de 2001, fecha de entrada en vigor del Real Decreto 864/2001, de 20 de julio, por el que se aprueba el Reglamento de ejecución de la Ley Orgánica 4/2000, de 11 de enero, sobre derechos y libertades de los extranjeros en España y su integración social reformada por Ley Orgánica 8/2000, de 22 de diciembre. (BOE. núm. 174, de 21 de julio de 2001).

Wayne A. Cornelius, “Spain: The Uneasy Transition from Labor Exporter to Labor Importer, in Controlling Immigration: A Global Perspective, ed. Wayne A. Cornelius (Stanford: Stanford University Press, 2004), ch 10.