SIRIUS Project - Findings: Legal barriers and enablers in Europe: a comparison


Migrants, refugees and asylum applicants (MRAAs) occupy a central position in public and political debates – needless to emphasize that the “migration issue” was the object of the headlines of all SIRIUS countries’ media at least once a fortnight, if not more frequently, in the past five years and much of the political tensions at the EU level have been stemming from this topic. MRAAs represent an asset for European ageing societies and labour demanding economies and they have become central also in the functioning of contemporary European societies, as without their contribution, for example in the domestic work and in the care services, social structures would have been very different (Ambrosini, 2013). Yet, when we focus on their legal status we realise how their centrality is at odds with their peripheral, and often precarious, position in terms of substantial rights and entitlements.

The comparative analysis of their right to be legally recognised a status (and subsequently a permit to stay) in SIRIUS countries on the one hand, and to have a number of other rights stemming from their status on the other, demonstrates the legal marginalization of MRAAs in European jurisdictions, despite narratives of inclusiveness. Interestingly, scholars describe this phenomenon as “production of legal peripheries or places in which law as discursively represented and law lived are fundamentally at odds” (Chouinard, 2001:187). Similarly to spatial and geographical peripheries, legal ones may have a detrimental effect on the well-being of both people populating, physically and metaphorically, the peripheries and those populating the “centres”. Analysing how the frontiers between centres and peripheries are being built and consolidated is one of the foci of the SIRIUS research, to point out possible strategies to empower MRAAs and to advance those rights aiming at social inclusion and participation in the same spaces of life as nationals do.

Four considerations stem from the comparative analysis of legal barriers and enables in SIRIUS countries. The first, already known but cutting, finding concerning the status quo of MRAAs related legislation and of their rights and entitlements in the policy-domain of labour in SIRIUS jurisdictions is the deep unevenness existing among countries. On the one hand, this is obvious and legitimate: there is no proper Europeanization of asylum policy and law, and immigration and asylum remain one of those domains in which states are reluctant to devolve their authority to supranational jurisdictions. Despite the numerous limitations to national sovereignty brought in by EU membership, the crucial state prerogative of modern, post-Westphalian, statehood, that is the decision about who should be admitted in the state territory and with which entitlements, still holds when non-EU nationals and asylum seekers are at stake. More specifically, the EU fundamental principle of non-discrimination in the labour markets controverts the reality of MRAAs because of both their differentiated legal statuses (as not all legal statuses give access to the same rights) and the different approaches that countries adopt concerning each migrant status. On the other hand, this lack of homogeneity among countries makes it difficult for people, both foreign workers and employers, to understand who has the right to do what, when, how and where in Europe. Moreover, legal uncertainty favours secondary movements, i.e. MRAAs moving from one host country to another in search for better life and working conditions (Moret, Baglioni and Efionayi 2006), which is one of the phenomena the Dublin Convention in 1990 and the Dublin Regulations II and III aim to avoid. In turn, this makes the overall migration management more complex and difficult and it can provide arguments for political entrepreneurs willing to capitalise on anti-migration attitudes. In sum, the lack of homogeneity among EU member states about the rights associated to specific categories of migrants constitutes a barrier for MRAAs integration in labour markets and societies, even though sometimes it may create comparative advantages for determined people or categories of people in given situations.

The second observation pertains the complexity of the legal frameworks. In all SIRIUS countries, the legal framework on migration and asylum is extremely difficult to navigate. This is mainly the result of a complex and rapidly changing legislation and of an institutional landscape scattered in a multiplicity of actors at different levels of government (from supranational to local). Instead of reducing complexity, recent measures undertaken in several SIRIUS countries have privileged celerity at the detriment of rights enforcement. And legal statuses do not equalise in terms of rights and benefits, so that being recognised as refugee makes a difference in terms of general fundamental rights (we have examined the right to family reunification) and in terms of both accessing the labour market and working as nationals do. Complexity is definitely not an enabler.

The third observation refers to the narrowing of the access to both international protection and legal entry for working reasons in SIRIUS countries. Erecting physical and legal barriers to foreigners’ entry is coupled with current discourses on migration which tend to consider “protection seekers”, “economic migrants” and “illegal migrants” as the same type of subjects. Relying on these narratives, which question, for example, the sincerity of asylum claims, restrictive asylum policies are enacted. Moreover, this restrictive trend is further exacerbated in the field of the economic-related migration, where the state power to select and control who can entry and stay is exercised even more firmly, more to favour a supposedly anti-migration public opinion, than to respond to the needs of the economies. Again, we are talking about barriers.

Fourthly, despite the differences among countries, if we compare legal statuses across types of migrants, in all SIRIUS countries we can see the creation of a hierarchy in terms of access to rights and therefore in terms of capacity and opportunity of integration. Refugees and, to a smaller extent, beneficiaries of subsidiary protection and long-term economic migrants are at the top of the hierarchy, endowed with the broader and stronger sets of rights, including those related to accessing the labour market, workers’ rights and benefits. In other words, refugees, beneficiaries of subsidiary protection and long-term economic migrants are those that go closer to nationals concerning fundamental rights (except political rights that fall beyond the field of analysis of SIRIUS research) and integration into labour markets. Moreover, the legal status may allow refugees, beneficiaries of subsidiary protection and long-term economic migrants to benefit from further important opportunities of integration (language courses, vocational training) that are neglected to other types of migrants, strengthening their chances to join the labour market. This means that legal statuses play a crucial role in enabling people to become full members of the host societies and to contribute to the overall well-being of those societies through, among others, a full participation into national labour markets. At the bottom of the hierarchy we find irregular migrants, and just above them, asylum seekers, both categories of migrants with the most restrictive access to rights and entitlements allowing them entering an integration path.

When discussing the enabling potency of specific legal statuses, and the hierarchy legal statuses create, we should bear in mind the size of the population each status apply to. For example, except in Denmark and in Switzerland, just a minority of people applying for protection are recognised a status conferring access to a broad set of rights, including those connected to labour market participation, and even a smaller number is recognised the Geneva convention status (asylum and subsidiary protection). Widening the access to these statuses or enlarging rights and benefits connected with other statuses would multiply the enabling effect of a legal status easing integration of foreign workers. It would also avoid the creation of a migrant winner-looser divide, which would be at odds with any human rights, and solidarity based understanding of what a modern society should be.

If you want to know more about comparative report for the integration of migrants, refugees and asylum applicants into European labour markets, please have a look here at the Comparative Report Chapter in our WP2 Report (pp. 18-56).

Authors of the comparative report are Veronica Federico and Nicola Maggini – University of Florence