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«A thesis submitted to the Department of Political Science and International Studies of the University of Birmingham for the degree of Doctor of ...»

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119 See footnote 38 above 120 http://ec.europa.eu/prelex/detail_dossier_real.cfm?CL=en&DosId=164059, accessed on 29.04.2009 121 Christina Boswell, European Migration Policies in Flux – Changing Patterns of Inclusion and Exclusion (Oxford: Blackwell, 2003), p. 26 122 For an academic study that makes the same point see Elspeth Guild, „EU Policy on Labour Migration – a first Look at the Commission‟s Blue Card Initiative‟, CEPS Policy Brief, num. 145, November 2007, p. 1 159 The second tool articulated in the Commission discourse consists of measures that simplify and unify the issuance of documents, such as residence and work permits, by the member states. It is exemplified by amended rules on the uniform format for residence permits of TCNs123 and the proposal for a single application procedure for work and residence permits for TCNs on the territory of a member state.124 The Council adopted the former in April 2008 125 and the latter at the time of writing is still being discussed in the Council of Ministers after the Commission has given its position on the amendments made.126 The third tool concerns the convergence of the policies of the member states on legal migration issues. An illustration of this approach is the Communication on the open method of co-ordination in this field 127 and the common agenda for integration of TCNs in the EU.128 The European Parliament passed the first of these proposals with a Resolution in June 2003129 and the second one, in July 2006.130 The Commission discourse portrays the effect of these measures as helping to facilitate “a gradual and smooth move from national to Community rules … [by] giving a common legal frame to Member States and … determin[ing] common definitions, criteria and procedures regarding the conditions of entry and residence of third-country nationals …”131 For example, the push towards more equal treatment of TCN and EU employees (an issue core to the better integration of TCNs) started in 1994 with the Commission White 123 European Commission, Proposal for a Council Regulation Amending Regulation (EC) 1030/2002 Laying Down a Uniform Format for Residence Permits for Third-Country Nationals, COM (2003) 558 final, 24.09.2003 124 European Commission, Proposal for a Council Directive on a Single Application Procedure for a Single Permit for Third-Country Nationals to Reside and Work in the Territory of a Member State and on a Common Set of Rights for Third-Country Workers Legally Residing in a Member State, COM (2007) 638 final, 23.10.2007 125 http://ec.europa.eu/prelex/detail_dossier_real.cfm?CL=en&DosId=185533, accessed on 12.01.2009 126 http://ec.europa.eu/prelex/detail_dossier_real.cfm?CL=en&DosId=196321, accessed on 12.01.2009 127 European Commission, On an Open Method of Coordination for Community Immigration Policy, COM (2001) 387 final, 11.07.2001 128 European Commission, A Common Agenda for Integration Framework for the Integration of ThirdCountry Nationals in the European Union, COM (2005) 389 final, 01.09.2005 129 http://ec.europa.eu/prelex/detail_dossier_real.cfm?CL=en&DosId=166319, accessed on 02.05.2009 130 http://ec.europa.eu/prelex/detail_dossier_real.cfm?CL=en&DosId=193253, accessed on 02.05.2009 131 Antonio Vitorino, Asylum is a Right, Economic Migration is an Opportunity, SPEECH/03/71, 11.02.2003, p. 3 160 Paper on Social Policy. 132 This discourse contributes in important ways to the establishment of functional external borders of the Union. The measures it envisages not only (as discussed in the section on de-bordering) lead to increasing unification of the member states‟ migration regimes but also establish the EU as an entity on this matter, which has its own distinctive system in comparison to the rest of the world.

Importantly, according to the Commission: “This common legal frame is a starting point.”133 This is crucial because it points to the possibility that what has happened so far is not the “end of the road”, so to speak, at least not from the perspective of the Commission.

One of the reasons for this is that in this policy area so far there has been very little transfer of prerogatives to the EU-level in respect to TCNs. This is contrary to developments in other areas such as border controls. The chapter analysing Commission discourse shows that on border controls there have been important developments towards establishing EUlevel systems for exchange of information on visa, etc. On free movement of TCNs, the erection of functional external borders has been achieved following a different logic: until now the Commission discourse has very rarely articulated undertakings that will lead to the establishment of EU-wide databases or to the performance of certain tasks at Union level.

In that respect, as President Barroso summarises: “the Commission‟s role is one of facilitator in the service of the Member States of the Union.” 134 This leads to a situation where the conditions and procedures for entry and stay for TCNs are increasingly harmonised as the above discussion of Commission discourse has shown. It is in this respect that one can talk about the construction of functional external borders of the Union.

However, this is not accompanied by an increased role of the Commission, provisions for free circulation of TCNs between the member states or establishing databases accessible to the authorities in the member states.

However, some Commission articulations point to its ambitions to amend this situation. Since 2006 some Commission proposals have implied an increase in its role in 132

Andrew Geddes, Immigration and European Integration – Towards a Fortress Europe? (Manchester:

Manchester University Press, 2000), p. 160 133 Antonio Vitorino, Asylum is a Right, Economic Migration is an Opportunity, SPEECH/03/71, 11.02.2003, p. 3 134 Jose Manuel Barroso, Integration through Education in 21st Century Europe, SPEECH/07/628, 16.10.2007, p. 3 161 the field of economic migration and the possibility for some TCNs to attain the right to move freely within the EU only 2-3 years after their first entry. The former is illustrated by Commissioner Frattini‟s introduction of the so called “mobility partnerships” made at a conference in Tripoli in November 2006. If accepted, this will become a mechanism that will enable the Commission to directly negotiate with third countries the quotas for accepted TCNs into the EU on the basis of national quotas set by member states in view of their labour market needs.135 For its part, the proposal for the admission of highly-qualified TCNs envisages that after two years of residence in a member state the highly qualified worker, as holder of an EU Blue Card, will be allowed to move with his/ her family to another member state for the purpose of highly qualified employment. 136 Thus, these two proposals show an attempt by the Commission to increase its role on free movement of TCNs. Importantly, if it is successful in promoting its vision, this will put the foundations for transforming the way functional external borders of the EU are constructed. Such articulations can potentially lead to establishment of EU-wide systems for TCN quotas and to promotion of the idea of free movement of TCNs within the EU for economic purposes.

Therefore, both of these proposals further reinforce the current trend evident in Commission discourse on free movement of TCNs towards the establishment of an external EU border.

This discussion has highlighted the trend in Commission discourse on free movement of people towards the construction of EU‟s external borders. It has shown that such a trend is evident in relation to the articulation of a European identity and the regime for free movement of TCNs. This trend is a result of the articulation of a threat in Commission documents posed by aging of EU‟s population. One of the solutions of this 135 Franco Frattini, The Future Development of EU Migration Policy, SPEECH/07/471, 03.07.2007, p. 3. For other articulations of this proposal see Franco Frattini, The Future of EU Migration and Integration Policy, SPEECH/07/98, 23.02.2007, p. 7 and Franco Frattini, Enhanced Mobility, Vigorous Integration Strategy and Zero Tolerance on Illegal Employment: a Dynamic Approach to European Integration Policies, SPEECH/07/526, 13.09.2007, p. 7 136 European Commission, Proposal for a Council Directive on the Conditions of Entry and Residence of Third-Country Nationals for the Purposes of Highly Qualified Employment, COM (2007) 637 final, 23.10.2007, Article 19, point 1. For good analysis of the legal shortcomings of this proposal for establishing this free movement in practice see Elspeth Guild, „EU Policy on Labour Migration – a first Look at the Commission‟s Blue Card Initiative‟, CEPS Policy Brief, num. 145, November 2007, pp. 5-7 162 challenge identified in Commission documents is an increase in the number of migrants admitted to the Union, which in turn implies that there will be greater freedom for movement of people. In relation to European identity, Commission articulations contribute to the construction of the external border of the Union by manifesting specific “Others” thus also enunciating a particular identity for the EU itself. Therefore, this constructs identity borders. As far as TCNs are concerned, the documents examined contribute primarily to the establishment of a new regime for legal entry and movement into the EU for work purposes. As such, they construct functional external barriers. Thus, in the sphere of free movement of people, just as in border controls, the construction of external EU borders comes about as a result of the differentiation of rights of EU citizens and TCNs.

Furthermore, the articulations in the end of the above analysis clearly indicate the ambition of the Commission to increase its role on the matters of free movement of people.

However, at present the Commission still faces important constraints in its ability to promote a reading of the undertakings in the field of free movement of people that will bring about a genuine area without internal borders in this area. This means that some internal borders between the member states continue to exist. In turn, this implies that a reconstruction of the internal borders in the Union has taken place. However, in distinction to the reconstruction of internal borders examined in the previous chapter, on some issues in the field of free movement of people the Commission has managed to attain a leading position and to secure acceptance for its vision. In the next section I present how these developments are articulated.

4.5. The Reconstruction of Internal EU Borders through the Commission Discourse on Free Movement of People In Chapter Three I showed how the Commission has had a significant input in the reconfiguration of EC/EU borders. It employed neo-functionalist logic in linking border control issues with the completion of the internal market. This allowed it to advance a radical reading according to which the goals of the SEA could only be achieved if intracommunity borders were abolished altogether. In a similar vein, currently the Commission 163 has secured the acceptance of a potentially groundbreaking arrangement for free movement for work purposes of some TCNs. This provides evidence for the ability of the Commission to employ its powers in the first pillar, thus giving a different example of how the Commission contributes to the reconfiguration of borders in the EU. Despite that, as I pointed out in Chapter Two, the Commission faces constraints to the proposals for which it can secure acceptance in the Council. In distinction to border controls where the Commission‟s position contributed to de-bordering, in the case of free movement of people its discourse is conductive to the reconstruction of internal borders in the Union. At the same time, some of the internal borders are reconstructed following a pattern very similar to the one discussed in section 3.4. They are a result of the established way of how the EU functions. Below I examine both of these instances as they are articulated through the silences and contradictions in the Commission discourse.

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