6.1.1 Reactive Approach of the Council Shaped by Economic Fears and Unwillingness to Yield Competence

Already with the adoption of the Single European Act, Member States issued a Declaration, in which they acknowledged their intention to cooperate on matters of entry, movement, and residence of TCNs on the one hand and terrorism, crime, and trafficking on the other hand.Footnote ⁷ They also added a General Declaration to Article 13 SEA stating that they retained competence on measures related to controlling migration.Footnote ⁸ In line with this emphasis on national competence, the Council paid little attention to issues of harmonizing admission or granting rights to TCN migrants.

Contrary to the Commission’s emphasis on the need to ensure the development of the EU project via a regulated system of admission shaped around long-term considerations, discussed in detail in Section 6.1.2, the Council adopted a series of resolutions stemming from intergovernmental cooperation, which stressed national competence over admission. The 1994 Resolutions touched upon admission of different categories of migrants. One resolution was issued on migrant workers, while two more followed on self-employed migrants and students.Footnote ⁹ The Resolution on TCN workers was extremely restrictive. At a time when Member States were struggling with high national unemployment and had no immediate need for migrant workers, the Resolution on TCN workers was restrictive and only addressed the issue of admission for temporary employment.Footnote ¹⁰ Member States reserved the right to allow family reunification for people admitted for temporary employment.Footnote ¹¹ Finally, failing to take into account long-term considerations, the resolution emphasized that the restrictive measures on admission implemented in Member States should be maintained and, if necessary, reinforced.Footnote ¹² These principles set out to govern admission were meant to represent the stricter standards and were not intended to be relaxed by Member States.Footnote ¹³

The overall approach of the Council was that Member States should in principle refuse entry to all TCN workers. Entry should only be considered in case of vacancies that could not be filled by Community workers or TCN workers already permanently residing in a Member State.Footnote ¹⁴ Such admission was to take place for workers who had specialist qualifications or if there was a temporary manpower shortage in national or Community labour markets, which can affect the operation of employers.Footnote ¹⁵ Authorizations to reside should be restricted to employment in a specific job and with a specific employer.Footnote ¹⁶ Further, the Resolution provided that admission for temporary employment might be offered to seasonal workers, in strictly controlled numbers, who undertook specific jobs and fulfilled a ‘traditional need’ in a Member State, trainees; frontier workers; and intra-corporate transferees. Finally, the Resolution included restrictions as to the maximum period of admission for employment, arguably to avoid the settlement of migrant workers.Footnote ¹⁷ As a result, extension of temporary stays was to be denied to seasonal workers over the six-month employment period, whereas for regular TCN workers, extension of permits could be considered only if the criteria for initial admission continued to be met, that is special skills, vacancies unfilled by Community labour, and jeopardizing the function of an undertaking.

Were economic considerations the reason for such a restrictive policy? While there is not much information in the text of the resolution to draw definite conclusions, if we compare this with the resolutions that followed on self-employed TCNs and students, the economic fears behind labour migration become clear. Specifically, the resolution on self-employed TCNs was not restrictive, and the Council acknowledged therein that the reason for differentiation was that admission of people pursuing independent economic activity added value to the economy of the host state, and thus was, as such, of benefit.Footnote ¹⁸ To the extent that the economic activity was of no benefit to Member States, then TCNs should not be admitted.Footnote ¹⁹ Similarly, regarding students, the Council emphasized the importance of ensuring that their migration was time-limited and did not turn into permanent immigration via employment.Footnote ²⁰

In times of national contestation of immigration, with local unemployment and the possibility of employing workers already residing in EU territory, the slowly resurging economies of Member States had no need for migration from outside the EU to continue to perform. This restrictive approach, although based on economic considerations, did not take into account the constantly changing economic circumstances and their relation to labour migration. What was missing was a long-term understanding of migration for achieving economic sustainability. Towards the end of the 1990s and in the years following, the Council continued to engage very sporadically with economic migration and the need to harmonize conditions of admission and residence. According to the Tampere Council, such harmonization should take place based on a shared assessment of economic and demographic developments within the EU, as well as the situation in the countries of origin.Footnote ²¹ It is not clear why the Council did not refer to the fact that the Commission had tried to issue an instrument which would embed such assessment within the EU framework, as we will see in Section 6.1.2.

6.1.2 The Persistent Ambition of the Commission to Align Migration with the Project of Growth

With an emphasis on the need to shape a system that has inbuilt guarantees to ensure the development of the Member States in changing economic and demographic circumstances, the Commission submitted a proposal on a Convention to harmonize the rules of admission of TCNs in 1997.Footnote ²² The proposed Convention was submitted under Article K3(2) of the Maastricht Treaty, and the Commission was prepared to redraft it into a Directive after the entry into force of the Amsterdam Treaty, should there be agreement. Despite its title, the proposal went a lot further than the harmonization of conditions of admission. It suggested a framework for the conclusive regulation migration at EU level by regulating the admission of migrants for employment, independent economic activity, training, study, non-gainful activity, family reunification, and the attribution of progressive rights for long-term residents. This section evaluates how economic and social objectives appeared behind the regulation of admission, while the parts of the proposal that dealt with the attribution of rights to migrant workers form part of the analysis under Section 6.2. The analysis highlights how the Commission envisioned a migration system deeply rooted in economic and social sustainability.

Acknowledging that the economic growth of the 1950s and 1960s would not return, and that the current labour market situation would not allow for a liberal migration policy, the Commission remained realistic as to the fact that the zero immigration target envisioned by Member States could not be realized.Footnote ²³ In the explanatory memorandum, the Commission set the Convention within the context of shaping a system that could ensure the continued benefits of migration for the EU development project. This would materialize as follows: admission would be granted to TCN workers if there existed a vacancy that could not be filled by a Community worker or by a legally resident TCN worker. The idea behind this system was to allow the market to function, while avoiding an increase in labour force via migration at a time when unemployment was already a problem in the Member States.Footnote ²⁴

TCN workers would need to have an offer of employment for at least one year in order to enter, and they could be admitted with a maximum four-year authorization at the first entry.Footnote ²⁵ The renewal of their permit would be dependent on the continuation of the conditions behind their initial entry. This meant that, if there was labour demand, migrants would be able to continue to reside, whereas, in the case of recession and unemployment, the conditions of their initial entry would not be fulfilled, and they would not be able to prolong their stay, as their labour would no longer be needed. As for seasonal workers, they would be granted admission for six months, and TCNs who had already been admitted as seasonal workers would have priority in future applications for a seasonal work permit.Footnote ²⁶ The idea behind the prioritization was to counter the risk of seasonal workers staying illegally, as they would benefit from preferential treatment in future applications.Footnote ²⁷ The emphasis on the function of labour migration, and more specifically on a harmonized admission system for achieving the economic objectives of the EU, is also apparent if we compare the admission criteria for workers to those of students and trainees.Footnote ²⁸

Finally, Article 22 of the proposed Convention attested the cost-benefit analysis behind the regulation of admission of TCNs in the EU. Specifically, the Commission suggested that there were certain categories of TCNs who were not covered by the proposal but who should not be denied stay, namely pensioners, people living on capital income, writers receiving royalties, and au pair students. Since such people do not seek to join the labour market and create no economic burden, but are rather consumers and investors, their admission should be considered favourably. This proposal was eventually withdrawn in 2001.Footnote ²⁹

At this point, the Commission issued another proposal under Article 63(3)(a) of the Amsterdam Treaty suggesting that the role of TCNs in the EU labour market had been disregarded in comparison with other areas, related to the single market.Footnote ³⁰ The 2001 proposal sought to regulate the admission of TCNs for the purpose of paid employment and self-employed activities.Footnote ³¹ The aim was to provide rights to TCN migrants, while allowing Member States to limit admission for economic migration in case of limited labour demand. Specifically, the framework would permit a quick reaction to changing economic and demographic circumstances, and admission would be allowed only if there was an economic need on behalf of the Member States, or if such TCN migrants had a beneficial effect to the national economies.Footnote ³²

The proposed Directive provided for equal treatment on a set of basic rights enshrined in Article 11.Footnote ³³ More specific provisions regulated the admission of seasonal workers, trans-frontier workers, intra-corporate transferees, trainees, and au pairs.Footnote ³⁴ Further, Article 32 of the proposed Directive introduced a general non-discrimination provision regarding its application, with a wording based on Article 13 EC Treaty and Article 21 CFR.Footnote ³⁵ Under Article 26 of the proposed Directive, Member States were allowed to maintain horizontal measures in addition to the economic needs test to regulate access to the labour market. Such measures would have to be communicated to the Commission, which would evaluate whether they were justified.Footnote ³⁶ Finally, Member States could introduce exceptions for employment in public service under Article 28 of the proposed Directive.Footnote ³⁷ This proposal was eventually withdrawn in 2006, after failing to gather support from the Council, which did not want to address the matter of horizontal admission for all categories of TCN migrants.Footnote ³⁸

In addition to this failed proposal, the Commission had proposed an instrument on admission of students and an instrument on family reunification, which were supposed to be complementary and to meet the Tampere demand for conclusive regulation of migration. Admission for TCNs for reasons other than these (employment, independent economic activity, family reunification, and studies) was deemed as adequately regulated under domestic law due to the low number of people falling in this category.Footnote ³⁹

The regulation of student admission was presented as disconnected from the labour market and linked to social enrichment and the exchanges between cultures promoted by student mobility.Footnote ⁴⁰ The instrument was much more socially oriented, insofar as it aimed at promoting the EU as a global centre of excellence for education which would support the dissemination of human rights values, and sought to contribute to the objective of promoting quality education under Article 149 EC.Footnote ⁴¹ In the end, the Directive adopted covered the admission of students, and Member States were given discretion on extending its application to school pupils, unremunerated trainees, and volunteers. The Directive included general and specific conditions of admission for the different categories.Footnote ⁴² Regardless of the category, though, comprehensive insurance and sufficient resources during the migrants’ stay were required.Footnote ⁴³

Following the national practice of allowing students to remain in Member States in order to address skilled manpower shortages, the Commission also proposed the possibility of change of status from student to worker without having to leave the host state and reapply.Footnote ⁴⁴ The proposal provided for the right to work to both students and trainees. In the text adopted, this right was only limited to students under Article 17, which also allowed Member States discretion to determine for how many hours students could be employed. Additionally, Member States were allowed to restrict access to employment for the first year of residence under Article 17(3). Finally, Article 12(2)(a) of the Directive provided that a refusal to renew or withdrawal of a permit could be justified based on a failure on the part of the student to respect the limitations regarding access to economic activities.

Essentially, all the proposals by the Commission to horizontally regulate admission for all the categories of TCN migrants failed. It is not easy to determine with certainty why these proposals were rejected by the Council, that is, whether the issue was the need of Member States to maintain competence on regulating migration, the assumed risks for their economies, or the fact that the proposals, especially the 1997 one, would lead to a system of residence and movement equally extensive to that applicable to EU migrants. In any case, in the period under review, the only measure that was eventually adopted regulated the admission of students, which came with no economic cost, and which still incorporated specific limits to avoid the possibility of students entering the EU to find employment.

6.2.1 Towards an Autonomous Protection of Migrant Workers’ Families

The attribution of family reunification rights to legally resident TCN migrants was very controversial. Despite the restrictive admission policies prevalent in the 1980s, Member States had maintained exceptions for humanitarian reasons, among which was also family reunification. This led to substantial migration movements, and, as a result, in the 1990s, Member States started to impose tighter conditions for family reunification.Footnote ⁵³ According to an ILO working paper, economic considerations influenced both the law and practice of Member States, as foreign family members were viewed as a potential economic liability, searching for work at times of high unemployment.Footnote ⁵⁴

During this period, the ad hoc Group on Immigration tabled a resolution on harmonization of national policies on family reunification, which was adopted in Copenhagen in June 1993.Footnote ⁵⁵ The resolution did not provide much harmonization. Rather, it suggested that family reunification should apply to TCNs legally resident in a Member State ‘on a basis which affords them an expectation of long-term residence’.Footnote ⁵⁶ The definition of what constituted an expectation of long-term residence was left to national law. Member States were allowed to make entry and stay conditional on the availability of adequate accommodation, sufficient resources, and the existence of health insurance, to avoid placing a burden on public funds.Footnote ⁵⁷ What is more, the authorization to family members could be made conditional on a continued fulfilment of the criteria for admission for a period, which the Member States would define.Footnote ⁵⁸ Within a reasonable time following admission, family members could be authorized to stay on an independent basis in accordance with the provisions of national law.Footnote ⁵⁹ This restrictive approach is in stark contrast with the Opinion of the Economic and Social Committee, which suggested that family reunification should take place under the same conditions as applicable to Community workers.Footnote ⁶⁰

The 1997 Commission proposal on a Convention regulating the admission of TCN migration discussed earlier, also included provisions on family reunification. In the proposal, the issue was disconnected from economic considerations, and instead it was linked with obligations to consolidate the rights of migrant workers.Footnote ⁶¹ Under Article 24 of the proposed Convention, family reunification rights would be granted to TCNs who were resident for one year and had a prospect of valid residence for two more years. Article 28 of the proposed Convention provided that the applicant should have sufficient material conditions to support their family and to ensure that reunification would not place a burden on state expenditure. Article 30 enshrined a limitation for family members’ access to employment for a period of six months, as the admission was granted for human rights reasons and not for economic ones. Finally, Article 31 provided that family members would be entitled to an autonomous right to reside subject to the fulfilment of the specified conditions.

After the failure to adopt the proposed Convention, the Commission issued a specific proposal on family reunification for both TCNs and EU nationals who did not fall under the free movement rules.Footnote ⁶² By this proposal, the Commission sought to consolidate the protection of family life in the EU, as means to promote the living conditions of everyone in the territory, rather than specific migration-related rights. Specifically, the harmonization of family reunification was suggested because of the function of family for integration in the host state.Footnote ⁶³ By analogy to family reunification rights for EU nationals, the Commission suggested that fair treatment of TCNs was ‘indispensable’ if they were to lead a normal life in the host states.Footnote ⁶⁴ However, this horizontal regulation of family life for both TCN and EU nationals who had not moved from their state of origin was not accepted by the Council.Footnote ⁶⁵

Eventually, the Family Reunification Directive was adopted in 2003.Footnote ⁶⁶ It applies to all legally resident TCNs and excludes all migrants whose status is considered uncertain or temporary.Footnote ⁶⁷ Under the current framework, the right to family reunification for TCNs is regulated and harmonized to promote economic and social cohesion under Article 3 TEU, as acknowledged in Recital 4 of the Directive. Even though Article 3 TEU is not explicitly referred to, the recital mentions the central role of family reunification in the creation of sociocultural stability and integration for TCNs, and explains that such outcome serves to promote economic and social cohesion as fundamental objectives stated in the Treaty. The Directive creates a right to family reunification for the nuclear family of TCN migrants. The 1999 proposal for this Directive provided for a larger scope of family members entitled to reunification.Footnote ⁶⁸ This was met with resistance by the Council, which suggested as a compromise that the Family Reunification Directive should create an obligation on the part of the Member States for family reunification for members of the nuclear family, and allow discretion for the rest.Footnote ⁶⁹ Thus, Article 4 of the Family Reunification Directive provides family reunification rights for the spouse of the TCN and the minor children (including adopted children) of the TCN or the spouse as long as the TCN has custody and the children are dependent on them. The age of majority for reunification of children is set by national law and the children must not be married. Apart from the spouse and minor children, Member States have discretion to authorize the reunification of other family members under Article 4(2) and (3) of the Directive. Similarly, the provisions as to the age of children were revised as Member States requested room for manoeuvre to examine whether children met the conditions of integration beyond a certain age before authorizing family reunification.Footnote ⁷⁰

The Directive also provides family members with rights that are dependent on economic considerations. All family members enjoy entry and residence rights in the host Member State.Footnote ⁷¹ The Directive also provides rights of access to vocational guidance. This should not come as a surprise, since access to vocational guidance means that family members will be ready and trained for work when labour demand might arise. They should indeed eventually enjoy access to employment. However, the Directive allows Member States to limit such right for up to twelve months, during which they may examine the situation of their labour market, and they may also restrict access to the employment market for the dependent relatives and adult children entitled to reunification under Article 4(2). This type of limitation of family members’ right to access the labour market should also not come as a surprise. The purpose served by such restrictions is the following: family reunification is introduced as a social measure to ensure better living conditions for the migrant worker. If family members are allowed to access the labour market with no restriction, this has the potential of negatively impacting the economy at times when there is no labour demand.

Finally, the Directive provides for the possibility that family members establish an autonomous right of residence.Footnote ⁷² Specifically, such an autonomous right shall be granted after maximum five years of residence in the host state. Member States are allowed to limit the autonomous rights of the spouse or unmarried children in the case of breakdown of the family relationship. They have the discretion of granting such a right to adult children and dependent relatives under Article 4(2) and the possibility to providing it in cases of widowhood, divorce, separation, or death of first-degree relatives in the direct ascending or descending line, as well as in cases of particularly difficult circumstances. Family members of workers also enjoy a set of procedural rights, which have been consolidated in the case-law.Footnote ⁷³

The Directive includes limitations to the right to entry and grounds for non-renewal of the permit in case the conditions set by the Directive are no longer satisfied, in case of fraud, public policy threat, fake marriage, or marriage of convenience; in case family members no longer have a real relationship with the sponsor; in case the sponsor has no right to reside; and, finally, in case the sponsor does not have sufficient resources.Footnote ⁷⁴ The requirement of sufficient resources applies as a condition of entry but is explicitly repeated as a reason to withdraw the permit upon application for renewal.Footnote ⁷⁵ The difference is that, on renewal, Member States can also take into account the potential contribution of the family member.

Thus, in the field of family reunification, while economic considerations appeared behind restrictive national policies, the Commission’s approach was socially oriented. Essentially, the demand for securing rights to family reunification was aligned with a need to protect the human rights of people residing in EU territory and fit with the promotion of the social objectives of the EU project.Footnote ⁷⁶ This is unlike family reunification for EU migrants, where the stated objective of regulation was to support the migrant worker in the performance of their task, as discussed in Chapter 2. At the same time, economic considerations condition the attribution of rights to migrant families to ensure that the family members will not pose risks to Member States’ economy. This is achieved through the introduction of requirements related to sufficient resources of the sponsor as a precondition for enjoyment of the family reunification right. The economic conditioning of the relevant rights has been interpreted in a restrictive way by the Court, as we will see in Chapter 9. Overall, in the regulation of family reunification, we see a shift that places migration closer to the social objectives of the EU, which were redefined during this period and were consolidated in the post-Amsterdam framework. At the same time, it is clear that the parallel pursuit of economic and social sustainability also conditions the attribution and limitation of migrants’ rights in this field.

6.2.2 From a By-product of Economic Progress to a Means of Integration: The Case for Progressive Attribution of Rights

During this period, the rights of legally resident TCNs appear in concrete legislative proposals. As should be expected at this stage of the analysis, the ambition to attribute rights to TCN migrants was subject to conflicting ideas between different actors. Specifically, the Commission suggested the extension of free movement and access to employment across all Member States for resident migrants.Footnote ⁷⁷ The need to extend freedom of movement to TCN migrants was also supported by the Parliament and the Economic and Social Committee, with reference to the contribution of TCN workers to the development of the EU project, and to the aim of creating an EU labour market.Footnote ⁷⁸ Regarding the Commission’s position, it appears that the internal market logic lay behind such a demand. Absent any differentiation between EU and TCN workers’ contribution to growth, there was a demand to grant access to employment in another Member State to the latter.Footnote ⁷⁹ In this context, the Commission envisioned the priority of legally resident TCNs after EU nationals in accessing employment in other Member States.Footnote ⁸⁰ That would be the first step, while a 1994 Commission Communication suggested a second step of allowing TCN workers to enter another Member State to respond to offers of employment.Footnote ⁸¹ Leaving some leeway to the intergovernmental cooperation taking place at the ad hoc group on migration, the Commission suggested that it would pursue the conditions of movement in the EU for legal migrants if the relevant initiatives did not move forward.Footnote ⁸²

Free movement of TCNs did not materialize at that time, but instead the Commission submitted a proposal that would grant rights to legally resident TCNs to travel within the Community.Footnote ⁸³ The attribution of a right to travel was based on Article 100 EC, which provided for the coordination of national laws in matters affecting the functioning of the common market. While such a right would advance the position of TCNs, the central aim was to ensure the full economic benefits of a single market. As the Commission suggested in the relevant proposal, such a right to travel between the Member States for short stays was both useful from an economic point of view and legally necessary.Footnote ⁸⁴ For the Commission, it did not make sense to have labour demand that can be filled internally, that is, by other EU workers and TCN workers resident in other Member States, and to still preclude TCNs from such employment, which would lead to more external recruitment.

At the same time, security of residence became a demand related to the social advancement of the migrant, and hence there was call for a common permanent residence scheme granted after a fixed period across the Member States, as well as for the progressive attribution of extra rights to settled migrants.Footnote ⁸⁵ While the Council seemed to recognize the social significance of integration of legally resident TCNs, its approach to granting rights to long-term resident TCN workers remained restrictive.Footnote ⁸⁶ In a 1996 Resolution, the Council held that long-term residents should be defined as TCN migrants who have stayed in the territory of a Member State for a period of ten years.Footnote ⁸⁷ While the resolution provided that Member States should ensure security of residence for at least ten more years to long-term resident workers, it suggested that when an application was made to this end, Member States should be able to assess whether the applicant had a certain and stable level of means of subsistence, in particular health insurance, and whether they fulfilled the conditions for exercising an occupation.Footnote ⁸⁸ As to the question of rights, the resolution provided that long-term residents and their family members should enjoy ‘no less favourable’ treatment than nationals of the Member States as regards working conditions, membership in trade unions, public policy in the housing sector, social security, emergency healthcare, and compulsory schooling.Footnote ⁸⁹ Moreover, the resolution suggested that it should be possible for long-term residents and their family members to be granted non-contributory benefits.Footnote ⁹⁰

Unlike the restrictive approach of that Resolution, the 1997 proposed Convention discussed earlier placed security of residence in light of integration, as necessary to safeguard an equilibrium in European societies.Footnote ⁹¹ Under Article 32 of the proposed Convention, long-term resident status would be granted to TCNs who had been resident in a Member State for five years and who held a residence permit that ensured that on expiry they would have lived in that Member State for a total period of ten years. The rights for long-term residents would be guided by non-discrimination compared to EU nationals and a greater protection against expulsion.Footnote ⁹² In Article 35, the proposed Convention provided them the right to apply for vacancies in other Member States, and to study throughout the EU. The reasoning behind the attribution of such rights was both economic and social. According to the Commission, the possibility to take up work in another Member State would not affect the labour market, as it would not increase the number of migrants employed in the EU.Footnote ⁹³ Moreover, with the aim of moving towards a broader EU social space, the Commission mentioned that long-term residents were seeking integration not in the particular Member State where they resided but rather in the frontier-free area of the EU.Footnote ⁹⁴ As the new millennium began, the Commission also used the Charter as a point of reference, perhaps in an attempt to consolidate a direct link of rights between TCNs and the EU legal order. Specifically, it mentioned that the Charter could be a reference point for the development of a civic citizenship that would comprise of common rights and obligations.Footnote ⁹⁵

Relatedly, a proposal was issued by the Commission with the aim of consolidating the rights of long-term residents.Footnote ⁹⁶ The proposal suggested that full integration for long-term residents should necessarily imply their right to move between Member States. Specifically, the Commission claimed that ‘[a] genuine area of freedom, security and justice, a fundamental objective of the European Union, is unthinkable without a degree of mobility for third-country nationals residing there legally, and particularly for those residing on a long-term basis’.Footnote ⁹⁷ Free movement rights for long-term residents were demanded in light of Article 45 CFR, which provides for the possibility of extending free movement rights to TCNs. Apart from suggesting such rights to free movement, the Commission insisted on the economic need behind such attribution which would allow for ‘better utilisation of employment reserves available in different Member States’.Footnote ⁹⁸

The Commission managed to gather support and adopted the Long-term Residents Directive in 2003, as means to promote the social objectives of the EU by ensuring fair treatment to legally resident TCNs and to put in place an integration policy that would grant TCNs rights and obligations comparable to those of EU migrants.Footnote ⁹⁹ Recital 4 of the Directive mentions that the integration of TCNs who have had a long residence in the EU is key in promoting the economic and social cohesion of the Union. Under Article 4(1), the status is attributed to all migrants who have lawfully resided in a Member State for a period of five years. Under Article 14, long-term residents can move to another Member State for periods longer than three months for any purpose (study, economic activity, other purposes). What is more, they have access to the labour market of the second Member States under equal treatment conditions under Article 21. However, Articles 13 and 21(2) allow Member States to set restrictions and conditions to the exercise of such rights which can significantly limit their effectiveness by making it extremely hard to move to take up employment in another Member State. Thus, even though free movement found its way in the Directive, the practical effect of the relevant right is significantly limited.

The Long-term Residents Directive is a clear example of the ways in which economic considerations can frame legislation at EU level: the aspiration of extending rights to migrants in order to boost the economy is limited and made ineffective due to economic fears of what might happen to the economy if migrants actually enjoy rights. The long-term approach of the Commission and its emphasis on the positive function of long-term residents for the EU economy was the reason for attribution of free movement rights to this category of TCNs. In parallel, the economic fears connected to potential negative effects of such movement for national labour markets were expressed by the Council as a reason to set substantive limitations to such movement making it practically ineffective.Footnote ¹⁰⁰

This ineffectiveness led to a demand for the revision of this instrument. In December 2022, the Commission issued a proposal for revision with the aim of strengthening the rights of long-term residents and their families and drawing them closer to the rights of EU nationals.Footnote ¹⁰¹ The Commission demanded consolidation of free movement rights for long-term residents once again, based on the idea that such movement can improve labour market effectiveness.Footnote ¹⁰² The negotiations of the relevant proposal have shown that Member States are unwilling to take away economic limitations from the exercise of mobility rights.Footnote ¹⁰³ When it comes to the protection of social rights of long-term residents, which were also limited in the original formulation of the Directive, these have been extensively interpreted by the Court, which has limited state discretion behind their limitation, as we will see in Section 9.3. Once again economic and social considerations appear in the approach of different actors and affect the shaping of the EU migration policy. The lack of long-term considerations on the part of the Council limiting the attribution of both mobility and social rights to long-term residents lies behind the unsustainability of this instrument and its failure to achieve the economic and social objectives of primary law in the regulation of migration.

7.1.1 Economic and Social Considerations behind the Attribution and Consolidation of the Rights of Turkish Workers

The EEC–Turkey Agreement created a special status for Turkish workers, which distinguished them from other third-country national workers. The adoption of the Agreement and its implementing decisions took place in years characterized by significant socio-economic changes. Throughout these years, the presence and importance of Turkish workers on Member States’ territory was massive for the economic development of the EU. This allowed a better negotiating position for Turkey during the development of the Association. The aim of the Agreement and the initial – yet never materialized – purpose of eventual accession has been acknowledged as a basis of analogous interpretation in the case-law.Footnote ¹ However, this aim has not been the only consideration in the reasoning of the Court. Before going into the relevant analysis, a reminder is due: the EEC–Turkey Agreement did not affect Member States’ competence in regulating entry of migrants, nor did it impose obligations regarding family reunification. Rather, under different implementing decisions, the Agreement sought to advance the social position of Turkish workers and their families by ensuring the consolidation of their position after a certain time in the national labour market.

The most crucial part of the Decisions implementing the Agreement, and one which differentiates Turkish workers to this day, when the EU has put in place a separate migration policy, is the standstill clauses that were included in them. Specifically, Decision 1/80, which specified the rights that should be granted to migrant workers and their families, included a standstill clause under Article 13. The clause provided that Member States should not introduce new restrictions on the conditions of access to employment of Turkish workers and their families who are legally residents and employed in the Member States. Early on, the Court held that Article 13 of Decision 1/80, much like the similar clause of Article 41 of the Additional Protocol to the Agreement, had direct effect and could grant rights to individuals.Footnote ² The Article was interpreted as meaning that Member States were not allowed to adopt new measures having the object or effect of making the conditions of access to employment for Turkish nationals more restrictive.Footnote ³ The Court further held that the standstill was intended to protect Turkish nationals who were not already lawfully employed and residing in the host state.Footnote ⁴ Those who were lawfully employed were protected via the provision of Article 6 of Decision 1/80.Footnote ⁵ What is more, the Court held that this also applied to Turkish workers and their families who were not in paid employment.Footnote ⁶ How to reconcile this with the fact that the wording of the provision refers to ‘legally resident and employed’ Turkish nationals? The Court held that this should be taken to mean that the provision benefited Turkish nationals only if they complied with the host state’s rules on entry, residence, and employment.Footnote ⁷ The similar standstill clause of Article 41 of the Additional Protocol to the Agreement also shaped the Court’s case-law on practices of Member States which could limit family reunification rights.Footnote ⁸

Overall, the standstill clause was interpreted as follows: the adoption of new rules by Member States would either have to benefit the Turkish workers or, if these were more restrictive, they would have to apply equally to both Turkish and EU nationals, and would have to be proportionate in light of the pursuit of a reason of overriding public interest.Footnote ⁹ The Court has found several legitimate reasons falling under this concept: the aim of preventing illegal entry and residence, the prevention of forced marriages, ensuring successful integration, effective management of migration flows, and preventing and combatting entry fraud.Footnote ¹⁰

The system set up by Decision 1/80 and the progressive attribution of rights to migrant workers under Article 6 allowed the Court to infer a residence right from an effective protection of a right to work.Footnote ¹¹ Specifically, the Decision set up a system of progressive attribution of rights to Turkish workers on access to employment. Turkish workers were entitled to renewal of their permit to work for the same employer after one year of legal employment. After three years of legal employment, they could respond to any offers of their choice for the same occupation, subject to priority for Community workers. After four years of employment, they were entitled to free access to any paid employment. This Article regulated the conditions under which Turkish workers would progressively enjoy greater access to employment in the Member States. By engaging with the different criteria that needed to be met for a Turkish national to acquire the relevant EU law rights, the Court extended the scope of protection of the Decision and consolidated the rights of Turkish workers to security of residence.

Overall, for Turkish nationals to enjoy rights under Decision 1/80, they would have to be workers, duly registered in the labour force of a Member State, and in legal employment for a specified period of time. The Court aligned the interpretation of ‘worker’ with that provided under the free movement case-law.Footnote ¹² Specifically, the Court held that the Agreement aimed at progressively extending access of Turkish nationals to the EU labour market, and that this was similar to the aim pursued by free movement of workers. The result was that the scope of the Decision was aligned with the extensive scope of protection under the free movement framework.Footnote ¹³ Migrant workers who continuously contributed to a national labour market ought to enjoy full protection of the rights granted in Decision 1/80, and those who could no longer do so could not secure a right to remain.Footnote ¹⁴ With no EU competence on regulating entry of TCN migrants, the admission and residence of Turkish nationals were based on national law and the sovereign right of states to manage population. However, once Turkish nationals were engaged in economic activity that fulfilled the criteria of the decisions implementing the Association Agreement, they proved themselves worthy of rights attributed under EU law. Due to this, security of residence should be guaranteed in order to allow them to continue their engagement in the activity, by which they personally contributed to the EU development project. The Court drew both on the purpose of the Agreement and on the agency and contribution of the individual migrant as a way to secure residence rights for Turkish migrants. A need to secure the effective exercise of the right to work became the basis for attribution of residence rights to Turkish workers who could not secure such residence under national law. The significance of the functional role of Turkish workers for the EU development project became a basis for attribution of rights in ways very similar to EU workers. Similar considerations of economic and social sustainability as expressed in the parallel pursuit of economic growth and social progress underpin the rights of both these categories of migrants.

As regards the protection of family life, the Court has been very explicit about the social purpose served by family reunification and has ensured an extensive protection for family members. The EEC–Turkey Agreement did not establish a right to family reunification. Rather, the implementing decisions secured rights for family members, who were authorized under national law to join the Turkish worker in the host state.Footnote ¹⁵ Article 7 of Decision 1/80 secured rights for family members of Turkish workers in the following way. Family members were entitled to respond to offers of employment after residing in the host state for more than three years. After five years of residence, they could enjoy an autonomous employment right and a corresponding residence right, flowing from EU law. After the establishment of such an autonomous right, family life need not be maintained.Footnote ¹⁶ The Court’s case-law has engaged at great length with the purpose served by the rights granted to family members and has held that this gradual attribution of rights pursued a dual objective.Footnote ¹⁷

The first objective of Article 7 Decision 1/80 (for the first three years of common residence) was to support migrant workers by means of family reunification in their employment and residence in the host state.Footnote ¹⁸ During these first three years, family members played a supportive function to the worker, and their rights promoted cohesion in the host societies.Footnote ¹⁹ In light of this function of family as conducive to the enjoyment of the worker’s life in the host state, the Court interpreted the notion of family under Article 7 Decision 1/80 in ways similar to Regulation 1612/68. The analogous interpretation stemmed from an understanding that the purpose of Article 7 Decision 1/80 and Regulation 1612/68 was similar, that is, protecting family unity as conducive to the enjoyment of the worker’s life in the host state.Footnote ²⁰ This led to a significant limitation of restrictions on entry and residence in light of the importance of family life for the enjoyment of work-related rights.

The second objective of the protection of family life appears in relation to free access to any employment and the corresponding residence rights for family members after a period of five years. These rights were conferred in order to consolidate the social integration of the Turkish worker’s family in the host state by allowing family members to earn their own living and become independent of the migrant worker.Footnote ²¹ The individualization of protection of the family member is put forward by the Court in light of the purpose of Decision 1/80 to improve the social situation of Turkish migrants by promoting the gradual integration of those covered by the Decision in the Member State.Footnote ²² In this regard, the Court held that residence rights of family members who have been residing with the worker in a host state for a period of five years should be maintained in cases where such family members were not actively pursuing employment. In Er, the Court held that the grounds for exclusion from the rights granted under Decision 1/80 were specific: they referred exhaustively to public policy limitations and absence from territory.Footnote ²³ Member States no longer enjoyed discretion in adding restrictive conditions on the exercise of the relevant rights.Footnote ²⁴ The reasoning for proceeding in such a finding followed the acknowledgement of a link between the unconditional right to access employment and the right of residence.Footnote ²⁵ The right of free access to employment was granted to family members of Turkish workers in order to ensure their permanent integration in the host state.Footnote ²⁶ Such permanent integration would be jeopardized where family members did not enjoy an effective right to reside and thereby to eventually exercise employment.Footnote ²⁷

In developing this case-law, the Court put a lot of emphasis on the objective of Decision 1/80 to improve the situation of migrant workers in the social field. Does this mean that economic considerations should not affect the attribution of rights to family members? This seems to be the approach followed by the Court. Although not explicitly acknowledged by the Court, AG La Pergola, in his Opinion in Eyüp, suggested that a balancing of interests between protection of family life and protection of national employment markets had already taken place in the design of the provisions of Decision 1/80.Footnote ²⁸ Thus, it was assumed that no further restrictions should be imposed in a system designed to progressively attribute rights to family members of migrant workers.

Relatedly, in the case of children of Turkish workers, we see how access of a specific cohort of migrant children to vocational education becomes the basis for autonomous residence rights. Children of Turkish workers who had completed vocational training in the host state were granted a right to respond to offers of employment independent of the length of their residence there, as long as one of their parents had been already legally employed in the Member State for at least three years. This autonomous right, granted under Article 7(2) Decision 1/80 to children trained in the host country, was linked to the presumption that they had the expertise necessary to immediately participate in the labour market of the state that had trained them.Footnote ²⁹ Children of Turkish workers are not only significant as family members. They are also significant as part of a future labour force that is trained in the host state at its expense.Footnote ³⁰

In addition to these rights, Article 9 Decision 1/80 required that children of Turkish workers be granted access to education, apprenticeship, and vocational training under the same conditions as children of Community nationals. In Gürol, the Court held that Article 9 Decision 1/80 is an application of the general principle of non-discrimination in the sphere of education and vocational training. Specifically, the Court held that this provision is a specific iteration not only of the principle of non-discrimination laid down in Article 9 of the Agreement but also of the general non-discrimination principle of Article 7 of the EC Treaty.Footnote ³¹ The right to equal access to education is independent of residence with the parents during the period of education.Footnote ³² What is more, children also have access to advantages related to education.Footnote ³³ Essentially, the purpose of Article 9 Decision 1/80 is to guarantee equal opportunities to Turkish children and nationals of the host state.

Overall, in the relevant case-law, the Court consolidated the rights of Turkish workers and their families. The consistently broad interpretations took place not only in light of the purpose of the Association Agreement, whose main elements shifted over the years, for reasons that are related to geopolitical evolutions and circumstances external to legal reasoning. The interpretation of the Court was also driven by the function of migrant workers for the host state and the corollary need for social advancement of migrants in host societies. These considerations implicitly convey the pursuit of economic and social sustainability in the regulation of migration. To what extent similar considerations play out in relation to Agreements signed by the EU, where eventual accession was never foreseen, will be traced in Section 7.1.2.

7.1.2 Non-discrimination in the Field of Social Security

In the field of social security, Kziber stands out as the case which provided the foundation for a full extension of equal treatment to migrant workers and their families covered by Association Agreements.Footnote ³⁴ The case concerned the refusal of Belgian authorities to grant an unemployment allowance to the daughter of a Moroccan pensioner in Belgium. She claimed that she was entitled to this allowance as a family member of a former Moroccan worker under the equal treatment provisions of the EEC–Morocco Association Agreement.

The benefit at stake was also the subject of the Deak case, where a family member of a former Community migrant worker claimed access to it.Footnote ³⁵ There the Court held that the specific benefit could not be attributed to family members of migrant workers as a derived right. It was rather granted to former workers due to their own personal situation. Despite this, the Court found that the children of Community workers, to the extent that they were dependent on the Community worker, were entitled to this benefit under Article 7(2) Regulation 1612/68 as a social advantage.

Contrary to the conservative approach of AG Van Gerven,Footnote ³⁶ the Court resolved the case with reference to the provisions of the Cooperation Agreement. It found that the principle of non-discrimination as provided for in Article 41(1) of the Agreement had direct effect.Footnote ³⁷ What is more, it found that social security benefits under Article 41(1) of the Agreement were identical to those provided under Regulation 1408/71 and that the unemployment benefit at issue fell under them. By basing the attribution of the respective rights directly on Regulation 1408/71, the Court took the social rights of TCN workers and their families a step further than those of Community workers. The findings of the Court in Kziber have been consistently applied in a series of cases covering various social security benefits, Association Agreements, and family members.Footnote ³⁸

The extensive application of non-discrimination in the field of social security was also confirmed with regard to Turkish workers. Decision 3/80 regulated the application of social security schemes to Turkish workers.Footnote ³⁹ Article 3 of the Decision provided for equal treatment of Turkish workers and nationals of the Member State. The Court established the direct effect of provisions of the Decision and held that its purpose was similar to that of Regulation 1408/71, which applied to Community workers.Footnote ⁴⁰ In Sürül, the Court addressed the question of whether a Turkish national covered by Decision 3/80 would have to hold a specific residence permit in order to be granted family allowances in a case where residence was the only requirement applicable to nationals of the state.Footnote ⁴¹ In resolving the case, the Court aligned the application of non-discrimination to Turkish workers and their families to the interpretation it had provided on other Association Agreements.Footnote ⁴² Specifically, the Court found that non-discrimination, as it appears in Article 3(1) of Decision 3/80, was a specific expression of the general non-discrimination principle laid in Article 9 of the EEC–Turkey Agreement, which referred to the general non-discrimination principle under Article 7 of the EEC Treaty.Footnote ⁴³ As a result, it held that national legislation requiring Turkish workers to possess specific residence document to access family allowances, where such documents were not required for Germans, constituted an unjustified discrimination under the Decision.Footnote ⁴⁴

The extensive protection of migrant workers under the principle of non-discrimination is not limitless. Rather its limits should be seen in relation to the purpose served by its attribution. In this respect, in Fahmi and Esmoris Cerdeiro-Pinedo Amado, the Court held that the prohibition of discrimination regarding access to social security did not cover workers who returned home and claimed child allowance benefits for children who studied in the state of origin.Footnote ⁴⁵ Article 41(3) of the EEC–Morocco Agreement, which was applicable to the facts of the case, provided that family allowances were granted for family members who resided in the Community. In light of this, and the fact that the purpose of the Agreement was to consolidate the positions of workers and their families living in the Member States, the Court found that the right to non-discrimination could not extend as far as providing access to entitlements to those outside its territory.Footnote ⁴⁶ After all, non-discrimination ensures the social advancement of the migrant worker and the members of their family in the host state, and is granted to support the migrant in the provision of their work. If the migrant worker is no longer engaged in economic activity in the EU, there is no reason why non-discrimination should apply and support their life outside the exercise of such activity.

After an overview of the relevant case-law, one is left wondering why equal treatment as provided under all the different Association Agreements examined in this section is protected by the Court in such an extensive manner. The special purpose of the EEC–Turkey Agreement is always emphasized by the Court, but the Association Agreements with Mediterranean countries did not foresee eventual accession and, unlike the EEC–Turkey Agreement, did not make any reference to guidance by the provisions of the EU free movement framework. Despite this, the Court made the link between non-discrimination in all the relevant Agreements and the general non-discrimination principle enshrined in the Treaty. What the Court added by its interpretation is that, regardless of state competence on the regulation of migration, whoever falls within the scope of EU law must not be discriminated against in the specific economic activity that they pursue. Based on this, it can be argued that the significant advancement of the social position of the migrant workers covered under these Agreements by the interpretation of the Court is closely connected to the migrants’ contribution to the EU development project, which is also the reason why they fall under social security schemes in the first place. This close connection reveals the interdependence of economic development and social progress behind the rights of migrants in a way which would be demanded today by economic and social sustainability in the regulation of migration.

7.1.3 A Permanent Safeguard: Non-discrimination behind a Limited Right to Remain

The significance of the principle of non-discrimination for migrant workers is further highlighted through the case-law of the Court in El Yassini.Footnote ⁴⁷ In this case, the Court addressed non-discrimination regarding working conditions as the source of legal certainty, which demanded that a residence right should be ensured for as long as someone was granted a right to employment, subject to clearly construed limitations. El Yassini, a Moroccan national, entered the UK as a visitor and was granted leave to remain, due to a subsequent marriage to a British national. The marriage was eventually dissolved, and he was engaged in lawful employment in the UK. Upon refusal by the UK authorities to grant him leave to remain, El Yassini claimed that the equal treatment provision of the EEC–Morocco Agreement should guarantee his right to continue his employment, by the creation of a derivative residence right for the remaining time of his employment contract.

In his Opinion, AG Léger set out to compare three types of legislation that were relevant for migrant workers’ rights, and the different purposes non-discrimination served in each of them, namely the Community free movement framework, the EEC–Turkey Agreement and the EEC–Morocco Agreement.Footnote ⁴⁸ In light of the purpose of the EEC–Morocco Agreement to contribute to the economic and social development of Morocco and of the absence of any rights regulating the personal situation of Moroccan workers in the Agreement, the AG suggested that Community law had no relevance in the specific dispute as to the treatment of Moroccan workers, who belonged to the labour force of Member States.Footnote ⁴⁹ The AG supported this exclusion from Community law not only on the basis of the sovereign right of states to decide their immigration policy, but also on the EU law obligation to ensure priority access to national labour markets for Community workers in the first place and Turkish workers in the second.Footnote ⁵⁰ The Opinion could have concluded at that stage. But it did not. Instead, the AG held that the principle of non-discrimination demanded that when a worker was authorized by a Member State to take up employment for a specific period of time, the effectiveness of that principle implied that he should have a right to reside in the host state during that time.Footnote ⁵¹ In light of this, he suggested that, while Member States can in principle terminate a residence permit before an employment contract has expired, they cannot do so in order to address economic problems.Footnote ⁵²

The Court, following the AG Opinion, acknowledged the distinction in terms of purpose and rights of migrant workers under the different schemes and held that the Agreement did not in principle prohibit the refusal of Member States to grant a right to reside despite the existence of paid employment.Footnote ⁵³ It then qualified the statement by holding that such discretion on the part of Member States was allowed only if the initial reason for granting leave to remain no longer existed by the time the right to reside expired.Footnote ⁵⁴ If, however, a person was granted a work permit for a specific duration of time and a residence permit for a shorter period, then potential non-renewal of the residence permit would have to be justified by the protection of legitimate national interest, such as public policy, public security, or public health.Footnote ⁵⁵

In so doing, the Court construed a limited right to reside from the effective enjoyment of non-discrimination regarding working conditions. This right exists only if legitimate employment is ongoing, and only for migrants who initially entered the host state as workers. In practice, this means that Member States are allowed to terminate the right to reside of workers covered by Association Agreements who are in ongoing employment, but only where this termination is unrelated to economic considerations. Where Member States proceed in premature termination of the right to reside, non-discrimination leads to the application by analogy of the case-law on Turkish workers, as there is nothing differentiating foreign workers engaged in gainful employment of the same kind in a host state.Footnote ⁵⁶ Non-discrimination cannot be a basis of the right to remain on its own, but, as the Court held, in specific circumstances it might have effects on the right to remain by imposing specific limits on state discretion as regards migration.Footnote ⁵⁷

7.2.1 Renegotiating Cooperation to Limit the Scope of Equal Treatment

Given the economic and political circumstances of the 1990s, new objectives of regulation of migration in the Euro-Mediterranean region were formulated in the Barcelona conference.Footnote ⁵⁹ These sought to reduce migratory pressures through assistance to the host states, to ensure the rights of all migrants legally residing in the territories of Member States and to address illegal immigration.Footnote ⁶⁰ At this stage, the contribution of the migrant workers to the development of the EU meant that their rights could not be sidelined where they were employed in the Member States.Footnote ⁶¹ However, this economic contribution was no longer enough to allow support for the attribution of more extensive rights.

Against this backdrop, the new generation of Agreements signed with third countries in the region aimed at cooperation that would support ‘harmonious economic and social relations’ between the parties.Footnote ⁶² Among the agreements concluded, the ones with Morocco, Tunisia, and Algeria were the only ones including clauses that attributed rights to migrant workers.Footnote ⁶³ This was due to the fact that these were the main countries of the region that supplied migrant labour to the EU.Footnote ⁶⁴ Much like the previous Cooperation Agreements, the Euro-Mediterranean Agreements maintained the provisions on non-discrimination for all migrant workers as regards working conditions, remuneration and dismissal, and the equal treatment for them and their families in the field of social security.Footnote ⁶⁵ Further, the Agreements stated that their provisions would only cover lawfully residing TCN workers, and they must not apply to migrants working illegally in the territories of the host countries.Footnote ⁶⁶ Hence, illegality of residence was included explicitly as a condition which stripped an individual of rights.Footnote ⁶⁷ Furthermore, under a Joint Declaration to the Agreements, the parties declared that they would examine issues related to access to the labour market for the spouse and children of migrant workers.Footnote ⁶⁸ In the same Declaration they stated that equal treatment ought not to be invoked to obtain a renewal of a residence permit.Footnote ⁶⁹ This Declaration must have been made to dissociate any potential extension of the interpretation of El Yassini to the new Agreements of cooperation with the Mediterranean countries.

The Court has confirmed the direct effect of the equal treatment provisions of the new Agreements. In Echouikh, the Court held that Article 65 of the Euro-Mediterranean Agreement with Morocco should be interpreted in the same way as Article 41(1) of the Association Agreement that predated it.Footnote ⁷⁰ The Court also held that this Article was a specific expression of the principle of non-discrimination under Article 12 of the EC Treaty.Footnote ⁷¹ As to the Declaration, it was invoked in the case of Gattoussi, which concerned the rights of Tunisian nationals under the Euro-Mediterranean Agreement.Footnote ⁷² Despite its invocation, the analysis of El Yassini was fully confirmed by the Court, which maintained that the effective application of non-discrimination could not leave Member State discretion on migration unaffected. The Court found that, in principle, Member States were not prohibited from taking measures against the right to remain of TCN workers whom they had authorized to enter their territory for the purpose of employment.Footnote ⁷³ After all, immigration policy comes with a wide margin of discretion. But, as AG Ruiz-Jarabo Colomer suggested, this margin is limited by obligations of the Member States under Community law, as they cannot use migration measures as a justification for infringement of the free movement of workers framework or of international obligations of the Community.Footnote ⁷⁴

The Member States’ obligation to guarantee the effectiveness of non-discrimination demands the protection of legitimate expectations of the worker and, relatedly, legal certainty.Footnote ⁷⁵ This is why in cases where a Member State has granted migrant workers specific rights in relation to employment that are more extensive than the rights of residence conferred on them by that State, it cannot then reopen the question of that worker’s situation on grounds unrelated to the protection of a legitimate national interest such as public policy, public security, or public health.Footnote ⁷⁶ Overall, what we see in the Euro-Mediterranean Agreements is a more careful drafting and limitation of rights granted to migrant workers to avoid the potential extension thereof by rulings of the Court.Footnote ⁷⁷

In parallel to these evolutions, the cooperation with the ACP evolved by the transition from Lomé IV to Cotonou. Article 13 of the Cotonou Agreement referred more broadly to migration cooperation between the parties. Under Article 13(3), equal treatment was granted to legally employed migrant workers from ACP countries as regards working conditions, remuneration, and dismissal. There is no longer reference to equal treatment of migrant workers and their families as regards social security, which was previously found in the Declarations attached to Lomé. What is more, respect for human rights and the elimination of discrimination was reaffirmed under Article 13(1) based on existing obligations of international law. Finally, Article 13(2) of the Cotonou Agreement mentioned fair treatment of TCNs who are legally resident in EU Member States, and the objective of granting them rights and obligations comparable to citizens by integration policy; enhancement of non-discrimination in economic, social, and cultural life; and the development of measures against racism and xenophobia.Footnote ⁷⁸ Even if at first glance this provision seems more extensive, it can be argued that this is not the case. First of all, the fair treatment mentioned in Article 13(2) of the Cotonou Agreement is not equal treatment. Second, as regards the objectives of granting extra rights to migrants, these are framed more like guidelines in the cooperation between the parties, rather than clauses that could be directly invoked by individuals under EU Law.

7.2.2 Structuring Europe Agreements to Avoid Extensive Interpretations by the Court

Shortly after the fall of the Iron Curtain, and with the expressed will of the post-Soviet states to accede to the EU, the latter progressively entered into Association Agreements with most of the CEECs.Footnote ⁷⁹ These Agreements, which were called Europe Agreements to mark their political importance in reuniting Europe, were prepared so as to assist the economic reform of CEECs and to create closer political relations with the Community.Footnote ⁸⁰ The Agreements sought to establish a free trade area between the Community and the associated states, and were adopted in order to prepare the latter for their eventual accession to the Community.Footnote ⁸¹ A ten-year transitional period split into two five-year stages was envisaged in most of the Agreements.Footnote ⁸² The central focus of the Agreements was to assist the CEECs in their transition to market economy.Footnote ⁸³ Free movement of workers was not provided for in these Agreements. The liberalization of free movement would only be considered after the social and economic conditions of the acceding Member States was brought in line with those of the Community.Footnote ⁸⁴ Rather, certain minimum measures were put in place to improve the situation of migrant workers legally resident in the Member States.Footnote ⁸⁵ Specifically, the Agreements provided for the application of equal treatment regarding working conditions, remuneration, or dismissal.Footnote ⁸⁶ The Agreements did not impose an obligation to grant residence rights to family members of workers, and the right of family members to access the labour market was explicitly limited to the spouse and children of the worker during the worker’s stay.Footnote ⁸⁷ These limited rights of family members excluded seasonal workers or workers covered by bilateral agreements.Footnote ⁸⁸

The Agreements also left a great deal of discretion to Member States to take into account their labour market situation in the context of progressive attribution of rights to labour migrants from associated countries. Specifically, the only obligation for Member States was to preserve access to employment accorded under bilateral agreements for already legally resident workers.Footnote ⁸⁹ Potential improvements of the treatment of such workers or attribution of more rights could be considered by the Member States ‘if possible’.Footnote ⁹⁰ The Association Council had discretion to examine the granting of improvements, taking into account both the national labour market situation and the Community one.Footnote ⁹¹ Finally, following the end of the foreseen transitional period, the Association Council would examine other ways to improve the movement of workers in light of the social and economic conditions in the associated countries and the employment situation in the Community. These agreements, together with the identical provisions of the Stabilisation and Association Pact in the case of Croatia, set the basis for cooperation between the candidate countries and the EU until the conclusion of the enlargement, which is examined in Chapter 8.Footnote ⁹²

Similar protection for migrants is afforded by the Partnership and Cooperation Agreements concluded with Russia and several states from Southern Caucasus and Central Asia. These Agreements provide a basis for economic, social, financial, and cultural cooperation. They all provide for equal treatment as regards working conditions, remuneration, or dismissal of TCN workers originating from these states.Footnote ⁹³ However, they do not grant any rights of access to the labour market for the workers’ family, nor do they foresee a potential progressive attribution of more rights to migrant workers.Footnote ⁹⁴ Unsurprisingly, the similarly worded provision of the Cooperation Agreement with Russia granting equal treatment as regards working conditions has been held by the Court to be directly effective.Footnote ⁹⁵

In this we see that the cost of ensuring an extensive protection for migrants’ rights, as provided by the Court, limited the scope of application of non-discrimination only to the specific field of working conditions, remuneration, and dismissal. Short-term considerations related to risks of migration flows that could be caused by the underdevelopment of the CEECs at times when Member States did not have unlimited labour demands led to the limitation of the non-discrimination clauses in International Agreements concluded during this period. This has far-reaching implications in limiting the rights of migrants. However, as we shall see in Chapter 9, these implications can be contained in light of the incremental shaping of secondary law on the rights of migrants legally resident in the Member States. Before concluding this chapter, however, Section 7.3 will turn to the cooperation of the EU with economically developed European states. The analysis will point to the extensive attribution of rights to nationals coming from countries with higher development levels and thus less prone to migrating for economic reasons.