9.2.1 Attribution of Rights in Order to Maximize Economic Benefits

The rights of TCN migrants are defined horizontally in the Single Permit Directive and are differentiated based on the function of different categories of migrants for the EU economy. Specifically, all migrants enjoy the right to enter, stay, and move within the territory of the host state, and to exercise the activity for which their stay was authorized under the Single Permit Directive. Researchers are also allowed to teach next to their scientific work, while highly skilled workers are the only category of people who enjoy access to any type of employment after some time of legal residence. On the other side of the rights spectrum, seasonal workers are restricted to the exercise of a specific activity. However, to protect them from exploitation, the Directive recognizes their right to change employer within the specific field of activity in line with social considerations. The recast Single Permit Directive also creates a right to change employer under specific conditions, thereby enhancing the rights of all migrants legally resident in the Member States.Footnote ³⁹

Section 9.1 showed that security of residence is dependent upon the Directive from which TCN migrants draw residence rights. In most cases, security of residence is attached to a job contract and can be provided for a period of minimum and maximum time provided in the Directives. Until the recent revision of the Single Permit Directive, only highly skilled workers had a right to reside to find work. Specifically, student and researchers can enjoy residence as jobseekers for a limited period, and the reason behind this was to allow Member States to tap into the employment potential of the already trained and qualified workforce.Footnote ⁴⁰ A similar right to reside beyond the specific employment exists for highly skilled workers, who have the possibility of being unemployed for a period of time without risking the validity of their residence permit. After the revision of the Single Permit Directive, all legally resident migrants should enjoy such a right for a different time period dependent on the duration of their permit.Footnote ⁴¹

All TCNs legally resident in any Member State are also allowed to move within the EU territory for up to 90 days in any 180-day period. This movement refers to short-term mobility; it is based on Schengen, and it does not relate to the exercise of economic activity.Footnote ⁴² Free movement for the purpose of economic activity is provided only to specific categories of migrants. Specifically, the Researchers and Students Directive provides for temporary mobility to allow migrants to carry out their work in another Member State. Further, the Blue Card Directives and the Student and Researchers Directive allow for long-term mobility – that is, the possibility to move permanently to another Member State and take up work there.Footnote ⁴³ It is purely economic objectives that dictate the free movement rights of highly skilled workers and researchers based on the necessity of making the EU internationally competitive for such migrants and improving labour market efficiency.Footnote ⁴⁴ The mobility of researchers and highly skilled workers also creates free movement rights for their family members. Specifically, for migrants falling under the scope of the Researchers and Students Directive, the Blue Card Directive and the Long-term Residents Directive, family members enjoy intra-EU mobility rights in order to be able to follow their sponsor in case of move.

Notably, economic needs served by the admission of researchers and highly skilled workers are the reason behind the introduction of derogations from the Family Reunification Directive. Specifically, the Blue Card Directives and Researchers and Students Directive include more favourable provisions on family reunification for the categories of migrants falling within their scope. These more favourable provisions, which cover not only the conditions of family reunification but also the rights enjoyed by family members, are linked to the need to make the EU more attractive as a destination to these particular migrants.Footnote ⁴⁵ Indicatively, access to employment is easier for family members of highly skilled workers and researchers. The analysis in Section 6.2.1 showed that access of family members to employment can be limited to ensure that their migration does not become an economic liability for Member States in times of recession.Footnote ⁴⁶ This limitation does not apply to Blue Card holders and researchers. The Blue Card Directive includes a derogation from such limitation and demands the direct access of family members to employment.Footnote ⁴⁷ The Researchers and Students Directive on the other hand provides that access of family members to employment should not be limited, unless exceptional circumstances exist, such as particularly high levels of unemployment.Footnote ⁴⁸ Overall, in derogating from the minimum standards of the Family Reunification Directive and introducing more relaxed conditions for reunification and more extensive rights for the specific groups of migrants, the objective is no longer ensuring migration in dignity for the worker. Rather, family reunification is used instrumentally as a means to attract migration of specific kind.

In addition to this, the Blue Card Directive is the only instrument that derogates from the Long-term Residents Directive by granting preferential conditions for access to the long-term resident status. Specifically, the 2009 Directive provided that the Blue Card holder and their family members could accumulate periods of residence in different Member States in order to fulfil the five-year duration requirement.Footnote ⁴⁹ It also provided that the long-term resident status would not be lost in case of absence of the highly skilled worker from EU territory for a period of twelve to eighteen months, which could be extended to twenty-four months if Member States preferred.Footnote ⁵⁰ Economic considerations behind this differentiated access of Blue Card holders to the long-term resident status appear in the following way. The EU needs highly qualified personnel to maintain growth, so it is shaping a framework where such highly qualified personnel get easier access to a set of rights, in order to make the EU an attractive destination for these workers.Footnote ⁵¹ This is fully understandable in terms of marketing the EU as an attractive destination for specific migrants; however, it is highly questionable from the perspective of non-discrimination in the adoption and implementation of EU law. Despite the Commission’s recent suggestion to allow all migrants to accumulate periods of residence in different Member States in order to acquire the long-term residence status, the Council’s position was that such accumulation could only extend to all highly skilled workers in general.Footnote ⁵²

In this sense, it becomes clear that the legal system put in place attributes more rights to those who are seen as crucial for the development of the EU project. In parallel, the economic fears of Member States, their short-term approach to migration, and the possibility to attract such individuals by parallel national schemes has led to the introduction of so many conditions for the exercise of mobility rights that the economic objectives pursued fail to be achieved in practice. The requirements for cross-border movement under both the Blue Card Directive and the Researchers and Students Directive are very close to requirements for entry, thereby hampering the objectives of the instruments, which is to abolish obstacles to mobility as a means to promote growth and relatedly to align the regulation of migration to the economic sustainability of the EU. Similar problems appear in relation to the pursuit of social objectives in the instruments. As Section 9.2.2 will discuss, the instruments regulating the rights of TCN migrants offer a diluted version of equal treatment in EU law.

9.2.2 The Dilution of Equal Treatment in Secondary Law

Equal treatment between TCN migrants and nationals of the Member States is guaranteed in all the relevant Directives. However, unlike the broad clauses inserted in Association Agreements concluded in the 1970s and 1980s, the framework in place now provides detailed enumeration of the areas where equal treatment must be granted, as well as the acceptable limitations to these areas.Footnote ⁵³ The force of general equal treatment clauses in EU law has shaped very extensive protection for individuals.Footnote ⁵⁴ In view of this, and of the extensive interpretations of the Court on equal treatment of migrants, it should not come as a surprise that Member States tried to restrict the formulation of equal treatment in the relevant Directives. Table 9.4 shows the areas where the Directives provide for equal treatment rights, as well as the potential limitations that can be introduced to equal treatment.

First of all, unlimited equal treatment is guaranteed regarding working conditions; however, there is a lack of coherence in the way this is framed in the relevant Directives.Footnote ⁵⁵ Despite the different framing, it is safe to assume that the right applies to all legally resident migrants without differentiation, as it constitutes an expression of Article 13 CFR.Footnote ⁵⁶ Equal treatment as regards recognition of professional qualifications is also provided in all the Directives.Footnote ⁵⁷ In addition, all the Directives provide equal treatment as regards access to advice services afforded by employment offices.Footnote ⁵⁸ This should not come as a surprise in light of the continuous emphasis in different Commission documents on training the existing workforce to correspond to new needs and on ensuring that labour needs are covered by TCNs already resident and active in the internal market.Footnote ⁵⁹ Finally, all the Directives also provide for freedom of association and affiliation. The Seasonal Workers Directive makes explicit reference to the right to strike and take industrial action, including the right to negotiate and conclude collective agreements. In any case, the relevant right is a specific expression of Article 12 CFR, and as a result, it should not be differentiated between different categories of TCNs, as the right is guaranteed to everyone regardless of their nationality.Footnote ⁶⁰

As to the rest of the areas where equal treatment is required, they appear with different limitations and variations. Some can be explained due to other rights enjoyed by TCNs (whether they enjoy mobility rights or not, and what is the status under which they entered), while others are firmly based on economic considerations of averting risks from migration. Specifically, in the area of education, limitations appear in all the instruments, allowing Member States to exclude study grants from equal access to migrants.Footnote ⁶¹ What is more, Member States are given the possibility to set conditions of access to university and higher education.Footnote ⁶² In the Single Permit Directive, the text mentions appropriate language proficiency, payment of fees, or specific educational prerequisites as possible conditions, and Member States can also limit access to education if it is not linked to the specific employment activity of the TCN.Footnote ⁶³ A similar possibility on limiting equal treatment regarding access to education or training directly linked to the employment activity also exists in the Seasonal Workers Directive.Footnote ⁶⁴ Finally, the Single Permit Directive provides for the possibility to limit the application of equal access to education to TCNs who are employed, or are registered as unemployed, and to exclude students.Footnote ⁶⁵ In the area of education, the Fitness Check conducted in 2019 by the Commission suggested:

Arguably, even such limitations are not really justified if we take into account the social aims pursued by the Directives. Apart from aligning migration with the economic objectives of the EU, the relevant instruments seek to secure fair treatment for migrants and to achieve some kind of social progress in the form of rights attributed to migrants. The emphasis put on education as part of the integration policies pursued at EU level to ensure social cohesion necessitates full equal treatment as regards access to education.Footnote ⁶⁷ That is, of course, since the aim of regulating migration is not only meeting the economic sustainability objectives but also the social ones.

Another area of tension is access to social security, social assistance, and social protection, which are differentiated between the categories of TCNs. The Legal Fitness Check suggested that the limitation of access to social security in employment-related Directives is justified, as this is linked to the condition that migrants have sufficient resources to not become a burden.Footnote ⁶⁸ Equal treatment applies to social security as a recognition that workers contribute by their work and tax payments to public finances, and to serve as a safeguard against unfair competition that may result from exploitation.Footnote ⁶⁹ Social assistance, in contrast, was deliberately excluded from the relevant Directives because incoming migrants should have sufficient resources not to require financial support.Footnote ⁷⁰ Social assistance and social protection is secured only for long-term residents, but even in their case, it can be limited to core benefits. This was not what the Commission aimed for in the original proposals. As regards the Directives that also provide rights to free movement in the EU, limitations can be introduced, and equal treatment can be limited to the Member State where the migrants have their registered place of residence.Footnote ⁷¹

It should be noted that all these Directives operate within the context of Article 20 CFR, which provides for general non-discrimination rights within the scope of EU law. Unequal treatment is thereby allowed to the extent it can be justified. Relatedly, the Legal Fitness Check suggested that EU migration law, in the way it is formed through the relevant Directives, could be described as a ‘fine-tuning of legitimate differentiated treatment’.Footnote ⁷² Looking at the way equal treatment is dissected and diluted in the relevant provisions, it is clear that limitations are inserted in order to avoid repercussions of granting rights to public finances. In cases where equal treatment comes with no cost for national economies, there is no reason to discriminate. However, in light of the parallel pursuit of economic and social sustainability as manifested in primary law objectives, the question that remains open is to what extent social cohesion can be guaranteed and when equal treatment is intentionally limited to deprive migrants from EU law protection.Footnote ⁷³ This limitation of social rights of TCN migrants does not align well with social sustainability objectives. This is especially because all these TCN migrants come within the scope of EU law because they are admitted as workers and thereby contribute to the project of growth.

9.2.3 Erasure of Equal Treatment and Informalization of the Relation of EU with Third Countries

In parallel to the framework of admission and rights shaped for all legally resident migrants discussed in Section 9.2.2, in this period we witness the erasure of equal treatment clauses in the Agreements concluded by the EU with third countries, and the further informalization of cooperation with third countries in the area of migration.

The Stabilisation and Association Agreements (SAAs) concluded with many Western Balkan countries were the only agreements that set up some minimum rules on equal treatment for workers legally employed in the Member States with regard to working conditions, remuneration, or dismissal.Footnote ⁷⁴ These Agreements did not include equal treatment on social security and did not provide for any kind of right to entry or access to the labour market. This is so even though such Agreements were signed as pre-accession instruments. What is more, the wording of the relevant provisions is different from those of the Euro-Mediterranean Agreements, as they stipulate that equal treatment must be granted subject to the conditions and modalities applicable in each Member State. This could be understood as an attempt to limit the direct effect of the relevant provisions. The identical wording was used in Europe Agreements, and was found by the Court to have direct effect.Footnote ⁷⁵ Even though there is no case-law on SAAs, there is no reason to assume that the Court would follow a different approach. In addition, the SAAs grant rights of access to the labour market to the worker’s spouse and children who are legally residing with them during the worker’s authorized stay of employment.

Aside from these Agreements, which were signed as pre-accession instruments, the approach of the EU to labour migration from third countries has undergone a massive shift. With a general system of admission in place for different categories of TCN workers, development cooperation during this period focused on preventing the entry of all those who attempt to join the EU irregularly. The tensions in the Mediterranean region are perceived as a crisis to be addressed by flexible non-binding arrangements.Footnote ⁷⁶ The objective of cooperation has not changed in so far as its declared focus is still on protection of legal migrants, the development potential of migration for the host state, and combatting illegal migration.Footnote ⁷⁷ However, these objectives demand different legal means of cooperation in light of the evolution of EU law. Relatedly, the EU no longer negotiates any binding instrument that can create channels of admission or rights for nationals from specific third countries. Rather, it emphasizes addressing the root causes of migration and creating better living conditions in the region.Footnote ⁷⁸

During the relevant period, and in parallel to the shaping of an autonomous EU migration framework, the EU was also dealing with the effects of the 2008 economic crisis with diverse repercussions for national economies. In this regard, it would be hardly imaginable for Member States to support binding instruments that created cooperation on admission and rights for workers from third countries. Instead, what they wanted to promote was smart planning that would allow the EU to admit labour migration when needed, while maintaining cooperation with the Mediterranean countries with a view to assisting their development. The means chosen to do this was to informalize cooperation based on a differentiated dialogue with each Mediterranean country.Footnote ⁷⁹ In so doing, Migration Partnerships which are soft-law instruments are now preferred so as to guarantee the EU can maintain regular migration channels so that it can have the manpower it needs, while at the same time maximizing the impact of migration for development.Footnote ⁸⁰ Mobility Partnerships are signed in the form of political declarations that set the goals for migration cooperation between the EU and third countries. The EU has signed Mobility Partnerships with Morocco, Tunisia, and Jordan in the Euro-Mediterranean region.Footnote ⁸¹ These declarations do not affect the obligations of the parties under the Euro-Mediterranean Agreements.

In conclusion, the evolution of the framework of cooperation with third countries on migration has undergone a major shift which is based on changing geopolitical circumstances and labour needs in the EU. The more intense labour needs were, the more rights were attributed to migrant workers under Association Agreements. At the same time, we need to remember that, even though in first reading it might look like the rights of such migrants are excluded from EU law, this is not the case; rather, the basis of protection has changed. This means that migrant workers legally resident in the EU and coming from countries in the Euro-Mediterranean no longer enjoy rights on the basis of Association Agreements, but rather on the basis of EU secondary law. Hence, despite the reconfiguration of cooperation, there is a constant understanding on the part of the EU that the rights of migrant workers located in EU territory are non-negotiable due to their active contribution to the EU development project. Rather, what remains negotiable is the regulation of entry or, perhaps, the emphasis on avoiding entry to ensure that no more will come than the EU is able to make use of. The functional role of the migrants, which set the basis for their rights, is now showing its ugly face, by ensuring the exclusion not of those who cannot contribute, but of those whose contribution is no longer needed. Following the examination of the legislative evolutions of this period, Section 9.3 will turn to the consolidation of social rights in the case-law of the Court.

9.3.1 The Judicial Reconstruction of Social Rights of Migrant Workers

Against the incoherent economic obsession with conditioning the rights of migrants in secondary law so that they do not pose risks for the economy, the Court has put forward a positive vision related to the rights all migrants should enjoy under EU law. This concerns not only migrants covered under secondary law but also those whose residence status in Member States is irregular. Specifically, in Tümer, the Court had to interpret the scope of application of Directive 80/987/EEC on the protection of employees in the event of insolvency of their employer.Footnote ⁸³ Tümer, a Turkish national living in the Netherlands, had worked for a company that was declared insolvent. His application for insolvency benefit was rejected on the ground that he was not legally resident in the Netherlands. In that case, the Netherlands argued that since the Directive was based on Article 137 EC, which provided the Union with competence to adopt Directives with a view to achieving social objectives related to the improvement of working conditions, it could not apply to TCNs, even regularly resident ones.Footnote ⁸⁴ If regularly resident aliens were to be protected, the state argued that the concept of employee could be construed under national law to exclude irregularly resident TCNs.

AG Bot suggested that excluding TCN workers from protective measures adopted for employees would not be compatible with the purpose of the EU social policy, as it would encourage the recruitment of foreign labour in order to reduce wage costs.Footnote ⁸⁵ Additionally, with reference to Germany and others v Commission, he emphasized that the Court had already acknowledged the relation of the Union’s social policy to the policy that applied to workers from third countries.Footnote ⁸⁶ The AG proceeded to suggest that the crucial factor triggering obligations under the relevant Directive was the employment relationship of a person to an insolvent employer.Footnote ⁸⁷ Importing a condition of nationality in the scope of the Directive would go against its objective to guarantee all employees in the EU a minimum level of protection.Footnote ⁸⁸ He then went on to examine whether there was discretion on the part of Member States to exclude irregularly resident migrants. In this examination, he suggested that since the employee status was the crucial status, making it conditional to legal residence would go against non-discrimination.Footnote ⁸⁹ The AG suggested that irregularly resident TCNs who had worked and paid contributions were in a comparable situation to other employees, and there was nothing to justify a differentiated treatment.Footnote ⁹⁰

The Court confirmed the AG’s approach and noted that EU social policy was concerned with promoting the living and working conditions of both nationals of the EU Member States and TCNs.Footnote ⁹¹ It held that Member States could not define the term ‘employee’ in such a way as to undermine the social objective of the Directive.Footnote ⁹² As a result, the Directive was found to preclude national laws, such as the Dutch one, which strip irregularly resident TCNs of protection. As long as somebody is in employment, the social rights they derive therefrom should not be undermined because their residence is not legal. This case is significant in showing the application of EU social policy for all migrants engaged in the EU development project. What is more, it is crucial for understanding how the economic contribution made by migrants’ work is at the heart of the protection afforded by EU law.

Next to this case, the Court has also handed down rulings reconstructing equal treatment and limiting the effects of secondary law for the rights of migrants. The line of reasoning that underlies the relevant case-law was set in Kamberaj, which concerned discriminatory conditions for access to a housing benefit by a long-term resident. In that case, the Court held that while the provisions of the Long-term Residence Directive provided for equal treatment in access to social security, social assistance, and social protection as defined in national law, these concepts could not be defined unilaterally by Member States without the risk of undermining the effectiveness of the Directive.Footnote ⁹³ The interpretation of what constitutes social security, social assistance, and social protection under national law needs to comply with the Charter. Article 34 CFR guarantees equal treatment regarding access to specific social benefits in order to guarantee decent living to all those who lack sufficient resources.

In light of this, the Court held that national courts should interpret the relevant concept of social assistance in the Long-term Residents Directive in light of the Charter in order to assess whether benefits of different kinds fell under the categories of benefits where equal treatment should be provided.Footnote ⁹⁴ The Court further stated that the derogation allowed under Article 11(4) of the Directive should be interpreted strictly in light of the social purpose of integration.Footnote ⁹⁵ It also clarified that the provision of the Directive which allowed the limitation of equal treatment only to core benefits could not be invoked on a case-by-case basis. Rather, such a derogation needs to be expressed clearly at the time of implementation of the Directive in national law.Footnote ⁹⁶ It further suggested that the meaning and scope of core benefits for the purposes of equal treatment should be construed with reference to the purpose of integration as the objective for long-term residents.Footnote ⁹⁷ It thus held that core benefits are benefits that enable individuals to meet their basic needs such as food, accommodation, and health, and should be aligned with the minimum benefits covered by the Charter.Footnote ⁹⁸

A similar reasoning was followed by the Court in relation to rights under the Single Permit Directive in Martinez Silva.Footnote ⁹⁹ In that case, a migrant worker was excluded from a grant that was provided to households with at least three minor children and income below a minimum amount. The Single Permit Directive provides for equal treatment not in line with national law, but with reference to social security as defined in Regulation 883/2004 and, more specifically, the family benefits covered under Article 3(1)(j) thereof.Footnote ¹⁰⁰ The Court found that the benefit at issue fell under Article 3(1)(j) of Regulation 883/2004, with reference to previous case-law where it had held that family benefits covered all kinds of benefits which are automatically granted to families on the basis of objective criteria without discretionary assessment of personal needs, and which are intended to meet family expenses, as a public contribution to the family’s budget to alleviate the burdens involved in the maintenance of children.Footnote ¹⁰¹ Once more, the Court pointed to the possibility to derogate from equal treatment provided in the Directive, but it held that such a possibility existed only if the Member State explicitly chose so at the transposition of the Directive.Footnote ¹⁰²

The line of case-law developed in Kamberaj for long-term residents, and applied in Martinez Silva under the Single Permit Directive, has been since confirmed regarding different types of benefits claimed by TCNs.Footnote ¹⁰³ The Court has followed a clear line of reasoning in promoting fair treatment for this group. When it comes to core benefits, to determine if they need to be granted under equal treatment conditions, Member States need to comply with the Charter. If a benefit serves the purpose set out in Article 34 CFR, then TCNs can in no case be excluded therefrom. The central evaluation then seems to concern the purpose of the benefit: does it aim at making life liveable and ensuring a decent existence for all? If so, it needs to be granted to long-term residents in light of the objective of integration, and to all migrants covered under the Single Permit Directive in light of the objective of ensuring fair treatment. Then as regards non-core benefits, Member States must explicitly exclude migrants therefrom by derogating from equal treatment when they transpose the relevant Directives. It is only in such cases that the Court considers that the relevant discriminatory attribution falls within national law and the measures cannot be reviewed for compliance with the Charter.

In this case-law, we see that the Court puts forward the social objectives served by secondary law (integration of long-term residents and fair treatment) not as a by-product of the economic contribution of the migrants, but rather under a positive vision of social justice in line with the social sustainability objectives of primary law. In doing so, the Court connects the protection of migrants under EU law with the evolution of the legal order and the incorporation of human rights guarantees under the Charter. By correlating the derogations allowed under secondary law to the provisions of the Charter, it dictates minimum safeguards of fundamental rights protection, thereby limiting the space for derogation by Member States and the EU legislator.Footnote ¹⁰⁴

9.3.2 Social Rights Compensating for the Lack of a Right to Remain for Turkish Workers

A similar extension of social rights has taken place in relation to social security rights of Turkish workers. In the relevant case-law, it is not the Charter that directed the extensive interpretation of the Court, but rather an understanding of rights as compensatory for the work somebody has carried in the EU, in cases where EU law does not grant a right to remain and enjoy such rights in EU territory.

This was the case in Akdas, where the Court found that non-discrimination should lead to exportability of benefits for Turkish workers, where the same does not apply to EU workers.Footnote ¹⁰⁵ Akdas, a Turkish worker in the Netherlands, became incapacitated to work and obtained a supplementary benefit to ensure a minimum income level. He returned to Turkey, where he retained the benefit under Article 39(4) of the Additional Protocol to the Agreement. Dutch law was eventually amended, leading to a progressive withdrawal and termination of the benefit for all workers who had no residence in the Netherlands. The question addressed to the Court was whether such withdrawal for recipients who resided outside the Member State went against Article 6(1) of Decision 3/80.

The Court acknowledged that the wording of the Decision did not tie residence in the host state to continuation of benefits of such kind.Footnote ¹⁰⁶ At the same time, EU secondary law on social security for EU migrants had been amended and had introduced an exception to the exportability of benefits like the one in question.Footnote ¹⁰⁷ This meant that EU migrants who found themselves in circumstances like those of Akdas would have the benefit withdrawn if they moved outside the Netherlands. The Court held that such a difference in treatment would not be incompatible with Article 59 of the Additional Protocol to the Agreement, which required that Turkish workers were not treated more favourably than EU ones.Footnote ¹⁰⁸ In order to justify this, the Court invoked the limited residence rights of Turkish nationals. It pointed out that Turkish migrants, unlike EU ones, had no right to remain in the host state if they could no longer contribute to the labour force.Footnote ¹⁰⁹ For them, there is no option to maintain residence and, thereby, the benefit. According to the Court, the fact that they have no right to stay because they can no longer contribute with their labour power should not be construed as a voluntary conduct that leads to loss of their rights.Footnote ¹¹⁰

What happens where the Turkish worker is not forced to leave the territory of the host state? This situation was addressed by the Court in Demirci, where a Turkish worker requesting the continuation of exportability of the benefit had acquired Dutch citizenship next to the Turkish one.Footnote ¹¹¹ In this case, as AG Wahl explained, the objective of Article 6 of Decision 1/80 is to compensate workers for the ‘the misfortunes they have suffered in the host Member State’, an objective which is reasonable precisely due to the contribution the migrant workers have made in the host state.Footnote ¹¹² Following the AG, the Court held that such compensation is no longer needed where the worker manages to acquire the nationality of the host state.Footnote ¹¹³ An opposite conclusion would mean that Turkish workers who acquire the nationality of the Member State would be treated more favourably both compared to Turkish workers who no longer belong to the labour force and have no right to reside, and to nationals of Member States, who would have to maintain their residence in the Netherlands to receive the benefit.Footnote ¹¹⁴The Court has also ruled on cases where the acquisition of nationality of the host state by a worker did not imply the loss of rights derived from the Turkish worker status. This was the case in Khaveci and Inan, which concerned family reunification rights for Turkish workers naturalized in the host state.Footnote ¹¹⁵ The Court based the differentiation between Demirci and Khaveci and Inan on the fact that the workers in question had the possibility to enjoy the benefit, if they maintained residence in the Netherlands, and on the social purpose of Decision 1/80, which created rights for family members and not for the workers themselves.Footnote ¹¹⁶

The significance of this case-law and, relatedly, its financial repercussions for Member States led to a revision of Decision 3/80 in order to limit this extensive protection.Footnote ¹¹⁷ Despite the revision, some observations are to be drawn from the consistently extensive application of social security rights in the case-law. There is an implicit understanding by the Court that Turkish workers who can no longer contribute their work and are thus forced to leave the host state, not being able to claim any residence right from EU law, need to be compensated and extensively protected. The basis of such protection is none other than non-discrimination. The extension of social security rights to compensate for a lack of a right to remain should be seen in light of the parallel pursuit of economic and social objectives by EU law. Migrants contribute to economic development by their labour and are granted rights as a compensation for such labour in a legal order constantly guided by the pursuit of economic and social sustainability.

9.3.3 Social Objectives and Economic Risks behind Family Reunification

Another instrument which highlights the intimate connection of the economic and social pillars of sustainability pursued in the regulation of migration is the Family Reunification Directive. Section 6.2.1 outlined the social objectives served by its adoption. However, the Directive does not only regulate the conditions under which family reunification should take place; more importantly, it creates a right to family reunification for all TCNs who fall within its scope.Footnote ¹¹⁸ This was acknowledged by the Court in its case-law during the period under review.

In Parliament v Council, the Court held that the Family Reunification Directive goes further than international human rights instruments on the protection of family life for migrants.Footnote ¹¹⁹ Specifically, looking at international human rights law, the Court confirmed that, as a rule, there is no right for aliens to be allowed to enter the territory of a Member State for the purpose of family reunification and the corresponding protection of family life. Contrary to international human rights law and going beyond it, the Directive creates positive obligations for Member States to authorize family reunification if the conditions stated therein are fulfilled.Footnote ¹²⁰ Relatedly, the Court has held that any limitations to the rights conferred by the Directive should be interpreted strictly and has used the Charter as a basis of review of restrictive national practices. In the respective case-law the balancing of economic and social objectives conditioning the rights attributed under the Directive is clear.

Specifically, the Family Reunification Directive provides that Member States may require evidence that the sponsor has accommodation regarded as normal for a comparable family, health insurance, and stable and regular resources to maintain themselves and their family, so they do not become a burden to the social assistance system of the Member States.Footnote ¹²¹ In Chakroun, the Court elaborated on how stable and sufficient resources should be perceived and if this requirement should exclude migrants who may be eligible for certain types of social assistance.Footnote ¹²² Taking the right to entry created for family members under the Directive as a starting point, the Court held that family reunification was the general rule. As a result, the conditions provided for it should be interpreted strictly.Footnote ¹²³ The Court further pointed out that the margin of appreciation of Member States should not be exercised in such a way as to undermine the objective of the Directive, namely to promote family reunification, and its effectiveness.Footnote ¹²⁴ This strict interpretation in line with the objective of the Directive also needs to be aligned with the protection of fundamental rights, and specifically respect for family life, as protected by the Charter and the ECHR.Footnote ¹²⁵ In this context, the Court interpreted the requirements of Article 7(1)(c) of the Family Reunification Directive as meaning that the concept of social assistance referred to assistance which compensated for lack of stable, regular, and sufficient resources and could not cover assistance that enabled exceptional or unforeseen needs to be addressed.Footnote ¹²⁶ This was confirmed by the Court in O and S, this time mentioning the need to align the interpretation of the Directive not only with Article 7 CFR but also with Article 24 on the rights of the child.Footnote ¹²⁷

Subsequently, in Khachab, the Court had the opportunity to clarify the meaning of regular and stable resources.Footnote ¹²⁸ Following the line of reasoning established in Chakroun, the Court emphasized that this requirement should be interpreted in light of Article 7 CFR and with a view to promoting family life.Footnote ¹²⁹ The presence of stable and regular resources implies the existence of a degree of permanence and continuity, allowing the Member State to assess whether the sponsor has the prospect of maintaining the resources for a period after the submission of the application. This prospective assessment was thought to be in line with the system of the Directive, which allows for refusal of renewal where the sufficient resources criterion is no longer satisfied.Footnote ¹³⁰ What is more, this interpretation was aligned by the Court with the objective of Article 7(1) of the Family Reunification Directive – that the sponsor or his family should not become a burden on the social assistance system of the Member States during their stay.Footnote ¹³¹ The assessment, however, should take place in line with the principle of proportionality, and on a case-by-case basis in accordance with the requirement of Article 17 of the Directive.Footnote ¹³²

As with the case law on EU migrants, the Court acknowledged the limits set by the legislator on the rights of TCN migrants in light of the economic objectives of the EU project. Nevertheless, it firmly grounded the review of such limitations in the changed architecture of the EU legal order, and it emphasized the need to guarantee the rights of individuals under EU law in light of the Charter. The use of the Charter in these cases has a double function. First, it consolidates the constitutional architecture of EU law. Second, it appears as a particular manifestation of the social objectives of EU law, and relatedly of how the social pillar of sustainability is pursued by a strong grounding on human rights considerations.

9.3.4 Security of Residence Promoting the Social Objectives of the EU

The Court has followed a similar approach also in relation to interpretation of the provisions of the Long-term Residents Directive. The long-term resident status is attributed to all migrants residing in a Member State for a period of five years under Article 4(1) of the Directive. However, not all types of legal residence count towards the fulfilment of the five-year duration criterion. Specifically, the Directive excludes certain categories of legal residence based on the presumption that the migrant in question has no intention to stay in the Member State for an extended period of time.Footnote ¹³³

The Court has had the opportunity to define what is meant by stay on temporary grounds and, thus, what types of permits are excluded from the calculation of the residence duration.Footnote ¹³⁴ In light of the purpose of integration served by the Directive, the Court held that the permits excluded are based on the consideration that their holders do not seem to have prima facie any intention to settle in the EU for the long term.Footnote ¹³⁵ In other words, their legal status objectively represents an intention to exist in the host Member State for a limited period of time. When it comes to national residence permits that are limited (for example, in terms of access to a specific occupation), but do not prevent the long-term residence of the migrant, these cannot be excluded from the calculation of the period necessary for the long-term resident status.Footnote ¹³⁶ If they were excluded, this would allow much leeway to Member States, in consequence depriving the Directive of its effectiveness.

While the duration of residence is the main criterion for access to the status, the Directive also provides for the following conditions.Footnote ¹³⁷ Applicants for long-term residence permit need to prove that they have stable and regular resources, and health insurance, and may also be required to comply with integration conditions. In these requirements, we see that the social aim of furnishing security of residence to migrants who have stayed for long in the EU is tied to guarantees that they will not become a burden on the host state. The Court has also engaged with the criterion of stable and regular resources. In the relevant case-law, it emphasized duration of residence as the central criterion of the Directive, which shows that the TCN has managed to put down roots in the host state.Footnote ¹³⁸ Consequently, it held that while the concept of resources may be interpreted by analogy to the relevant concept in Directive 2004/38, it should have a different scope.Footnote ¹³⁹ This is because first, the acquisition of the long-term resident status is definitive, so the interpretation of the resources condition should be in line with the purpose of preserving the social assistance system of the Member States.Footnote ¹⁴⁰ Second, the text of the relevant provision mentions that resources should be stable and regular, compared to Directive 2004/38 which only mentions stable. In addition to these reasons of differentiation, AG Saugmandsgaard Øe added another one, on which the Court stayed silent.Footnote ¹⁴¹ That is the paradoxical formulation of the relevant instruments in a way that allows Member States to withdraw the residence permit of a EU migrant who no longer has sufficient resources if they do not have permanent residence status, while such withdrawal is not foreseen for long-term residents.Footnote ¹⁴² In view of this, the more exacting economic conditions for access to protection are based on the fact that the social protection enjoyed by long-term residents cannot be taken away when they become economically redundant. In this regard, the Court suggested that the relevant requirement meant that Member States could evaluate the resources on the basis of their nature and regularity, and this would imply an assessment of sufficiency and sustainability of resources, rather than an assessment of their origin.Footnote ¹⁴³

The Court has also ruled on the conditions of loss of the relevant status. Article 9 of the Long-term Residents Directive provides that the status may be lost due to absence from the EU territory for a period of longer than twelve consecutive months. The Court has held that since the Directive creates a right to a status whose nature is permanent, the rules leading to the loss of such status should be interpreted strictly and that the physical presence of a migrant in EU territory is sufficient to interrupt their absence from the territory.Footnote ¹⁴⁴ This interpretation was also supported both by the purpose of the Directive to bring the rights of long-term residents as close as possible to those of EU nationals and by the need to achieve legal certainty for the migrants concerned.Footnote ¹⁴⁵

The social purpose of this Directive as a reason for more extensive protection has also been identified by the Court. In Commission v Netherlands, the Commission took action against the Dutch legislature, which imposed excessively high charges for the acquisition of long-term resident status.Footnote ¹⁴⁶ AG Bot suggested that the margin of manoeuvre of Member States should be limited by the purpose and effectiveness of the Directive, and by respect for fundamental rights.Footnote ¹⁴⁷ Relatedly, he pointed out the double purpose served by migrant integration under EU law: to promote social and economic cohesion by granting them rights, and to contribute to the attainment of the internal market by granting them mobility rights.Footnote ¹⁴⁸ To the AG, the charges imposed by the Dutch legislation constituted an indirect means of limiting the exercise of the rights conferred by the Directive, and could lead to discrimination against migrants who did not have sufficient financial resources.Footnote ¹⁴⁹ He also emphasized the comparability of long-term residents to EU migrants, and failed to see how such a difference in treatment would be justified on the basis of objective reasons.Footnote ¹⁵⁰

In light of the arguments put forward by the Netherlands, the AG also had the possibility to elaborate on the rights created by primary and secondary law for EU and TCN migrants. Specifically, the Dutch government argued that a residence permit granted under secondary law created rights for the migrants, whereas a residence permit granted to EU migrants was merely declaratory.Footnote ¹⁵¹ The AG suggested that such a differentiation could no longer hold in line with the development of EU law.Footnote ¹⁵² While it is true that for EU migrants a residence permit has declaratory effect, the same is true for TCN migrants, in the sense that secondary law directly confers rights on them.Footnote ¹⁵³ The Court emphasized the purpose of the Directive appearing in Recitals 4, 6, and 12, which is to contribute to the integration of migrants and to the effective attainment of the internal market as an area of free movement of people.Footnote ¹⁵⁴ In line with the AG, it confirmed that the fulfilment of the conditions of the Directive created a right for migrants to obtain the long-term resident status. Member States cannot impose charges which are so high as to have the object or the effect of creating an obstacle for TCNs who are entitled to obtain that status, otherwise the objective and spirit of the Directive would be undermined.Footnote ¹⁵⁵

Overall, the extensive interpretations of the Court on this instrument had two consequences: it ensured the social protection of long-term residents in the Member States, and it shaped the Commission proposal for revision of secondary law with closer attention to fundamental rights considerations.Footnote ¹⁵⁶

9.3.5 Social Rights for Migrant as an Indirect Way of Promoting the Constitutional Elements of EU Law

Primary law on the regulation of migration does not create obligations on the substantive conditions that should inform migrants’ rights. The shared competence of the EU on migration is defined in the Treaties by reference to the areas where the EU can adopt legislation. At the same time, the Lisbon Treaty refers to fair treatment and solidarity as principles that should guide the adoption of such legislation. The Court has not referred to the relevant Treaty provisions when reviewing secondary legislation. Rather in the case-law analysed in the previous sections, the Court consolidated the rights of TCN migrants by reference to the Charter. Specifically, the Court consistently held that secondary law creates EU law rights for migrants, the limitations of which should be interpreted strictly and reviewed for compliance with the Charter.

At this stage, it should be noted that the Court has dealt with very few cases regarding the right of first admission of a migrant. In such cases it has been reserved. Despite recognizing the creation of a right to entry in accordance with the conditions of the relevant Directive, the Court does not normally push for review of state discretion. However, when it comes to migrants who are already in EU territory, the Court acknowledges the importance of fundamental rights protection for all individuals who fall within the scope of EU law. Such rights are extended in light of the Charter, which completed the constitutional architecture of the EU. In the relevant case-law, it can be argued that it is not only the social objectives of EU law that are promoted by the Court’s interpretation and emphasis on the Charter, but also the integration of the EU legal order.

By this, I mean that in the first years of the Community project, the Court used primary law with an emphasis on economic freedom as a means to promote the integration of Member States and to fortify the Community legal order in light of a constitutional end that was absent from the Treaty text.Footnote ¹⁵⁷ With the political ambition of the EU project under stress, the failed Constitutional Treaty, and the reformed architecture of the EU legal system with the adoption of the Charter, the Court turned to another instrument that could advance integration, namely the Charter. It has consistently made use of the provisions of the Charter to review secondary law on migration and limit state discretion in an area of shared competence. The Court’s interpretation on the relevant secondary law is framing the space of fundamental rights policy exercised by the EU legislature. Both the revision of the Single Permit Directive and the proposed revision of the Long-term Residents Directive were presented by the Commission with stronger emphasis on fundamental rights protection for migrants in line with the case-law.Footnote ¹⁵⁸

This approach of the Court stands in stark contrast to the interpretations followed on EU migrants’ rights, where it has accepted a consolidation of balancing of economic and social objectives by the EU legislature as expressed in Directive 2004/38. The differentiation could also be connected to the maturity of the legal framework on EU migrants, which has been constantly transforming since the 1960s. Secondary law on migration, on the other hand, is very recent. As shown throughout this historical investigation, it has developed in an ‘environment in which national jealousies and priorities are never far from the surface’.Footnote ¹⁵⁹ In cases related to TCN migrants, the Court consistently reviews national law in light of a more positive vision of what individual rights should look like in a legal system whose constitutional architecture is completed by the adoption of the Charter.

This differentiated approach, however, has led to paradoxical interpretations in cases where the Court had to relate the rights of EU and TCN migrants. Maintaining the focus on case-law, Section 9.4 showcases the paradoxes that derive from the emphasis on the different status of EU and TCN migrants and the parallel acknowledgement that safeguarding the economy demands the limitation of rights for both categories.