The European Union (EU) has sought to build a comprehensive immigration policy in which legally residing non-EU nationals, referred to as third-country nationals (TCNs), should be treated fairly and in a non-discriminatory manner. However, a number of gaps and barriers in the legislation adopted can still be identified. This concerns notably the lack of incorporation and implementation of international and EU human rights as well as labour standards. Different treatment between TCNs and further barriers lead to missed opportunities (so to an unoptimal situation) which lower revenue collection for individuals and for society (via taxes). Further EU action in this area could address these gaps by reinforcing existing standards and ensuring a better implementation of immigration policies.
A common action by the EU can bring significant economic benefits to citizens. The existing single market, for example, has already boosted the European economy (EU-28) by offering a wider range of choice for consumers and greater economies of scale for producers, so increasing trade, investment and employment. In many policy areas, existing common action could be deepened and new actions undertaken in ways that would generate a positive economic spin-off.
The concept of ‘non-Europe’ originated in 1983 in a report for the European Parliament which warned that ‘non-Europe, under-employment, non-growth, decadence, are all part of the same phenomenon, which in everyday life is reflected in growing despair and sometimes violence’. The concept of the cost of non-Europe is closely related to that of ‘European added value’, in that the latter attempts to identify the collective benefit of undertaking policy action at European level in a particular field, while the former concerns the collective gain that is foregone by not undertaking it.
The idea of the ‘cost of non-Europe’ can be applied beyond its relation to the single market, although it is perhaps easier to quantify in this specific policy area than in some other sectors. Since 2012, the European Parliament’s European Added Value Unit (EAVA) has been attempting to estimate the potential economic gain from policy initiatives favoured by the Parliament that could boost Europe’s economic performance over time. Such gains come principally either from additional gross domestic product (GDP) generated or from a more rational allocation of existing public resources, through better coordination of public spending at national and European levels. The central notion is that the absence of common action at European level may mean that, in a defined policy area, there is an efficiency loss to the overall economy and/or that a collective public good that might otherwise exist is not being realised. Overall, 2 200 billion euros are estimated to be achievable as potential gains for the European economy (EU-28), if the policies advocated by the Parliament in a series of specific areas were to be adopted by the Union’s institutions and then fully implemented over a ten-year period from 2019 to 2029. This would be representing a boost of some 14 per cent of total EU GDP (which estimated at 15.3 trillion euro in 2017).
Such reasoning can be applied as well on migration, a worldwide process and challenge which is one of the greatest issues Europe has had to face. The EU has been used to be under the spotlights, but recently it has substantially been rattled due to the ongoing issues concerning asylum and immigration. In October 2016, the European Parliament’s Civil Liberties, Justice and Home Affairs (LIBE) Committee requested the European Parliamentary Research Service (EPRS) produce a ‘cost of non-Europe Report’ on the Area of Freedom, Security and Justice (AFSJ), which can be split in two sections : one concerning migration and borders, another regarding security and fundamental rights. In this article, we will focus on the first section mentioned and especially on one of its subsection, legal migration.
1. Legal migration state of play
The EU has sought to build a comprehensive immigration policy in which legally residing non-EU nationals, referred to as third-country nationals (TCNs), should be treated fairly and in a non-discriminatory manner. As underlined by the European Parliament, this human mobility represents challenges and opportunities for the EU. It occurs mainly in two different ways: legal migration and irregular migration. While irregular migration regards the movement of persons to a new place of residence or transit using irregular or illegal means, legal migration occurs through recognised and authorised channels, refers to regulated stays in the EU of more than three months by TCNs.
The European Parliament favour an EU approach to legal migration in order to manage human mobility in a sustainable way. After being a core expression of territorial sovereignty, therefore managed under the sole responsibility of the Member States, legal migration has become a shared competence and a fragmented approach was adopted to regulate conditions for TCNs’ legal entry and residence.
Currently, the EU legal migration framework is mainly based on Title V of the Treaty on the Functioning of the European Union (TFEU). Article 79 TFEU reaffirms the long-standing EU commitment to develop a common policy founded on the fair treatment paradigm of ‘legally residing third-country nationals’. Article 79(4) TFEU provides for EU competence to support Member State action to legally integrate resident immigrants and Article 79(5) TFEU clarifies that Member States remain solely responsible for determining the volumes of TCNs they admit for the purpose of work. Title V TFEU should also be read in light of the EU Charter of Fundamental Rights (EU CFR) that has the same legally binding value as the Treaties. Articles 15(3) and 31 stipulate that every worker has the right to ‘equivalent’, ‘fair’ and ‘just’ working conditions.
These legal bases allow the EU legal migration framework to set the conditions of entry and residence for TCNs which is embodied in 7 directives : the Family Reunification Directive (FRD) ; the Long-Term Residents Directive (LTRD) ; EU Blue Card Directive (BCD) ; Single Permit Directive (SPD) ; Seasonal Workers Directive (SWD) ; Intra-corporate Transferees Directive (ICTD) ; Students and Researchers Directive (SRD)
2. Gaps, barriers, and impacts
Overall, the legal migration directives have brought positive effects that would have not been achieved by the Member States acting alone. However, a number of legal gaps (i.e. areas or situations not covered by EU law) and practical barriers (i.e. administrative or practical obstacles faced by individuals while trying to exercise the rights and guarantees provided by the EU’s legal migration acquis) may still be identified. The ‘europeanisation’ of legal migration has meant a number of ‘trade-offs’ in the final forms that feature the EU legal and labour immigration acquis. The current state of play in the area of this policy area is defined by the ‘minimum harmonisation’ in and among the adopted directives approach that further prevents from unleashing the full potential of EU added value, leading to a worsening loop towards policies appreciation.
These result from the lack of incorporation and implementation of international and European human rights and labour standards. The sectoral approach taken in the EU legal framework, do not cover all TCNs in the same way, and in part leaves parallel national schemes in place. The cost of non-Europe reports particularly highlights a number of obstacles TCNs face, such as equal treatment, entry and re-entry conditions, work authorisation, residence status, intra-EU mobility, social security coordination, family reunification and the recognition of qualifications.
Different treatment between TCNs and further barriers result in differences in their employment rate, over-qualification, lower job quality, lower earnings and poorer long-term integration outcomes. Gaps and barriers relative to the current migration framework, beyond giving rise to discrimination, lead to missed opportunities such as lost income and tax revenues at societal (aggregate EU) level, so to an unoptimal situation. The greatest impacts are due to unequal treatment (which is overlapping with other gaps and barriers) with regard to employment and remuneration, barriers imposed on family migrants and the poor recognition of qualifications. The impacts associated with the overall lack of equal treatment between native citizens and TCNs were assessed based on the gap in employment between TCNs and natives, as well as the lower wages among TCNs and natives. These two gaps were translated to calculate lost employment, lost income and tax revenue, and aggregated across all skills groups. This results in a cumulative estimate of €21 billion in lost earnings and €8 billion in lost tax revenue.
Furthermore, these deficiencies undermine the EU’s ability to attract workers, to tackle EU labour market shortages in specific sectors or occupations, to address demographic changes (an ageing population) and to boost innovation and growth. However, it is very difficult to estimate a monetised benefit of the EU attracting further TCNs. This is due to the many factors one has to take into account, especially when making longer-term predictions.
As the European Commission points out ‘the EU has a single market, and it should therefore also act as a single player towards the outside world to create economies of scale and hence better compete with other major destinations for attracting skilled and particularly highly-skilled, workers’. Furthermore, ‘for the benefit of Europe, more should be done at European level in terms of improving job matching, recognition of foreign qualifications and facilitating labour mobility of migrants across the single market’.
3. Options for action and cooperation at EU level
In order to address these challenges, the report suggests 4 policy options for enhancing action and cooperation at EU level in the area of legal migration which differentiate from each other in ambition and speed on how to reform the current EU legal migration acquis. These options include, starting with the least ambitious : A better enforcement and practical delivery of common EU rules and rights laid out in existing sectoral directives ; Gradual extension of the current sectoral directives ; The adoption of a non-binding immigration code in the area of legal migration, facilitating a ‘one-stop-shop’ for all existing EU rules and instruments on legal and labour migration. Finally, the adoption of a binding immigration code on the conditions and rights of all TCN workers in the EU, which similarly to the area of free movement of EU citizens, would bring together all secondary legal instruments into a single legal act.
Academic research as well as the Parliamentary position pledges for a binding immigration code, as being the most ambitious option and providing the greatest results in terms of efficiency. It would imply abandoning the sectoral approach and adopting a directive covering all TCNs, regardless of their skills’ status. This option would aim to close the gaps and barriers between different sectoral directives in a one leap taking 5 – 10 years. For instance, if the most ambitious option would be undertaken to address TCNs equal treatment, potential gains could rise up to 21,75 billion euros (15,75 billion in individual benefits and 6 billion in economic benefit).
The code would, however, need to live up to the ambition of eliminating inconsistencies and unjustified variations, as well as raising rights standards, to have a high positive impact on issues such as intra-EU labour mobility, the recognition of qualifications, family reunification and equal treatment overall. An important condition for that would be a change in the narrative around legal migration – away from the currently dominant security perspective – towards one that (also) highlights the economic, social, educational and cultural opportunities for the European Union and focuses on promoting the attractiveness of the EU for legal and labour migration. Nevertheless, such initiative requires great political commitment by EU institutions and the willingness of Member States. In the light of the recent past, such commitment appears to be quite hard to be reached as positions diverge within Europe on how to address migration.
Migration is deeply complex phenomenon which is driven by forces beyond the solely individual’s willingness. While its actual cost is regularly disputed, laying on blur arguments pointing to wrong causality, the lack of commitment imply missed opportunities which could benefit to the whole society. The EU legislators should take the responsibility over the shaping the evidence-based and rights based narrative over the legal migration.
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 Exception made for UK and Denmark, which are not bound to these directives
 The directive is meant to regulate admission and residence of family members of TCNs (sponsors) legally residing in Member States
 The directive is meant to allow TCNs who have legally and continuously resided in a Member State for five years to obtain an ‘EU long-term resident’ status and associated rights
 The directive is meant to regulate the admission and residence of highly-skilled third country workers, and their families
 The directive is meant to establish EU rules for a single application/permit and equal treatment provisions for TCNs applying for a residence and work permit in a Member State, as well as a common set of rights to be granted to legal immigrants. This is a ‘framework’ or ‘horizontal’ Directive that covers third-country workers also admitted to a Member State according to national migration law
 The directive is meant to regulate the admission and stay of third-country nationals admitted temporarily to carry out seasonal work
 The directive is meant to cover third-country workers, and their families, employed outside of the EU by a group of undertakings and posted to a subsidiary in an EU Member State for a maximum of three years
 The directive is meant to cover the conditions of entry and residence of TCNs for the purposes of research, studies, training, voluntary service, pupil exchange schemes or educational projects and au pairing.
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