Submitted to the Faculty of the Division Thesis

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Submitted to the Faculty of the Division of the International Relations and Diplomacy

In Candidacy For The Degree Of Master Of Philosophy

A number of developments are challenging the national identity and interests of Western European countries. Primary among these are the supranational integration and sovereignty sharing that is occurring between the European Union (EU) member state governments and the EU governance organs, the ongoing inward migration of peoples from the global South and East into EU countries, as well as the continued elaboration and application of human rights, which is of particular importance to potential migrants and EU residents of non-European origin. The existence of increasing migratory flows and a growing number of settled immigrant communities demands a policy response from the EU and its member states to address the situation of immigrant minorities "particularly with regards to the rights to be (or not to be) conferred upon them" (Geddes 1995:198).

Using a constructivist theoretical framework, the researcher aims to explore the extent to which the international human rights discourse has influenced the formulation of a common EU immigration policy, specifically the Council Directive on the Right to Family Reunification for Third Country Nationals. It will examine the national and regional conditions under which international norms, defined as ideas about appropriate behaviour held in common by a group of actors with a given identity, affect (supranational) institutional change. The researcher intends to investigate the human rights norms that have been taken into account by EU policymakers, and then, using a feminist analysis, interrogate the appropriateness and adequacy of those norms as a basis for immigration policy. The explicit acknowledgement and the attempt to codify the rights of migrants in the European Union is an encouraging development; however, this research will explore the ways in which immigration legislation in Europe has been gendered to the detriment of migrant women and the ways in which the human rights discourse itself is gendered.

Since the Maastricht Treaty (1993), immigration has become a regular feature of the EU policy agenda, yet, as the example of the final family reunification directive demonstrates, this fact does not necessarily entail that member states are willingly relinquishing their national sovereignty to a supranational authority. This research supports the work of scholars who have developed and contributed to the "venue shopping" approach (Guiraudon 2000, 2003; Larsen 2004). The venue-shopping model posits that member-state government elites have made a tactical choice to pursue immigration policymaking within the Council of Ministers at the supranational level in order to circumvent domestic constraints. These constraints take the form of human rights norms codified in national constitutions and the activities of advocacy groups which serve to limit the latitude that interior and justice ministers can take in devising and implementing restrictive immigration policies. A close analysis of current immigration legislation leads one to conclude that certain member-state parties have successfully exploited the EU institutional structure to further legitimize and entrench across the EU a particular security-oriented understanding of national interest in regard to immigration policy.

The Historical Context

Cooperation on immigration policy is a fairly recent occurrence in Europe. In the post war period of economic expansion and institution building, immigration policy was framed in the European Communities mainly as a question of social and economic rights and the desire to create a single market in labour. The labour importing European countries competed to acquire the "best" immigrants and set up the most beneficial labour migration agreements with exporting countries -- mainly Southern European states and former colonies. In the 1970s, in response to the global recession, the traditional immigration countries suspended economic migration across the board. Although each country adopted a similar policy stance, there was little coordination or practical consideration of how the closing of borders and the cessation of labour importation might affect neighbouring countries.

In recent years, immigration has become a hot button issue across Europe; many of the "problems" associated with both the waves of incoming migrants and the existing communities of long-term resident immigrants are the topic of frequent and ongoing public debate. The subject of this study will be EU policy that addresses legal third-country migrants -- in particular first-generation non-European women migrants, who immigrate for purposes of family reunification.

Since the political and social upheavals in Europe in the 1980s and 90s, immigration policymaking in general has been caught up in the political controversy over asylum. Many policymakers suspected that the upsurge in the number of asylum seekers was largely comprised of economic migrants; this governmental and media focus on "bogus" asylum seekers and illegal immigration caused the two issues to become collapsed in the public discourse and has led to more insecure conditions for all migrants residing in the EU (Freedman 2003; Joppke 1998).

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Immigration more generally was increasingly being viewed as a threat to the economic and "social security" of states (Waever.1993). The political context has changed yet again since September 11th and the terrorist bombings in Madrid and London. Internal security concerns have risen on the agenda and "migration has been increasingly presented as a danger to public order, cultural identity, and domestic and labor market stability; it has been securitized"(Huysmans 2000:752).[footnoteRef:2] [2: Even in cases when an "immigrant's security is not threatened by the withdrawal or limitation of formalrights, they may experience insecurity as a result of the particular social conditions within which theserights are exercised. Contemporary discourse and policies on immigration in Europe thus may be seen to becontributing to an increasing insecurity and vulnerability amongst many migrants" (Freedman 2003:7).]

Prior to the Single European Act (SEA 1986), immigration was exclusively a state level concern. The passage of the SEA produced a renewed zeal for economic integration and member-state cooperation by setting a target date for the completion of the single market. The main goal of the single market, to be completed by the end of 1992, was to create a free market in goods, services, capital, and labour. Disagreements over the necessity of maintaining internal border checks in order to distinguish between EU citizens and third-country nationals, vied with the realization that stringent border controls were proving costly and ineffective. Nevertheless, an overriding conviction that greater freedom of movement for workers would allow for greater efficiency in the distribution of labour, led five European governments -- Germany, France and the Benelux -- to abolish their internal borders by adopting the Schengen agreement in 1985.This arrangement, however, raised security concerns. The Schengen Convention, signed in 1990, established stricter external border controls to compensate for the loss of control over internal borders deemed necessary for the completion of the internal market. The objective of a common migration policy was "limited to compensate the potential negative impact of the suppression of internal borders" (Pastore 2002:2). The Schengen agreement was hampered both by its strictly intergovernmental nature, which required unanimity in all decisions, and also by its lack of democratic legitimacy.

A protocol attached to the Treaty of Amsterdam incorporated Schengen into the European Union (EU) framework on 1 May 1999. The Treaty of Amsterdam gave the EU competence in the arena of immigration policy, whereby it was shifted from being a matter for intergovernmental coordination to one of shared competence. In Tampere, Finland, in 1999 the European Council agreed upon the parameters for a common EU immigration policy.

The Tampere Presidency Conclusions state, "the European Council acknowledges the need for approximation[footnoteRef:3] of national legislations on the conditions for admission and residence of third country nationals" (1999:para 20).[footnoteRef:4] Previously migration policy was framed in narrow instrumental economic and security terms, but Tampere radically expanded the agenda to include not only migration control but also the effective management of legal migration in order to strike a balance between humanitarian and economic admission. As a result of the Tampere mandate, the Commission issued draft directives in three key areas: the conditions of entry and residence for third-country nationals for paid employment and self-employed activities; the right to family reunification; and the status of third-country nationals who are long-term residents. These initiatives are part of the Commission's effort to establish a uniform set of rights for migrants. In 2002 the European Commission tried to impose a standstill clause[footnoteRef:5] that would have prevented member states from developing any new legislation until the European parameters were solidified. However, "on some key subjects, such as family reunification, it was the European decision making process which was blocked [in the Council] in order to allow national parliaments to take their own decisions in an unrestricted way. In other words, we witnessed very clearly the functioning of domestic priorities and of a 'reverse standstill clause'"(Pastore 2002:3). [3: Approximation is a fundamental principle of European Community law. It entails an agreement on the part of member states to develop comparable and compatible policies at the national level so as to better achieve common EU goals] [4: Third-country nationals as a usage pertains to all those persons who are not citizens of the member state in which they are resident, nor….....

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