As asylum seekers arrive in Europe, the EU is grappling with big questions and a unique set of challenges.
Immigration has been high on the policy agenda and a political hot topic worldwide, especially in Europe. The recent mass influx of asylum seekers to Europe has exacerbated discussions about migration in the public and policy domains in virtually all countries of the EU. At the same time, Europe’s aging population and demographic changes pose questions about the future of the shrinking labour force, especially in shortage occupations.
Added to these challenges are the global war for talent and highly skilled workers and drivers such as climate change and socioeconomic factors, including cultural and historic links influencing migrants’ choices of destination.
Against these factors and drivers, the immigration system in the EU is characterised by inherent complexity. Different sets of legislation and rules apply to persons seeking asylum and migrants coming through legal migration pathways, such as family reunification or for the purpose of study or employment.
This article focuses on the legal migration pathways, examining how the system currently works and the main challenges for a central EU perspective of the system.
How does the European immigration system work?
Nationals of the EU can move freely and reside in all EU Member States (under certain conditions) as the right to free movement is guaranteed under the treaties. But when it comes to the so-called “third-country nationals” (meaning nationals of third countries leaving their home countries and coming to the EU), a mix of EU and national policies and legislation applies, as immigration is an area in which the EU and the Member States have a shared competence.
So, while most EU Member States have their own national immigration systems regulating entry and admission of third-country nationals, the EU can also legislate when it comes to legal migration pathways and has done so selectively for specific categories of migrants, such as family members of a third-country national already residing in the EU, foreign students, researchers, and also particular categories of workers, such as highly skilled workers, seasonal workers, and intra-corporate transferees.
The rationale for the EU to be centrally involved in the area of migration is to create an equal and level playing field to manage migration flows in the EU and to ensure the fair treatment of those coming to reside in the EU.
In our evaluation of the functioning of the EU’s legal migration system across all areas of EU legislation, we found a number of systemic flaws, which revealed that the system is currently inadequate:
1. Category-specific approach
EU legislation regulates the common admission of only some categories of third-country nationals. However, several categories are out of scope, such as medium-skilled migrant workers, entrepreneurs, and investors; their entry and residence are managed at the national level. Thus, the category-specific approach of the current system has resulted in fragmentation and a patchwork of only some categories of migrants being covered.
2. Parallel national schemes
EU Member States often have parallel admission schemes (residence permits or visas) covering the same categories as those covered by EU legislation, most notably for highly skilled migrants. National schemes duplicate or overlap with the provisions of the legal migration Directives; some offer more favourable conditions and rights than the EU equivalent, while the conditions and treatment among other states are more variable. These schemes most often offer simplified procedures and more favourable rules for third-country nationals, which also affects their practical use as they are usually preferred by member states and third-country nationals alike.
3. Historically different systems
EU Member States have historically different migration systems, from a demand-driven system as adopted in Sweden, to highly regulated systems in Austria and Germany, to the less developed migration systems in Eastern European countries. Although the EU legislation aims for an equal and level playing field, ultimately the legislation is retrofitted to the existing systems in most Member States, which hinders the objective.
4. Practical implementation of the legislation
EU legislation leaves a lot of legal discretion to Member States, which allows differences in its implementation at the national level. Further, Member States have not always implemented the legislation correctly, which has led to further variations. As a result of differences between immigration systems, the rules of EU legislation are implemented differently across EU Member States. There is significant variation, for example, in terms of application time frames, fees, provision of information, documentary evidence required, and equal treatment. The most common issue encountered by third-country nationals is the length of the procedure, followed by the high costs of permits, the many documents required, and the lack of clear and practical information on the migration process.
What comes next?
The results of our study will feed into the EU’s efforts to rethink its current model to manage legal migration and define one that is more coherent and effective. The EU is looking into possibilities to address the shortcomings of the current legislation to make the EU more attractive and to better manage migration flows. Our prognosis is that it is likely that efforts will be made to streamline the current patchwork, although due to the highly political nature of the topic, it may take a long time to achieve. Furthermore, EU legislation will likely expand to cover more categories, such as entrepreneurs and investors, given the appetite of Member States to create specific schemes and attract foreign investors and entrepreneurs.
The EU and its member states must remain committed to change and progress in order to address the diverse needs of today’s ever-evolving global community.