Professional Documents
Culture Documents
European Union Immigration Policy For The 21st Century: Spain and Italy As Case Studies
European Union Immigration Policy For The 21st Century: Spain and Italy As Case Studies
by
Francisco J. Gonzalez
Spring 2000
Prof J. Weeks
Changes, Trends and Scenarios in
European Union Immigration Policy for the 21st century:
Spain & Italy as Case Studies
Introduction.................................................................................................................. 1
Part I. Immigration Under EU Law 2
A- Solutions 25
1 Incl usion 25
2. ControL................................................................................................ 26
B- Conclusion 27
Changes, Trends and Scenarios in
Introduction
In 1992 two grand celebrations held in Spain, the Olympic Games and the World
"discovery" to the Americas. While the focus of the activities was on the host country, the
overall theme was the role played by Spain and, eventually, other European countries as well,
in carrying Western civilization (and European immigrants) to the farthest comers of the planet.
However, in a paradoxical contrast, already in 1992 the member states of the European Union
were beginning to enact measures to limit the influx of foreigners (i.e. citizens of non-member
The European Union (EU) is currently struggling to accommodate two processes that
pose challenges to their immigration policy: first, the growing number of asylum-seekers, and
economic migrants (legal and illegal); and second, the need to remove barriers to the free flow
of goods, persons, services and capital in order to promote the continuing integration of the
member states. I The obvious tensions produced by these competing needs are reflected in EU
intracommunitarian trade.
IMigration and European Integration: The Dynamics of Inclusion and Exclusion, at 1-12 (Robert Miles &
Dietrich Thranhardt eds., Pinter Publishers 1995).
1
In this paper I will present an overview of several aspects of immigration into the EU,
focusing exclusively on the role played by economic migrants.2 Part I of this paper will explore
the legal framework of EU-wide immigration legislation, in particular the incorporation of the
Part II will examine in detail the impact on Spain and Italy from a decreasing birthrat~
and increased migration from non-ED foreigners, factors that are dramatically changing the
social, economic and political structures of both nations. Their current immigration laws and the
policy considerations behind them will also be ex:amined. Lastly, a short analysis ofthe
In Part III, the Conclusion, an overview of policy and economic trends will be presented,
control measures, steps by the EU to enhance economic development (and thus lessen need for
immigration) in Africa and Eastern Europe, and how demographic and economic realities will
Until fairly recently, immigration- asylum policy was strictly a preserve of the national
21 will use the terms economic migrant and immigrant to describe immigrant workers from outside the
European Union that enter a EU member state seeking economic opportunities. In contrast are refugees and asylum-
seekers, individuals escaping political oppression or military conflict in their own home countries. Both EU and
International law have different regulations applied to each category.
3 The Schengen Agreement on the Gradual Abolition o/Checks at Their Common Borders, June 14. 1985,
30 I.L.M. 68 (1991) (Convention applying the Agreement enacted June 19, 1990). The original Schengen members-
Benelux countries, France and Germany enacted several measures regarding asylum and immigration procedures and
policies. While the Schengen Agreement and Convention were not part of the EU framework, they were incorporated
into the Treaty of Amsterdam and made applicable to all EU member states effective 1999 (the United Kingdom and
Ireland, however, were exempted since (among other factors) their geographic situation as islands, and the conflict in
Northern Ireland, created problems not envisioned by the Schengen policies).
2
states. Since the 1980's a clear intensification of cooperation in this field among EU member
states took place. These contacts were initially limited to the level of intergovernmental
consultation (that is, bilateral or multilateral arrangements outside the parameters ofEU
institutions). Eventually, a joint general policy in the areas of immigration and asylum policy
was developed. One Dutch analyst, Henk Overbeek, describes the process as follows:
The Schengen Agreement and Conventions of 1985 and 1990 represent the most
comprehensive arrangement among European nations regarding the movement of persons. The
Agreement provided for the abolition of all border controls within the area of the signatory
States and the strengthening of the external borders of the Schengen nations5. The Agreement
establishes that the signatories "shall endeavor to hannonize ... the laws and administrative
provisions concerning the prohibition and restrictions which form the basis for the controls and
3
Union-wide integration.7 The terms of the agreement encompass the review of immigration,
visa, and asylum policies; cooperation in policing external borders and enforcing laws; and
establishing arrangements for sharing immigration and criminal records.8 While the agreement
abolishes border controls between signatory states, this right did not extend to non-EU nationals
even if they had been granted admission to any the parties to Schengen.9
The most important element of the Schengen reforms is the crafting of new definitions
applicable to asylum seekers and refugees. 10 For example, France and Germany define refugee
"as a person with reasonable fear of persecution from his or her government", thus excluding
persecutions by religious fundamentalists. II This, in turn, has greatly reduced the number of
foreigners residing illegally in the Schengen countries since they now have no avenue to
7Giovanna I. Wolf, Efforts Toward "An Ever Closer" European Union Confront Immigration Barriers, 4
Ind. 1. Global Legal Stud. 223, 225 (1996).
10 The UN Carter and the Universal Declaration of Human Rights guarantees refugees the right to seek
asylum in other countries. See Gabriela I. Coman, European Union Policy on Asylum and Its Inherent Human Rights
Violations, 64 Brook. L. Rev. 1217, 1229 (1998).
IlId. at 1230.
12 The exact number of undocumented aliens residing in the EU is difficult to estimate, for the obvious
reason of their legal situation, but the figure ranges between 800,00 to 1million. See Martin Heisler, Contextualizing
Global Migration: Sketching the Socio-political Landscape oj Europe, 3 UCLA 1. Int'l L. & Foreign Aff 557, 580
(1998).
4
Treaty of Amsterdam, which became effective on May 1st of 1999, included several articles
Immigration and Other Policies Related to the Free Movement of Persons") include the
following:
-Art.62: Directs the Council to adopt "measures on the crossing of the external borders of
the Member States" establishing "the conditions under which nationals of third countries
shall have the freedom to travel within the territory of the Member States" on a
temporary basis.
-Art. 63: Directs the Council to adopt measures regarding asylum seekers and refugees,
as well as the development of "conditions. of entry and residence, and standards on
procedures for the issue by Member States of long tenn visas and residence penn its,
including those for the purpose of family reunion. In addition, the Council shall adopt
"measures defining the rights and conditions wider which nationals of third countries
who are legally resident in a Member State may reside in other Member State."
The Amsterdam Treaty points out to the clearly defmed trend ofEU law regarding this subject:
the eventual replacement of individual laws of the Member States with a EU-wide framework
Why the focus on Spain and Italy regarding immigration into the EU? Simply because
nowhere else in Europe are the effects of population trends, economic development and
immigration seen in such stark contrast. Due to increased immigration and decreasing birthrates,
During the 19th and most of the 20th centuries, both Spain and Italy experimented large-
scale migratory flows as hundreds of thousands of their citizens abandoned the poverty and
13Treaty of Amsterdam, Oct. 2 1997, Luxembourg: Office for Official Publications of the European
Communities (1997) [hereinafter Amsterdam Treaty].
5
political instability of these nations. With rapidly increasing populations, huge income and class
disparities, and stagnant economies at home, Spaniards and Italians flocked to the welcoming
The destruction of World War Two and the Spanish Civil War (1936-39) created
additional waves of economic and political refugees fleeing these Mediterranean nations, and it
was only with the European boom of the 1960's that their economies began to improve.
However, both countries still had a labor surplus, with no need for foreign workers. 14 Moreover,
Spain was ruled by fascist dictator Francisco Fra~co until his death in 1975, making the country
This scenario began to change in the late 1970's and early 1980's, with the increased
economic tempo among the southern European economies. Italy, an early member of the
European Community ( EC, now the ED), began to improve its economic position thanks to
transfer funds and increased investment. Spain, after the reestablishment of democracy in and its
15 Many Latin American countries were receptive to Spanish immigrants. For example, Argentina all~wed up
to 25,000 immigrants a year. In addition, around 500,000 persons emigrated from Spain between 1939-40, escaping
Franco's dictatorship. Juan G. Bedoya, Los espafioles se extinguen [The Spanish people are becoming extinct], El
Pais (Madrid), February 15, 2000, <http://elpais.es/p/d//20000215/espana/familia.htm>.
6
incorporation to the EC in 1986, also experienced a period of accelerated economic
development. In addition, economic prosperity and evolving cultural mores resulted in dramatic
changes on the population makeup of both nations. By the late 1980's, authorities in both Rome
and Madrid began to take notice of the fact that their countries were beginning to attract
A- Population Trends
The current migratory influx into Spain & Italy is made possible by the unmet need for
labor, this the result of demographic changes in b9th countries. Society and culture are also
Currently Spain has the world's lowest birth rate (1.07 births per women),16 and Italy's is
just slightly higher (1.2).17 The resulting population loss, or difference between live births and
deaths, is significant. For example, in 1998, Italy lost over 44,000 inhabitants; 18Spainjust
managed to retain its current population without reduction, but this trend is not expected to
last. 19In order to maintain its current population of 39 million, Spain will need to admit a total
16 £spafia sera el paL,>mas industrializado con mayor porcentaje de ancianos en 2050 [Spain will he the
industrialized country with the highest percentage of elderly by 2050], EI Pais (Madrid), March 22,2000,
<http://elpais.eslp/dl/20000322/sociedadlviejos.htm>
17 U.N. Dep't of Economic & Social Affairs, Replacement Migration: Is it a Solution to Declining and
Ageing Populations? (last modified March 17, 2000) <http://www.un.orglesalpopulationlunpop.htm>.
19 Instituto Nacional de Estadistica, Hipotesis sabre fa evoluciOn jutura de la jecundidad [National Institute
of Statistics, Hypothesis regarding thefuture evolution of the birthrate] (Spain) (last visited Feb. 11,2000)
<http://www.ine.es/daco/daco.htm>
7
of250,000 new immigrants every year for the next 50 years.20 Italy, moreover, must receive
370,500 new immigrants annually to retain its current population of 57 million inhabitants.21
The other important demographic factor that creates a need for increased immigration is
the rapid aging ofthe population. The life expectancy in both Italy and Spain has steadily
ITALY SPAIN
The elderly will comprise an ever-larger percentage of the total population of these countries:
The statistics for Italy and Spain are virtually identical in their conclusion regarding the
During the 1970's & 1980's, increased educational and social programs, added to the
diminution of the burdensome influence of the Catholic Church in both countries, opened the
20 Replacement Migration: Is it a Solution to Declining and Ageing Populations?, supra note 16.
21Id
23 Replacement Migration: Is it a Solution to Declining and Ageing Populations?, supra note 16.
24 Instituto Nacional de Estadistica, Encuesta de Fecundidad 1999 [National Institute of Statistics, Survey
8
door to women to become more active in the labor market, in government and in society in
general. With these new freedoms, women were now able to have more control regarding how
many children to have. This is the same pattern that reduced the birthrate in Northern Europe
The expansion of health services and other social welfare programs account for the
increase in the lifespan of Italian and Spanish men and women.26 As already indicated, the
elderly, because of the reduction in the birthrate, will comprise a larger percentage of the
The United Nations, as well as officials in Madrid and Rome, have identified some ofthe
1- The recent growth in the economies of Spain and Italy cannot be sustained in the long
2- The aging population of both countries will require an increase in service industry,
which is labor intensive (personal care assistants, food preparation staff, nurse aids, etc.)
In addition to the native elderly populations, many retired and elderly individuals from
Northern Europe (mainly the United Kingdom and Germany) are also moving
permanently into the Mediterranean countries, thus increasing the demands on the local
...'..
25 Replacement Migration: is it a Solution to Declining and Ageing Populations?, supra note 16.
'p ld, see also Bilancio demogrqfico nazionale, supra note 17; and Hipotesis sobre la evolucionfutura de
lafecundidad, supra note 18.
9
infrastructure and service industry.
3- In order to guarantee the funding for current welfare and social security programs, the
contributions of four active workers are needed for each retiree. By the year 2050, Italy
and Spain will only have around two workers per retiree, which can potentially bankrupt
the system.
The availability of work, due to the shortage of local labor, is the principal magnet for
non-ED nationals (known as extracomunitari) to move into Italy. The limits placed by the
living at the margins of the law, since until 1986 Italy did not have a system that allowed for the
While changes in the law now permit the legalization and orderly admission of a limited
number of extracomunitari, the persistence and growth of illegal immigration in Italy further
undermines the government's efforts to accommodate this influx.28 Efforts to count the illegal
population in order to understand the depth of the problem become a guessing game in which the
margin of error is amplified by the high percentage of illegal aliens in relation to legal
10
revenue of the billions of lira paid in salary that goes unreported each year"29.
Another factor resulting from undocumented immigration has been a slowdown in the
economic development ofItaly's poor and underdeveloped southern regions, such as Sicily and
Calabria. There is some evidence that a great percentage of the often unreported jobs available
On the other hand, these illegal immigrants suffer from abuse and discrimination since
they are reluctant to contact the authorities to seek protection or legal redress.3! In most
occasions, the illegal immigrants face a harrowing experience attempting to cross the Italian
border unchecked. Even after arriving in Italy, immigrants who contracted the services of a
smuggler may face continued abuse and exploitation, as the high cost of the voyage charged by
the traffickers often leads illegal immigrants to accept dangerous work conditions and
sub-standard wages. In addition, there are frequent reports of illegal aliens compelled to repay
However, despite all the obstacles, extracomunitari immigrants continue to flock to Italy.
The greatest concentrations are registered in the northern part of the country, close to the
industrial centers of Milan and Turin, and in the area around Rome.33 In addition, there are
significant pockets scattered across the rest of the peninsula and on the islands of Sicily and
3!u.S. Dep't. of State, Country Reports on Human Rights Practices: Italy (last revised Feb. 25, 2000)
<http://www. state.gov/www/global/human Jights/1999 _hrpJeport/italy/html>
11
Sardinia.34 They are mostly engaged in low-skilled, labor intensive occupations such as
The majority of the extracomunitari, both legal and undocumented, originate in the area
of the Mediterranean basin. Other significant groups are from Eastern Europe, the Far East, and
even the United States. The largest groups, according to 1999 figures, are36:
creating statutory regulations for the entry of immigrants, family reunification, and extending a
general amnesty to those undocumented aliens already living in Italy.3? In 1990, Law 39 (the
Martelli Law) was enacted.38 This statute introduced a new amnesty program for illegal aliens
and expressly repealed a significant portion of the laws applicable only to foreigners that dated
to the time ofMussolini's fascist regime. Beyond developing Italy's immigration system from
35Presidenza del Consiglio dei Ministri, Anticipazioni Dossier Statistico 1999[Prime Minister's Office, Early
Resultsjrom the 1999 Statistics Report] (Italy) (visited Apr. 4, 2000) <http://palazzochigi.it/approfondimenti/
immigrazionel approfondimenti/index. htm1>
38Id at 483.
12
one of administrative decrees to a structure based on democratically produced laws, though, the
On July 25 1998, the Italian government approved a complete revision of the country's
immigration procedures and enacted the Decreto Legislativo (Legislative Decree) n. 286, in
order to accommodate the following objectives: need for the admission of additional workers,
the regularization of those undocumented aliens already residing in the country, and the
simplification of the process for the integration of the immigrants into mainstream society.39 The
39Decreto Legislativo 25 Iuglio 1998, n. 286, Testo unico delle disposizioni concementi fa disciplina
dell'immigrazione e norme suUa condizione dello straniero [Laws and Procedures Regarding Immigration & the
Status of Foreigners} (visited April 3, 2000) <http://palazzochigi.it/approfondirnenti/ immigrazione/italia/index.html>
40Id
13
-Art. 21 (Determinazione dieflussi di ingresso- Establishment of Admission Flow): The
Ministry of Labor and Social Services ,¥ill be the agency in charge of processing requests
from Italian employers (datore di lavoro) for the admission into the country of foreign
workers. The nature of the occupation (seasonal or permanent, skills needed, etc.) Will
determine the type of status that the worker will receive. The number of requests
approved will conform to the numerical ceiling to be determined under Art. 4 of this law
-Art. 28 (Diritto all 'unita familiare-Right to F amity Reunification): All foreigners duly
authorized to reside in Italy will have the right to bring in close relatives (married
spouses, minor children, parents, and relatives up to a 3rd degree- cousins, uncles,
grandparents-that are unable to support themselves).
The government established a ceiling of58,000 work permits be issued in 1998 and also
in 1999.41 The total number of authorized foreigners residing in Italy in 1999 was of 1,250,214;
extracomunitari.42
The effects of immigration in Spain reflect some of the Italian experiences. Spain's
41Consiglio dei Ministri, Comunicato n. 56 [Council of Ministers, Release n. 56] (last updated April is,
2000) <http://palazzochigi.it.html>
14
history as a receptor of immigrants is fairly recent. For example, more than 2.5 million Spanish
citizens continue to live overseas, while only about 800, 000 foreigners live in Spain (around
1.3% of the total population, one of the lowest percentages in all ofEurope).43
immigrants has more than doubled since 1980.44The treatment accorded to foreigners varies
tremendously: immigrants from other EU member states are received with open arms (over
300,000, many of them retirees from Germany, Scandinavia and the United Kingdom), while
economic immigrants from the developing world.(extracomunitarios) are looked upon as little
The fact remains that the economic migrants fill a very important labor niche: low-
paying, low-skills service and agricultural jobs that most native Spanish despise.46 These
agricultural lands have been improved thanks to EU subsidies, allowing for a boom in the
production of vegetables and other producet7; Cataluiia (the industrial heart of Spain) and
Madrid (that largest city in the country, surrounded by newly developed industrial and residential
43 Miguel Gonzalez, Inmigrantes hoy, padres de espdnoles manana [Immigrants today, parents of
tomorrow's Spanish), EI Pais (Madrid) February 14, 2000 <http://www.e1pais.es/p/d/20000214/espanalinmi.htm>
44 Id.
47 A. Torregrosa, De erial a huerta de Europa [From Wasteland to Europe's Garden}, EI Pais (Madrid),
Feb. 11,2000 <http://www.e1pais.es/p/d/2000021l/espanalerial.htm>
15
areas).48 Legal and illegal immigration also provide other benefits to the Spanish economy: for
example, only around 17, 000 immigrants receive any type of social assistance or subsidies,
while over 300,000 pay into the extensive social security system.49
While Spain's immigration laws are enacted by the central government, the
level) have extensive powers to deal with related issues such as employment/labor needs,
education, law enforcement, health and social services. 50 Thus, local authorities have, compared
jurisdictions. The resulting disparity in services, attitudes and treatment available to immigrants
was one of the primary reasons why Spain decided to revamp its entire immigration law,
The sudden increase of immigrants moving into Spain has raised concerns in many
sectors of society, specially in rural parts of the country. This undercurrent of xenophobia and
outright racism exploded in the town ofEI Ejido, in the province of Almeria (Autonomous
death a Spanish women at the local market. While the aggressor was immediately arrested, the
Spanish inhabitants of the town went on a rampage, assaulting hundreds of immigrants and
burning their homes and property, in the worst scene of ethnic violence seen in Spain since the
16
expulsion of the Islamic Moors in the 16th century. 51 The mostly North and Central Mrican
indispensable source of labor for the many successful small agribusinesses in the area. 52
However, most of these workers were undocumented, making them easy prey for unscrupulous
farmers, and also increasing their isolation from the general community (because of their illegal
status, they were ineligible to participate in the political process, submit grievances before the
proper authorities, avail themselves to education and other services, etc. )53
This time, however, the immigrants stood. their ground and fought back. They declared a
strike that affected all the agribusinesses in the area (despite efforts by local farmers to bring in
replacement workers from Rumania), organized rallies and orchestrated a public relations
campaign that eventually forced the government to provide reparations for the lost wages and
homes. 54 Thanks to the new immigration law, most of the undocumented immigrants can now
legalize their status, which in turn will lead to an increased participation and influence on the
The majority of the extracomunitarios, both legal and undocumented, originate in the
Maghreb (Western North Mrica). Other significant groups are from Latin America and the Far
51Jorge A. Rodriguez, Cierre total de comercios y siete detenidos en otra jornada de violencia xenofoba en
EI Ejido [Businesses Closed & Seven Arrested After j'd Day of Xenophobic Unrest in EI Ejido}, EI Pais (Madrid)
Feb. 8,2000 <http://www.eIpais.es/p/d/20000208/espana/ejido.htm>
53 For example, minimum daily wages for a Spanish farmhand are 5,000 pesetas (around $28), while
immigrants are only paid 2,500 pesetas (less than $15). Id.
54Jorge A. Rodriguez, La huelga en EI Ejido crea crispacion entre los inmigrantes magrebies y los
europeos [Tensions Rise Between Striking North Africans and European Immigrants} El Pais (Madrid) March 9,
2000 <http://www.elpais.es/p/d/20000210/sociedad/inmigran.htm>
17
East. The largest groups, according to 1999 figures, are55:
The death of dictator Francisco Franco in .1975, and the adoption of a new constitution in
1978, did not produce any changes to the country's immigration laws. Not untill985 did the
Cortes (parliament) approve new legislation, the Ley Organica (Organic Law) 7/1985, totally
replacing the fascist laws of the Franco era. Spain was not a member of the European Common
Market at this time, so the regulations applied to all foreigners; however, special consideration
was provided to citizens of Latin America, the Philippines, and other countries with historical
and cultural ties to Spain. 56 This law also included provisions for an amnesty for those
immigration laws, in order to reflect Spain's membership into the ED and the Schengen
agreements; and also to address the issues of increased (and mostly undocumented) immigration
into the country. This Ley de Extranjeria (Alienage Law) entered into effect on January 1st,
56Ley Orgimica, de 1 de Julio de 1985, sobre derechos y libertades de los extranjeros en Espana, (E. O. E.,
1985).
18
2000. The main purpose of the new system is reflected by its official title: "Organic Law on
Rights and Freedoms of Foreigners in Spain and Their Social Integration.,,58 The principal
-Art. 12 to 14: These articles establish that all foreigners, legal or undocumented, are
eligible, just like Spanish citizens, to the same basic services regarding housing
assistance, public health insurance, and social security/welfare benefits.
58 Ley Orgimica sobre derechos y libertades de los extranjeros en Espana y su integraci6n social (B. O. E.,
1999,295).
59Id
19
spouses, minor or disabled children, dependent parents and grandparents, and other
relatives eligible on humanitarian grounds).
-Art. 35 (El permiso de trabajo- The Work Permit): The Spanish government will issue,
depending on national labor needs, work permits to foreigners seeking employment. The
permit is valid for 5 years, and becomes a permanent work authorizations if the
immigrant remains gainfully employed at this time.
The government established a ceiling of 30,000 work permits be issued in 1999.60 The
total number of authorized foreigners residing in Spain in 1999 was of719, 647; comprised of
330,528 (46 %) from other ED countries, and 389, 119 (54 %) extracomunitarios61.
6~elen Reyes Guitian, El Ejido, alga mas que un simple "incidente lamentable" rEI Ejido, more than just
a "lamentable incident"), EI Mundo (Madrid) Feb. 20, 2000
<http:www.el-mundo.es/2000/02/20/espana/20N0026.htm1>
20
and setting down broad policy goals) directs the Commission to enact measures that implement
a "harmonized" system ofEU immigration legislation. The principal European Union agencies
that have jurisdiction over the issue of immigration are two portfolios of the European
Commission: the Directorate-General (D-G) for Employment, Industrial Relations and Social
The immigration-related aspects of the D-G for Employment, Industrial Relations and'
Another agency that operates under the supervision of the D-G for Employment, Industrial
Relations and Social Affairs is the European Monitoring Centre on Racism and Xenophobia,
located in Vienna. Its mission is "to provide the European Union and the Member States with
objective, reliable and comparable information at European level on racism, xenophobia and
anti-Semitism, and thus improve the exchange of information and experiences. "63 Both the EU
Council and the Commission agreed to the establishment of this center in 1997, as they realized
that:
62Directorate-General for Employment, Industrial Relations and Social Affairs, Migration Policy, (visited
March 4, 2000) <http://europa.eu.int/comm/dg05/fundamrilmigrat/intro _en. htm>.
63D_G, Employment & Social Affairs, European Centre on Racism and Xenophobia (visited Apr. 5, 2000)
<http://www.europa.eu.int/comm/employment_sociallfundamrileuJacismlenglish!observatory/observatoire_en.htm>
21
"[t]he need for action at European level against racism and xenophobia is becoming
more and more apparent with the growing transnationalism of racist propaganda and
incitement to racial hatred. There is thus an urgent need to have a better understanding at
European level of the nature and extent of racism and xenophobia, so that the European
Union can strengthen its role as an important force in the struggle against these problems
and develop a global strategy for their elimination."64
The other agency with immigration-related issues is the Directorate-General for Justice
and Home Affairs, which is directly involved in drafting and proposing legislation to the
Commission and the European Parliament. 65 One of this D-G's most important projects
which provides training, exchanges and cooperation in the field of asylum, immigration and
crossing of external borders (and the security of travel and identity documents) within the
Member States of the EU, and cooperation in the same areas with States applying for
accession.66 In order to meet these objectives, the program includes the following: "training
(ranging from basic training to top-level specialist training and training for instructors);
exchanges of officials or those responsible for the matters to which the programme relates;
Regarding immigration, the new head of the D-G for Justice and Home Affairs,
Commissioner Antonio Vitorino (Portuguese) has expressed his frustration at the slow pace of
65Directorate-General ofJustice & Home Affairs, Responsibilities, (last visited April 11, 2000)
<http://www.europa.eu.int/comm/dgs/justice_home/mission/resp_en.htm>
66Directorate-General of Justice & Home Affairs, ODYSSEUS, (last visited April 11, 2000
<http://www.europa.eu.int/comm/justice_home/project/odysseus/index_en.htm>
22
incorporation of the Schengen principles (regarding the free flow of citizens from member-
states across the ED, and the restrictions on asylum and immigration). Commissioner Vitorino
insisted that one of his priorities will be to assist the Commission with a family reunification
project that would help legal immigrants bring their families into the ED; in addition, the
Directorate will be creating a schedule with attainable benchmarks involving the "statutory
harmonization among the member-states regarding the rights and duties of legal immigrants in
the ED".68
The role ofthe European Court of Justice (ECJ) in shaping the current debate regarding
immigration into the ED has been almost non-existent. This is the natural result of the fact that,
as was already mentioned, migratory policy regarding non-ED citizens was dictated exclusively
by the individual Member States until the adoption of the Amsterdam Treaty in 1999.
Furthermore, the process of harmonizing immigration laws and procedures across the ED is far
from complete. As a result, the ECJ has yet to heard a case directly addressing the status of
immigrants under ED law. Naturally, once the process of harmonization of laws and
immigration procedures is fully underway, the intervention of the ECJ would be just a matter of
time.
The European Commission, the Council and Europarliament are all faced with the tasks
23
of finding a way to stem the influx of illegal economic immigrants (responding to social,
economic and political pressures from the member-states), while at the same time recognizing
the vital role that immigration will play in the future development of the ED. 69
As is the case in Spain and Italy, the main factor pushing for an increase in the levels of
immigration is the continued decrease of the population across western Europe. The average ~U
woman now has 1.45 children, with no indications that this will increase in the future.7o The
changing population dynamics in Europe, coupled with the great disparities in wealth between
the EU and its North African and Eastern European neighbors, can only mean that economic
immigrants will become an increasingly vital part of the socio-economic and political fabric of
European Union.
Large-scale immigration from outside the EU, however, has resulted in an increase of
anti-foreign and racist sentiment in many countries.7I The recent electoral success of Austria's
FPQ, the far-right party led by Jorg Haider, is but one expression ofthis trend. The strength of
the far-right is evident in the electoral success of other ultraconservative parties in recent
national elections: in Italy, the Alianza Nazionale obtained 10 % of the vote; in Switzerland, the
SVP received 23 % of the vote, and Norway's populist FrO garnered 12 %.72 The strong fascist
69 "A policy of keeping other out undermines free trade market goals and may not be reconciled with human
rights guarantees". Wolf, supra note 7 at 229.
70Statistical Office of the European Communities, EU Population Up Slightly Last Year, Driven by
Immigration: Births Below Replacement Levels (visited March 5, 2000)
<http://europa.eu.intlcomm/eurostat/Public/datashop .htm>
72 R.v. La Europa que saluda a fa Romana [The Europe That Uses the Roman (Fascist) Salute}, ABC
24
traditions of Spain (ruled by Franco from 1939 to 1975) and Italy (ruled by Mussolini from 1922
A- Solutions
1. Inclusion
The basic fear expressed by many Europeans (including Italians and Spanish) is the
"otherness"ofthe immigrants. The evidence is clear that not all foreigners are perceived as
threats. Citizens of EU member states, as well as of those (of European descent) from the United
States and the British Dominions (Canada, Australia, New Zealand and South Mrica) are, for the
most part, exempted from the suspicion and hostility reserved to Easter European Slavs and non-
However, there are indications that this disparate treatment is based not merely on purely
racist attitudes, but on the impression that non-Western European foreigners have undesirable
cultural, religious and behavioral traits that are incompatible with those of the mainstream
society.73 Thus, individual immigrants that successfully adopt at least some key outward
trappings of mainstream society (language, clothing, manners, etc.) are less likely to suffer from
discrimination and rejection. Opposition to increased immigration from outside the EU may be
tempered if those immigrants already residing there are better integrated into mainstream
society. The recent immigration laws from both Spain and Italy, as was pointed out, explicitly
73James F. Hollifield, Migration, Trade, and the Nation-State: the Myth ojGlobalization, 3 UCLA 1. Int'l L.
& Foreign Aff 595,603-604 (1998).
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Independent of government action, however, there are indications that social and cultural
traits among immigrant communities are being transformed. For example, the Italian daily La
Stampa reported that abortions in Italy increased 15% from 1980 to 1998: the reason for this,
increased abortions by immigrant women, who now have access to safe procedures, greater
rights and social protections, all of which was unheard of in their native lands.74 Immigrants and
politics and the arts across Europe, following the pattern already established by longer-
established immigrant and minority populations iIJ.France, Germany and the United Kingdom.
2. Control
the fears of loss of control by the member states, and exacerbated by the continued influx of
undocumented immigrants, this often facilitated by organized crime networks. This, however,
may result in that "harmonization" may be achieved as the result of a "race to the bottom", with
To achieve real control over the flow of immigrants, a more comprehensive policy
opportunities for legal entry must be expanded. Once again, the immigration policies of Spain
and Italy serve as examples, by offering amnesty to those workers already residing in their
countries, allowing for family reunification, and tying the number of new immigrants that would
74In vertiginoso aumento gli aborti tra Ie straniere [In Rapid Increase Abortions Among Foreigners}, La
Stampa (Milan), April 14, 2000 <http;//www.1astampa.it/redazione/ultima/redazione/menu/principale/immigrate.stm>
26
be admitted to real economic demands for labor. All these measures serve to discourage
bring in their relatives, and linking the availability of new work permits to the needs for labor
would send a clear signal to non-ED workers that there may not be employment opportunities
available foe undocumented entrants, thus eliminating the main attraction for immigration.
of the home countries of the largest immigrant groups in the ED. The creation of a "free trade
zone" between the ED and other countries of the Mediterranean basin (in North Africa and the
Middle East), scheduled for 2010, is an important first step.76 In addition, the ED has launched
other initiatives to establish closer economic ties with Mrica, Asia and Latin America. 77
Improved economic standards at home would serve to lessen the incentives for immigration in to
the ED. However, Europe's needs for labor will dictate that immigration would continue, albeit
B. Conclusion
By the end of the 21 st century Europe will have received the largest migratory influx of
peoples since the 4th century Germanic invasions that replaced a decaying Roman Empire with
the forerunners of the modem European nation states. The forces of globalization, free trade
(unimpeded flow of peoples, goods and services for the purpose of economic activity) and
demographics all point out to the fact that the ED will continue to rely on non-ED immigrants
77 Bosco Esteruelas, Comienza en Ef Cairo fa primera cumbre entre fa Union Europea y Africa [Today
Starts in Cairo the First Summit Between the European Union and Africa], EI Pais (Madrid) April 3, 2000
<http://www.elpais.es/p/d/2000403/intemac/elcairo.htm>
27
for much of its own future economic development.
Both government policies and the public's perceptions regarding immigration must be
based on real facts and not on unfounded fears and obsolete notions of nationalism and
sovereignty. In order to secure the future of the Union, the EU must adopt policies recognizing
that today's immigrants will provide the labor, intelligence and inspiration that a dying Europe
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