1 Georgia Mavrodi European University Institute SPS Department [email protected]
Top-down, bottom-up, and from the sides: the Europeanisation of Greek policies of immigration and its limits
Migration Working Group, EUI, 5 May 2010
© Georgia Mavrodi 2010. Please do not cite or quote
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Table of contents
I. Introduction………………………………………………………………...….2
II. Greek immigration policy developments, 1990 – 2005……………….5
III. The “Europeanization” of Greek immigration policy across domestic institutions…………………………………………………………………..…9 i. Domestic policy legacies ……...... 9 ii. The Executive ………………………………11 iii. The Parliament……………………………..19 iv. The Courts………………………………… 23
IV. Concluding remarks: what can we learn from the Europeanisation of the Greek immigration policy? …...... ……………….....28
References....………………………………………………………………...…30
Annex……………………………………………………………………..…....35
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Introduction
The recent debates concerning the declining role of the sovereign state in defining and formulating immigration policy has been significantly enhanced by the developing European integration process and its implications for migration and immigration policy in the member-states, in the accession states, and in the periphery of the enlarged EU. In the public, media, and academic discourses, immigration legislation and policy practices in the EU member states since 1990 have been often attributed to the impact of “Europe”, namely to the effects that the process of European integration may induce on national policies. These claims concern policy developments in countries both within and outside the EU, and they are often connected to the debate on “Fortress Europe”, that is, on the restrictions imposed by EU member states on new entries of non-EU citizens into the common market.
Sometimes, the countries of southern Europe that became hosts to immigration in the late 1980s are additionally charged with the implicit or explicit assumption that their recent transformation into a net receiver of migration movements makes them more receptive to the influence and impact of European institutions of immigration control and immigrant integration (Geddes 2003: 361). Due to their alleged lack of previous immigration policy infrastructure they are depicted as a more or less “virgin ground”, on which EU policy objectives, principles and means are transplanted to the national level of policy-making through mechanisms of obligation, international or supranational learning, or socialisation.
I would like to question the validity of such assumptions. First of all, “new” immigration countries need make sense as an analytical category in immigration policy research. Moreover, the plethora of works comparing the policy developments in big European countries that constituted the major immigrant recipients after the Second World War (France, Germany and the United Kingdom) is accompanied by the lack of research dealing with smaller countries or with those that have recently become immigrant hosts. In this sense, the distinction between “new” and “older” immigration countries has left its mark in the methodology of comparative immigration policy research in the European context.
I have chosen to address these concerns by paying attention to Greek immigration policy and its development in the last two decades. The case of Greece appears promising in at least three respects: it has been most often categorised as a “new”
country of immigration; the vast majority of its immigrant population are non-EU nationals; and the country has been firmly embedded in the process of European integration for the last three decades.
If the claims concerning the impact of EU policies on “new” immigration countries are correct, Greece is a most likely case for observing the effects of EU integration on national immigration policies. Moreover, contrary to the prevailing arguments concerning the “Fortress Europe”, a series of recent amendments of Greek legislation on the rights of legally resident non-EU citizens display clear indications of liberalisation. National policy change in this field has resulted in more security of residence and protection of immigrants’ rights, including those that facilitate further legal immigration such as the right to family reunification. This “paradox” informs the formulation of three main questions: how is the liberalisation of Greek immigration policy change to be explained? What impact, if any, did the ongoing cooperation on immigration policy at the EU level have on Greek immigration policy developments and why? What form did this impact take, under what conditions, and what mechanisms did it ‘use’?
In searching for answers, the lens of analysis is directed toward the Greek immigration policy change from 1990 to 2005 across domestic institutions and policy areas. Domestic policy change and its direction is therefore the dependent variable in this research project. The rules and regulations on the entry and residence of third country nationals for employment purposes and family reunification offers the core policy area under study because employment and family reunification have been the reasons for the vast majority of non-EU citizens’ migration to Greece. I begin by tracing the chronological development of the policy-making process within the Greek legislature, the executive and the judiciary across time. Thus, my analysis combines a single in-depth case study with the comparative method.
A basic finding of this study is that Greek immigration policy since 1990 has relied on institutional and policy continuities of previous decades much more than one might imagine when thinking of “new” immigration countries. The latter are not a “tabula rasa” in immigration issues and their previous rules, regulations, and domestic institutional legacies concerning the entry and residence of aliens should be taken into consideration in order to understand their present immigration policies.
A series of Greek restrictive regulations and practices concerning immigration controls during the 1990s had been already adopted in the 1970s and 1980s, long before “Fortress Europe” was established and developed. At the same time, however, Greece lacked the regulation of immigrant integration including the mentality of protecting immigrants’ rights. Until 2005, this provided for a significant point of “mismatch” between the Greek immigration regulations and the developing set of (binding) common EU norms. This has been responsible for significant EU pressures for national policy change.
The second major finding concerns the role and impact of the common EU immigration policy. Although the latter’s on-going institutionalisation has affected the timing and the direction of domestic policy change, the extent of this effect has been mediated by domestic institutions and policy legacies and it has been differential. In turn, the degree and mode of adaptation of domestic policy to the European norms has been conditioned by varying degrees of entrenchment of domestic institutions.
Finally, EU membership alone cannot account for all European effects on Greek immigration policy. “Europeanization” has also included mechanisms of horizontal information transfers from other EU member-states as well as some effects of the norms of the Council of Europe. However, EU membership has been by far the most powerful institutional framework for inducing or facilitating the liberalisation of Greek immigration policy on legally resident third country nationals in the last two decades. These findings support a reconsideration of the nature, policy dynamics and limitations of “Fortress Europe”, and they invite further scholarly research on the immigration policies of other EU member states.
II. Greek immigration policy developments, 1990 – 2005
Between 1990 and 2005, three immigration laws passed the Greek Parliament, each of which, while building on previous legislation, brought changes to the Greek legal order dealing with entry, residence and rights of aliens. Despite great emphasis on immigration controls and on fighting clandestine immigration, more and more rights have been granted to legally resident aliens that resulted in greater security and continuity of residence. This, I argue, reveals a mid-term development in Greek immigration policy towards a dual model of policy which seeks to control new entries while also providing for more chances for immigrant integration.
The initial policy response to immigration was the Aliens Act in 1991, which adopted the principle of “zero-immigration” and verified the full competence of the Greek Police in issues of entry, residence and removal of aliens. This approach dominated Greek legislation up to the late 1990s and it emphasised external border controls, restricting immigration of third country nationals of non-Greek ethnic origin, safeguarding internal security, and fighting illegal immigration. Opportunities for legally immigrating and residing in Greece were very much restricted, as were the chances for becoming eligible for naturalisation or being granted permanent resident status and the right to family reunification. Similar to the provisions of the old 1929 Law on aliens, the 1991 Immigration Act prohibited in principle any employment activity of third country nationals, unless they were provided with annual work permits1. After five years, a foreign worker should leave the country or apply for special renewable biannual residence and work permits. Only after fifteen years of continuous legal residence and employment was a third country national eligible to apply for a permanent residence status, provided that contributions to the social insurance system had been made for at least 10 years.
As a result, up to the year 2000 there was hardly any permanent residence permit issued to third country nationals admitted for employment purposes in Greece (Groenendijk, Guild & Barzilay 2000: 50-51) while marriage to a Greek citizen did not substantially affect a foreign resident’s chances of being granted a work permit (Fakiolas 1999: 195). In parallel, strict provisions aimed at cracking down illegal immigration and penalising illegal employment of third country nationals. Measures and penalties included fines, confinement, incorporation in the list of “undesired aliens”2 and expulsion (Papassiopi-Pasia 1995: 79).
On the positive side, the 1991 Aliens’ Act was the first to provide explicitly for the family reunification of third country nationals. Family members included the spouse, the minor children and the dependent parents. Nevertheless, the right was granted following a minimum of 5 years of continuous legal residence, a condition that was very difficult to meet. Foreign citizens legally residing in Greece were provided with full access to the social security system and their children were granted access to public primary and secondary education. However, these provisions affected only a
1 Law 1975/1991, Article 23 2 Including a third country national into the list of “undesired aliens” meant the prohibition of his/her future entry into the country for a period of years.
limited number of foreign workers and their families, who could immigrate legally and continuously maintain their legal status for the period required. It was only in 1998 that the first regularisation of clandestine immigrants signalled a change in policy, followed by the new Aliens Act in 20013. While maintaining strict immigration control measures, the new Law transferred the competence in legal immigration issues to the Ministry of the Interior. An immigration regulation system was introduced, setting annual quotas for the legal entrance, residence and employment of immigrants4. The 2001 Aliens Act provided for yet another regularisation round and established more favourable provisions for the activation of certain important rights for third country nationals, such as the right to family reunion and long-term residence. Changes included the reduction of the minimum period of continuous legal residence required for the activation of the right to family reunion from 5 to 2 years5, and for the acquisition of permanent resident status from 15 to 10 years. The liberalising tendencies were accompanied by restricting the eligibility of family members of third country nationals to the spouse and the minor and unmarried children. Nevertheless, it has been noted that the new prerequisites were more relaxed and made family reunification more feasible than had been the case in the past (Cavounidis 2006: 361). Certain rights were now extended to legally resident third country nationals, including the rights to social security, education, and freedom of movement and settlement within the country, albeit with some restrictions on the basis of national security concerns.
Four years later, Greek legislation made a further liberalising step. The 2005 Aliens’ Act6 set the duration of the first residence permit to vary from 1 to 3 years, and the minimum duration of a residence permit following the first renewal was set to 2 years in the majority of cases. For the first time, 5 years of continuous legal residence granted a right to long-term resident status, offering guarantees for the security of residence and protection from expulsion. Third country nationals admitted on the grounds of family reunification were now granted an autonomous right of residence after 5 years. A more favourable status was introduced for third country nationals who
3 Law 2910/ 2001. 4 For the first time, the Law clearly differentiated between seasonal and permanent employment as well as between paid- and self-employment. Provisions on self-employed aliens were more favourable than those on paid employment. A mechanism for determining the number and kind of vacancies for foreign citizens was established: it involved a number of Ministries, the employment agency (OAED), and the local government authorities. 5 Provided that the applicant possessed the adequate means for the maintenance and health insurance of the persons involved 6 Law 3386/2005 was debated in the Greek Parliament in July 2005
are family members of Greek citizens or of nationals of other EU member states: the duration of their first residence permit was increased to 5 years and they were granted the right to permanent residence after 5 years of continuously residing in Greece. Most types of residence permits also entitled their holders to the right to work, albeit with some time-restrictions in some categories of entry. Finally, and contrary to previous legislation, the 2005 Aliens Act included the first general and vague provisions on immigrant integration policy. The latter have been articulated in greater detail in recent years, following subsequent amendments to aliens’ legislation in 20077.
Security of residence, provided by long-term resident status, provides immigrants “with a firm base for orientation towards settlement and integration in the new society” (Groenendijk, Guild and Dogan 2001: 5). In this sense, Greek immigration policy has been increasingly departing from the policy provisions of the early 1990s, which were principally aiming at immigration control (Triandafyllidou and Veikou 2002: 202), towards a dual policy model that differentiates on the basis of legality of entry and residence. Strict controls on new legal and clandestine immigrant entries are envisaged, while more rights and greater security and continuity of residence are guaranteed to those third country nationals who are already legally resident in Greece.
This differentiation is by no means trivial in its effects. Alongside the limited numbers of third country nationals who had immigrated legally to Greece under the previous legal framework, it has also involved hundreds of thousands of clandestine immigrants and their families who have taken part in three successive regularisation rounds in 1998, 2001 and 20058. It is not possible to establish with certainty how many among them have fallen back to illegality between successive regularisations. However, the latter included many among the beneficiaries of the increased protection of rights that has been gradually established for legally resident aliens.
What is the explanation for these liberalising policy developments? What factors account for the successive changes in Greek immigration legislation and under which
7 Law 3536/2007; Law 3613/2007. 8 According to the official data, over 371 000 third country nationals applied to regularise their resident status in the first, short-term stage of the first regularisation in 1998, of whom 212 000 or 57% continued to the second stage (Cavounidis 2006: 360). Finally, over 150 000 third country nationals were regularised (Cavounidis 2002). In 2001 approximately 350 000 third country nationals filed applications for the second regularisation. It is estimated that the rate of falling back into illegality between successive regularisations has been high, but clandestine immigration also continued throughout the period under investigation (Cavounidis 2006: 361).
mechanisms? What role has the institutionalisation of immigration policy norms at the EU level played in these developments?
III. The “Europeanization” of Greek immigration policy across domestic institutions
Domestic policy legacies
The 1991 Immigration Act was the first attempt to respond to the increasing (and predominantly clandestine) immigration flows in the early 1990s It has been perceived as the first stage of institutional build-up in a country that had previously lacked any experience with managing immigration flows. At the same time, the Act was criticised as a manifestation of the securitisation of Greek immigration policy, promoted by the Schengen Agreements and imposed on Greece due to the wish of the Greek governments to accede to the Schengen System. I would argue that this claim, which treats a new immigration country as an institutional tabula rasa and a virgin ground for European influence, is an oversimplification of policy developments, one that obscures significant domestic institutional and policy continuities.
On the contrary, I will try to demonstrate that EU policies of immigration controls did not cause but rather reinforced compatible Greek policies. The latter were based on domestic policy preferences and institutional legacies, and the degree and form of adaptation to EU norms has been conditioned by the degree of continuity or innovation in the domestic institutions that were competent in immigration issues. Moreover, the recent character of the immigration phenomenon has increased the need for problem-solving information and learning, which consecutive Greek administrations chose to draw from “Europe”.
To begin with, the competence of the Ministry of Public Order (MPO) (i.e. the Greek Police) in immigration issues and the “securitisation” of the policy on aliens was by no means a novelty of the 1991 Immigration Act. For decades the Greek police had been responsible for aliens’ issues including the issue and renewal of residence permits, the control of entry and residence of foreign nationals, the removal of illegally resident aliens, as well as land border controls. In fact, controlling entry and residence of foreign citizens had long been considered as an issue relevant to Greek national security. This is eloquently shown by the fact that aliens’ issues had been an area of competence for the Department of Aliens, a branch within the Directorate of
State Security of the Greek Police. The same Department began the handling of immigration matters in 1987 (interview with MPO2, 30/11/2007).
Continuity was not to be observed only in relation to the formal allocation of policy– making powers but also concerning policy-making practice. As in the 1970s and the 1980s, when regulation of aliens’ issues was a task to perform mainly through the issuing of Ministerial Decisions and Police administrative circulars, the 1991 Immigration Act provided the executive with extended powers. It allowed immigration policy-making to remain away from parliamentary scrutiny by authorising the issuing of a series of Ministerial Decisions and Presidential Decrees.
Ministerial circulars of the Ministry of Public Order from the mid-1980s reveal that there had been four main Greek policy guidelines concerning legal immigration: a) the exceptional character of authorising entry and residence of third country nationals for working purposes; b) the direct link of their entry and residence to specific needs of the domestic labour market and their dependence on specific employers; c) the prevention of long-term settlement of third country nationals beyond a period of 5 years; and d) the short-term duration of residence and work permits (the rule being one year and renewable), which allowed for a frequent exercise of immigration controls and the constant reaffirmation of state sovereignty on aliens’ issues (Ministry of Public Order 1986). During the first half of the 1990s, these guidelines were preserved intact in the 1991 Immigration Act and in a series of Ministerial Decisions of the Ministries of Public Order and Employment9.
In the early 1990s, therefore, continuity existed also in the policy tasks and directions concerning third country nationals. In addition, some policy measures of immigration control during the 1990s were in fact a mere repetition of legislation dating back to several decades. The transfer of responsibility to carriers for the control of travel documents was to be found in the old Greek Laws on aliens of 1929 and 193210. Furthermore, internal immigration controls pursued by residence providers, which were adopted by the Ministry of Public Order in the mid-1990s11, did not differ essentially from analogous policy measures of the same Ministry dating back to the late-1970s12. During the first years of major immigration inflows, therefore, Greek
9 Law 1975/1991; Ministerial decisions 4803/13/8a of 1992, 4803/13/9a of 1992. 10 Laws 4310/1929 and 5405/1932 11 Ministerial Decision 4803/13/4-:∃ of 1995. 12 Ministerial Decision 9760/28-134012 of 1977.
immigration policy-making displayed a great degree of continuity rather than institutional and policy innovation.
In the early 1990s, new entries of third country nationals from the neighbouring Balkan and eastern European states became extensive in numbers and they were characterised by increasing clandestine immigration. In 1993, the Ministry of Public Order estimated the number of illegal foreign residents at 395.285 in 1993. By contrast, only 76,200 foreign nationals had valid residence permits (Katsoridas 1994: 25). In its efforts to control the unauthorised entry of immigrants and secure Greek borders, the Ministry of Public Order sought policy solutions in bilateral police cooperation with neighbouring countries and in the European integration process. However, the state of Greek foreign relations in the early 1990s did not provide a favourable framework for progress in bilateral cooperation (Koppa 2004: 51-55), including immigration management (Fakiolas 1997: 18).
In comparison, the intergovernmental level of cooperation among EU member states offered better opportunities. To a high degree, the Greek policy objectives on restricting immigration and securing borders in the early 1990s were compatible with the broad policy directions and the norms contained in the intergovernmental agreements (the Schengen Agreements, the Convention on Crossing External Borders, the 1990 Dublin Convention) and in the non-binding rules of soft-law (Recommendations, Decisions, etc) agreed in Justice and Home Affairs.
To conclude, the securitisation of Greek policy response to immigration flows in the early 1990s has not been the result of “imposition” of immigration policy norms emanating from the European level. Rather, it was the product of institutional and policy continuities based on domestic arrangements that had been established long before Greece became a host to extensive immigration. Thus, the EU level of cooperation became a choice and a promising venue to purse domestic policy objectives. If there was a EUropeanisation impact in the early years of extensive immigration flows to Greece, one may at best argue that cooperation at the European level may have reinforced previously formulated and compatible domestic policy priorities.
The Executive
Two Ministries, those of Public Order (MPO) and of Interior (MI), were competent in immigration issues between 1990 and 2005. The first accounts for pre-established domestic policies and institutions; and the second serves as a case of new domestic policy structures and novel institutional build-up. As I will try to demonstrate below, in both Ministries EU competence on immigration issues provided for an institutional framework that facilitated information transfers concerning other countries’ national policies and legislation, with an emphasis put on older immigration countries among the EU member states.
Additionally, both Ministries displayed significant degrees of resistance each time EU norms contradicted domestic policy and practice or met with the need to significantly adjust domestic institutions. However, the reasons for and the mechanisms of that resistance differed. In the Ministry of Public Order the resistance to EU policy norms was conditioned by the latter’s conflicts with long-established policy legacies and stable policy preferences. In the case of the Ministry of Interior institutional innovation, and the corresponding initial lack of policy expertise and institutional resources, inhibited the full participation of its administration in the EU level of policy-making. In turn, this phenomenon increased the gaps between domestic policy practices and EU norms, and triggered domestic resistance against what was seen as “externally imposed constraints”.
· The Ministry of Public Order
The policy of the MPO during the 1990s seems to be a convincing case of “Europeanization”. This is all the more so because common EU norms under the intergovernmental 3rd Pillar were contained in non-binding policy instruments and thus exercised less adaptation pressures on domestic policy-making. Despite these characteristics of the institutional fabric at the EU level, Greece was implementing a series of EU Recommendations, Decisions and Resolutions. By 1999, either immediately or with some delays, Greece had been implementing the policy principles and instruments agreed to in the Council from 1994 to 1996. Greek policies had to undergo some minor adaptations concerning the readmission agreements and their protocols with Balkan and eastern European countries13 and the expulsions of
13 Greece signed and ratified bilateral readmission agreements with Croatia (1995), Slovenia (1995), Romania (1995), Bulgaria (1996), Poland (1996), Latvia (2000), Lithuania (2001), Italy (2000), France (2001), and Hungary (2005). An Agreement with Turkey on cooperation in criminal matters, terrorism, organised crime, illegal trafficking of narcotics, and illegal immigration was signed and
third country nationals. The Council policy principles on combating illegal employment had caused no adaptation pressure, as they had been fully covered by the 1991 basic Immigration Act and other domestic legislation in police affairs (General Secretariat of the Council of Ministers of the European Union 1999: 2-3).
However, the same cannot be said for those non-binding EU norms that focused on the protection of rights of third country nationals. On the contrary, it seems that the MPO has been unwilling to embrace the conception of immigrants as carriers of rights, and it resisted the adoption of legislative provisions and policy measures in this direction. The deficient adaptation to the few “soft” EU principles adopted in 1996 concerning long-term residents supports the argument. Despite the intergovernmental decision-making setting of the 3rd pillar up until 1999, there were fundamental conflicts between the 1996 Council Resolution on the status of long-term resident third country nationals14 and Greek policy and legislation15. Two years after the adoption of the Resolution, the MPO had not adopted any policy measures nor did it plan to do so (General Secretariat of the Council of Ministers 1999b: 19-20). The Ministry claimed that the Resolution was already being implemented by the 1991 Immigration Act (General Secretariat of the Council of Ministers 1999b: 22 - ff 1). In fact the norms set in the Resolution were never implemented. The status of long-term residents was finally adopted in 2005 by the Ministry of Interior, pursuant to the relevant EU Directive16.
In order to understand the direction of MPO policy measures and their interaction with the EU level of policy making, one must look at its institutional legacies. During the 1990s, aliens’ issues were under the competence of the Aliens’ Department of the State Security Directorate (in 2000, the Department was upgraded to an independent
ratified in 2001. It includes a readmission clause (Law 2926/2001, Article 8), implemented by a bilateral Protocol (Law 3030/2002). See Papasiopi-Passia (2005: 521-551). 14 Council Resolution of 4 March 1996 on the status of third-country nationals residing on a long-term basis in the territory of the Member States, OJ C 080, 18.03.1996. 15 Among other things, Greek policy did not recognise the status of long-term residents. After 15 years of continuous legal residence and 10 years of social security contributions (instead of 10 years of legal residence, which was the maximum limit set by the Resolution), it was in the absolute discretion of the Minister of Public Order to award a third country national an indefinite leave to remain (Law 1975/1991 Article 13). The latter was to be repealed if the third country national exited Greece for a period longer than 2 months (instead of 6 months set in the Resolution) (Law 1975/1991 Article 18). Finally, in the 199 Immigration Act there was no explicit reference to the rights of legally resident third country nationals, regardless of the duration of their stay. 16 Council Directive 2003/109/EC of 25 November 2003 concerning the status of third-country nationals who are long-term residents, OJ 16, 23/1/2004.
Directorate). The Department was in close cooperation with the Directorate on International Police Cooperation, which had been active in European policy developments ever since the intergovernmental cooperation within the TREVI framework (interview with MPO2, 30/11/2007). As the latter’s area of competence focuses on international police cooperation in combating crime (Interpol, Europol, bilateral relations), the MPO’s European activity and its diffusion into its immigration sections was primarily shaped by the predominance of concerns to enhance security instead of protecting the rights of third country nationals.
Thus, there has not been a general endorsement of EU norms by the MPO administration. Rather, the implementation of EU norms in domestic policy has been a part of a “pick and choose” practice in supporting the Ministry’s domestic policy priorities. The latter, in turn, have been informed by long-established policy legacies, which focused on issues of policing and security rather than protecting rights.
Beyond the selective adaptation to EU norms, however, the MPO’s exposure to the realm of European and international relations has had a number of long-term effects on its internal policy-making. A major consequence of participating in the EU institutional framework of cooperation in immigration issues is the exchange of information and the communication of policy preferences among member-states. For the political leadership of the MPO that was translated into taking into account immigration policy developments in other member states while devising and implementing the Ministry’s domestic agenda. It also meant that they became the addressee of pressures emanating from the EU bureaucracy and other EU countries.
The MPO looked for policy models in the other Mediterranean countries, in France, and in Germany, on the understanding that Greece was facing similar immigration challenges as they did. At the same time, the leadership of the MPO became subject to strong pressures emanating from the DG Justice and Home Affairs of the European Commission and from the governments of western “older” immigration countries (interview with Michalis Chrisochoidis, 13/11/2007).
However, none of these developments led to safeguarding and/or extending the rights of third country nationals – that is, the issues in which the need to adapt domestic to EU policy has been the greatest. On the contrary, long established policy legacies have proved strong enough to resist “misfitting” EU policy developments and delay domestic policy change.
· The Ministry of Interior
The Ministry of Interior (MI) entered the scene of immigration policy-making in the very late 1990s, during the process of drafting the 2001 Immigration Act. The latter transferred the competence on legal immigration from the MPO to the MI. But in contrast to the former, the MI had no former policy experience or institutional capacity in immigration management. In absence of any kind of continuities derived from the past, institutions had to be built up “from scratch”. That also meant, at least in the initial stages, a need for information, guidelines and policy models to be looked for outside the Ministry’s institutional environment.
This institutional “window of opportunity” for new policy elements and learning opened at a time that was crucial for the development of a common immigration policy at the EU level. The timing of the domestic re-allocation of competences, and the first stages of building up internal structures of policy-making in the MI, coincided with the negotiations at the EU level on the adoption of binding EU legislation concerning legal immigration of third country nationals. Contrary to the case of the MPO during the 1990s, binding EU norms included the Directives on family reunification and long-term residents and they were accompanied by the formal obligation for adaptation of domestic legislation.
The 2001 Immigration Act provided for the establishment of completely new administrative structures in the MI. Vertically, a new Aliens and Immigration Directorate was created in the central administration in Athens, comprising of three departments. One of them, the Immigration Policy Department, became responsible for the formulation of Greek immigration policy and for keeping track of immigration policy developments at the EU level. Horizontally, the Act provided for the establishment of the Migration Policy Institute (IMEPO) to be supervised by the Minister of Interior, aiming at conducting research on immigration issues that would contribute to the formulation and implementation of immigration policy17. Since 2004, IMEPO assumed a broadened role as an advisor to the government and as an increasingly basic player in immigration policy issues.
17 Law 2910/2001 Article 73.
However, both of these structures became fully operational after 2004 and they did not have a decisive impact on the change of legislation in 2005. Moreover, until 2005 institutional innovation does not seem to have brought the liberalisation of rights of third country nationals. Rather, it was the binding character of EU policy instruments (Directives), their incompatibilities with pre-existing Greek legislation, and the deadlines set for their implementation by the EU institutions that became the central factor for the liberalising change of Greek legislation.
The MI administration became fully active in formulating policy positions and participating in EU policy-making only in 2004 (interview with MI1, 3/8/2007). Thus, between 2002 and 2004 while the density of institutions and policy developments at the EU level was increasing, the MI lacked the full institutional capacity to participate in immigration policy-making at the EU level. That meant that the role of the Ministry of Interior was minimised while the significance of the policy-making processes at the EU level increased. Thus, the earlier the adoption of EU Directives the greater the possibility that EU norms would present significant incompatibilities with the Ministry’s domestic policy. In turn, that would increase the possibility that the central administration would consider EU norms as “externally imposed constraints” and the undeveloped internal structures would inhibit the domestic implementation of EU norms.
Indeed, interviews conducted with MI personnel and primary documentation support this line of argument. The most demanding case was the transposition of the Directive on the status of long-term resident third country nationals (adopted in 2003). The status and the rights associated with it had to be set up completely from scratch because it had never been provided for by previous Greek legislation. Accordingly, it was characterised as a “very difficult Directive to transpose and implement”, which conflicted Greek policy in many respects. The latter included the provisions on entry and residence of third country nationals, the categories of third country nationals allowed to exercise mobility, and the Greek policy on issuing national visas.
The effort of the MI administration to postpone and minimise the effects of the Directive as much as possible was significant. It took four years from the adoption of the Directive to fully transpose it into domestic legislation. As an additional precondition for applying for long-term resident status, the draft 2005 Immigration Act set five years of previous legal residence following the date of publication of the Directive in the Official Journal of the European Communities (Ministry of Interior
2005: 126)18. In addition, the detailed transposition of the Directive in domestic legislation took place in 2006 and 2007, following great delays in formulating and issuing national legislation to implement the 2005 Immigration Act.
MI administrators explain this pattern by referring to the administrative culture of their Ministry, which had not yet been fully adapted to the realities of EU policy- making, as well as to organisational and learning deficits that are common in the Greek public administration as a whole. They relate the mode of implementation of EU policies to the lack of active participation in the policy-making stages prior to the adoption of EU legislation. That, in turn, is attributed to the lack of experience in EU affairs, the adoption of indifferent stance on the side of many administrators, and the lack of investment on human capital and transfer of know-how (interview with MI2, 17/7/2007).
Despite these patterns, and similar to the case of the MPO, EU membership has provided the primary framework for selective learning concerning immigration policy developments. That is clearly shown by the activities of the Immigration Policy Institute (IMEPO) after 2004, which reveal a preference for the study of immigration legislation and policy practices of older immigration countries at the international level, including selected EU member-states. IMEPO institutionalised bilateral contacts with immigration authorities of selected EU member states, including Italy, the Netherlands, and Germany (IMEPO 2006: 17-18)19. Before and after the adoption of the 2005 Immigration Act the research activities intensified. A comparative study of French, German, Spanish, Italian, Dutch und British legislation and practice was commissioned in 2005 concerning the long-term resident status, family reunification, and the fees for the issuing of residence permits (IMEPO 2005). Its scope reveals the search for information on policy models that could be implemented in Greece upon adapting to the relevant EU Directives20. A year later, IMEPO financed another study of the immigrant integration policies in Germany, France, United Kingdom, the Benelux countries, Italy and Portugal (Cavounidi et al 2006). In the introductory note it was argued that the investigation of the differential experiences and learning in
18 Following strong objections by the opposition parties alongside heavy criticism on the side of NGOs, this provision was withdrawn during parliamentary debates. 19 According to the President of the IMEPO, there was a dual purpose in this strategy: on the one hand IMEPO sought to inform foreign authorities of policy problems that Greece faced concerning immigration, and to project Greek policy preferences; on the other hand the aim was to derive from other countries’ policy practices and experiences in devising domestic immigration policy (interview with Alexandros Zavos, 16/7/2007). 20 Law 3386/2005.
other EU countries could be an important contribution to the Greek public debate and a useful input during the formulation of forthcoming Greek domestic policies (Cavounidi et al 2006: 8-9).
To summarise, the policy learning activity and international exchange institutionalised by IMEPO has had a strong European component, with an emphasis on EU member states that are also “older” immigration countries. Within this framework, knowledge transfers have been primarily used in devising domestic policy measures upon implementation of binding norms contained in EU Directives or non-binding policy principles, such as those concerning the integration of third country nationals.
There is a surprising dimension in these findings. Despite the differences in their previously established legacies and resources, the Ministries of Public Order and of Interior displayed similar characteristics in their relation to the establishment of common immigration policy norms at the EU level. Both institutions “dragged” “Europeanization” when EU norms displayed considerable misfits with pre-existing domestic policy arrangements21. In this regard, it becomes important to note that varying degrees of institutional innovation and continuity at the domestic level have been leading to similar patterns of domestic response to “Europeanization”, albeit accounting for different mechanisms thereof.
Nevertheless, Greek policy change concerning the rights of third country nationals who are legally resident did take place in recent years. Indeed, one of the main purposes of the 2005 Immigration Act was to provide the framework for adapting Greek legislation to EU binding norms in force (Ministry of Interior 2005:2) before the expiration of the deadlines set for this purpose. The most eloquent example is the introduction of the long-term resident status, which has greatly increased the legal basis for continuity and security of residence in Greece. In this regard, adaptation to the Directive added a clearly liberalising direction to the Greek policy on legal immigration.
The liberalisation of Greek immigration policy owing to the adaptation to the Directive on long-term residents provides an incident that could potentially question the well-known argument that EU immigration policy norms have rested on the
21 Between the two Ministries, the Ministry of Interior displays a slightly better record concerning the speed of transposition of EU Directives but the difference is not as big as to allow for the conclusion that resistance to policy change has been significantly weaker. See Annex.
lowest common denominator among EU member states. Adaptation to the EU family reunification norms, albeit restrictive, has also provided for the explicit articulation of rights. Finally, the first provisions on integration policy (taking into account recently agreed non-binding EU principles) were inserted in Greek legislation in 200522, followed by more detailed legislation in 200723.
The Parliament
Between 1990 and 2005, there were three basic Immigration Acts (Laws on Aliens) approved by the Greek Parliament24, and a series of minor amendments to particular provisions of the former. Similarly to the rest of southern EU member-states, Greek immigration legislation has been developing in parallel to the institutionalisation of a European immigration policy. The first Greek basic Immigration Act (1991) was adopted 5 years after the Schengen Agreement (1986), and almost synchronically to the Dublin Convention (1991) and the first transfer of national competence on immigration issues to the European Union (1992).
The dominant argument concerning the development of immigration and asylum legislation in southern European countries in the 1990s was that EU policies had a restrictive impact on national immigration policies (Freeman 1995; Baldwin-Edwards 1997, 1999). Authors mostly cite the example of obligations derived by the Schengen arrangements in emphasising the importance of adopting policies previously formulated at the European level in order to be able to achieve the desired participation in European institutional arrangements. In short, it was argued that adapting to common European immigration policy norms was a pre-condition for joining common European institutions. Therefore, the “Europeanization” of Greek immigration policy might be seen as an issue of conditionality.
Indeed, the pressure to adopt and implement those policy provisions that would secure the Greek full participation in Schengen was revealed during parliamentary debates on the 1991 Immigration Act. Most of the references made to International Law and its developments at that time concerned European treaties, and the vast majority of the latter were focused on the provisions and policy framework of the
22 Law 3386/2005. 23 Law 3536/2007 24 Law 1975 of 1991; Law 2910 of 2001; and Law 3386 of 2005.
Schengen Treaty. Furthermore, the Deputy Foreign Minister acknowledged that a number of certain articles of the Law were designed to be Schengen-adaptive (article 14 on family reunification of legally resident third country nationals was one among them). (Parliamentary plenary sessions 15/10/1991: 210).
However, it would be interesting to investigate whether the eagerness to adopt European immigration policy norms continued also after Greece had fully joined in the process of establishing a common European immigration policy. Once membership in common European institutional arrangements on immigration issues is established, a major source of EU impact on national legislation is naturally to be sought in binding legislation adopted at the EU level and incorporated into the national legal order. Therefore, the mechanism to be focused on is that of formal obligation, which has gained importance especially after the coming into force of the Amsterdam Treaty (1999).
The first EU Directives on issues of legal immigration were adopted in 2003. In Greece, the second basic Immigration Act was adopted in 2001 and therefore its provisions cannot be attributed to the impact of binding EU legislation. Even in the absence of formal obligation, however, the possibility of voluntary incorporation of non-binding European norms or draft Directives deserves to be investigated. After all, the changes made in 2001 to family reunification provisions were defended as ‘fully echoing current [policy] understandings and tendencies that have been formed in the European Union’ (Ministry of Interior 2001: 2). During parliamentary debates the government claimed that the draft amendments to immigration legislation were keeping a balance between Greek domestic interests and the country’s international, mostly EU, obligations. The Deputy Minister of Interior made extensive references to the gradual development of immigration policy at the EU level, to the conclusions of the European Summit at Tampere, and to the drafting of EU Directives (Parliamentary plenary sessions 6/3/2001-afternoon; 13/3/2001).
However, despite proposals of the Scientific Committee of the Parliament (2001: 5) and of the National Committee on Human Rights (2001: 3-4), and notwithstanding the pressure exercised by left-wing parties the government refused to include more favourable provisions on family reunification based on the Commission proposals under discussion25. Instead, the Minister of Interior argued that the government
25 Requests included the reduction of the minimum period of legal residence prior to the activation of the right to family unification from two years to one.
preferred to deal with national Greek concerns, such as the legalisation and registration of illegal residents. Furthermore, it was considered inappropriate to incorporate draft EU provisions prior to them becoming obligatory: Greece would first wait for the formal adoption of EU norms and then adjust its policy accordingly (Parliamentary plenary sessions 20/3/2001: 6134; 27/3/2001: 6348).
Therefore, the significant change of the provisions on family reunification in 2001 cannot be considered as a result of obligations derived by EU membership. Nor, contrary to the efforts of the opposition parties, have they been the outcome of voluntary incorporation of non-binding or draft EU policy provisions. As we should avoid ‘ascribing political and institutional changes to the impact of the EU without first being sure that it was actually the EU that drove these changes rather than domestic or other international factors’ (Geddes 2003: 27), attention should be paid to the argumentation that cited these factors. Indeed, rising xenophobia in Greece was one of the main concerns during parliamentary debates on immigration legislation in 2001 and it was claimed that the Greek public appeared to be the most xenophobic among the fifteen EU member states (Parliamentary plenary sessions 6/3/2001- afternoon: 16_ 34).
Moreover, the governing socialists and the parties of the left focused their attention on the problems that extensive clandestine immigration had caused in the preceding decade, namely the rising xenophobia and criminality rates, the social exclusion of immigrants, and the increasing corruption in the public administration. The preference was for third country nationals to be joined in Greece by their families for reasons of social integration and prevention of immigrant criminality. Furthermore, third country nationals admitted on grounds of family reunification were also granted the right to work without time restrictions in order to prevent their employment in the informal sector (Parliamentary plenary sessions 20/3/2001: 20_ 49).
Additionally, in 2001 it was hoped that the legalisation of clandestine immigrants and their integration in Greek economic and social institutions would support the ailing social security and pensions system. The contribution of immigrant workers into the country’s economic development was widely acknowledged during the debate in Parliament. The contribution of immigrant workers into the country’s economic development was widely acknowledged, and the opposition even accused the government of tolerating illegal immigration with the aim of lowering inflation and
employment costs in preparing for joining the EMU (Parliamentary plenary sessions 6/3/2001-afternoon: 6546).
By contrast, a series of provisions of the 2005 Immigration Act were the result of Greek obligation to harmonise Greek legislation with adopted EU Directives. This fact has been clearly stated by the government in its introductory report on the 2005 immigration act (Ministry of Interior 2005: 2)26. Examples include the introduction of the status of long-term residents, more favourable treatment of third country nationals who are family members of EU citizens, and more guarantees for family reunification. The importance of the mechanism of obligation for the liberalisation of Greek immigration legislation in 2005 is evident in the detailed listing of EU norms in the introductory report to the draft 2005 Immigration Act (Ministry of Interior 2005).
Another, indirect impact of EU membership was present in parliamentary debates on immigration throughout the years, although its concrete outcomes cannot easily be traced. During the debates on all three Immigration Acts, governmental reasoning as well as opposition argumentation partly relied on the policy developments taking place in the European Union. Thus, parallel to the process of Greek legislative change, current and prospective EU policy developments were used as a frame of understanding and reference for domestic immigration policy. In general, the importance of EU membership in shaping domestic parliamentary debates on immigration is also confirmed by the fact that references to political, social and economic developments in the EEC/EU and its member states were dominant among discussions on the international dimension of immigration in all three major legislation initiatives (1991, 2001 and 2005) (Annex, Diagrams I & II).
According to the former Deputy Minister of Internal Affairs, the 2001 Law was a blend of provisions derived from previous Greek legislation, domestic experience based on the first legalisation round of clandestine immigrants in 1998 (Parliamentary plenary sessions 6/3/2001-afternoon: 5657-5658; 13/3/2001: 5931), and from immigration legislation in other countries (personal communication with Leonidas Tzanis, 8/1/2005). It has been argued that it was “a technocratic choice to study mainly the systems of Germany and France” (Interview with Th. Tsiokas, 5/1/2005, my translation), because
26 In total, 32 out of 98 articles of the law served the full or partial incorporation into the Greek legal order of various Council Directives, as well as EU secondary law.
“one the one hand, in Germany a great many Greeks lived and they had experienced both positive and negative aspects, so they could contribute, whereas in France on the one hand they, too, had the equivalent experience, but on the other hand their experience was related to a percentage [of immigrants] coming to us from African and Asian countries (...) where it is other cultures and needs we are talking about” (Interview with Th. Tsiokas, 5/1/2005, my translation).
These two countries also dominated in the references made by Greek parliamentarians to foreign countries in parliamentary debates. Among them, three issues were of importance: the social and political developments related to immigration (such as xenophobia and the role of right-wing anti-immigrant parties); their experiences, practice and policy concerning immigration flows (such as the long-term character of the immigration phenomenon, the rise in the size of the immigrant population in due course of time, the “zero” immigration policy legacies); and the comparisons with their immigration legislation (Annex, Diagram III). Apart from being the two major powers driving the European unification process, Germany and France have been major “older” immigration countries in western Europe and two main destinations of Greek emigrants after World War II.
At the same time, Europe (most importantly the EEC/EU but also European countries individually) dominated among references to the international community. Gradually, and in contrast to parliamentary debates in 1991, the interest of the Greek MPs also grew for the developments in other southern European, “new” immigration countries (Italy, Spain, and Portugal).
The Courts
In migration research, the role of national judiciaries in the “older” immigration countries of western Europe has been highlighted as a major source of strengthening aliens’ rights (Joppke 1999, 2001; Guiraudon 2000). National courts’ rulings have been identified as impacting on the capacity of the state to implement the rules that result from its policy-making authority. As a policy venue, the judiciary is claimed to be more favourable to aliens’ rights, by bringing into the wider debate notions like equality before the law, proportionality, and protection of the human rights of the individual (Guiraudon 1997: 246-247). This bears direct relevance to the protection of immigrants’ rights, since national immigration policies are by definition grounded on the distinction between citizens and aliens.
In Greece, formal domestic institutions are favourable to the diffusion of international norms of human rights protection into the legal order. The Greek Constitution of 197527 stipulates adherence to the rules of international law (Articles 2 and 5), as well as the prevalence of generally accepted rules of international law and ratified international treaties over any contrary provision of domestic law (Article 28). Thus, the Greek constitutional order favours the domestic implementation of international norms by providing for their increased importance for Greek jurisprudence and for the control of their compatibility with domestic law. Moreover, due to the lack of a Constitutional Court, all judges can check the constitutionality of domestic legal norms set by parliamentary and administrative acts (Skouris & Venizelos 1985: 10).
Therefore, all judges are entitled to check the compatibility of domestic legal acts with their superior international legal norms. These formal institutions are particularly inviting for the influence of international norms, such as the EEC/EU Treaties and the European Convention of Human Rights. The same holds for the jurisprudence of international and supranational Courts, like the European Court of Human Rights (ECtHR) and the European Court of Justice (ECJ).
Yet, between 1990 and 2005 the actual impact of European Courts’ rulings was minimal or absent altogether. In the case of the ECJ, the strict limits that the Amsterdam Treaty imposed on its judicial activism in the area of Justice and Home Affairs was coupled with the reluctance of Greek Courts to engage the ECJ into the protection of immigrant rights. Unlike other EU member-states28, there was no Greek reference for preliminary ruling concerning rights of entry, residence or employment of third country nationals in the areas of free movement of persons; freedom of establishment; justice and home affairs; and freedom, security and justice. Despite the overall significant increase in preliminary references made by the Greek Courts during the last decade29, cases relating to third country nationals’ entry and residence – including those concerning family members of EU citizens – were entirely absent. Furthermore, there was no landmark decision in Greek case-law on the rights of third country nationals explicitly referring to ECJ jurisprudence.
27 With its subsequent amendments in 1986 and 2001. 28 Most references for preliminary rulings on rights of third country nationals originate from Germany, Belgium, the Netherlands, and the United Kingdom. 29 Most preliminary references concern cases of freedom of movement of goods, taxation, agricultural policy, and external relations.
More significant was the judicial activism concerning the protection of immigrants’ rights that involved the norms of the European Convention of Human Rights (ECHR) and the jurisprudence of the ECtHR. Between 1993 and 2007, eight cases reached final judgements by the ECtHR, and Greece was found in violation of the ECHR in all of them. The emphasis of individual petitions against Greece by third country nationals was put on the issues of fair trial, domestic legal remedies and protection from inhuman and degrading treatment during detention. Invocation of ECHR articles that bear direct relevance to issues of immigration policy for third country nationals (family reunification and discrimination) was very rare.
This profile lied in contrast to that of the “older” immigration countries of western Europe, where cases based on the protection of immigrants’ family life (Article 8 ECHR) have been prominent. This differentiation clearly reflected the primary concern of Greece’s newly arrived immigrants to safeguard the respect of their rights related to first entry and residence.
However, from 1990 till 2005 there was only one case that had an impact on Greek immigration legislation (Dougoz vs. Greece). Dougoz was one among a series of cases of prolonged, unlawful and inadequate conditions of detention of aliens pending expulsion, resulting in their inhuman and degrading treatment (under Article 3 ECHR) and accompanied by violations of Article 5 ECHR concerning the lack of domestic legal remedies to challenge detention orders. Following the ECtHR ruling on Dougoz, the Greek legislation on administrative expulsion of third country nationals was amended in a significant way in 2001 (Sitaropoulos 2003: 52), now including guarantees for judicial review and maximum detention time limits.
Such an impact, however, was the exception rather than the rule. Whereas in other European countries (such as France and the Netherlands) the case-law of the ECtHR has had a limited effect on immigration policy measures and practice (Guiraudon 1997: 103-109), Greek immigration policy-making seems to ignore it. This claim is supported by the archives of Greek parliamentary debates on immigration acts since 1991, where the case-law of the Court of Strasbourg is nowhere mentioned. The same observation holds true for the reports of the Scientific Committee of the Greek parliament on the draft immigration bills (1991, 2001, 2005), for the advisory opinions of the Council of State concerning Presidential Decrees on immigration policy, as well as for the suggestions and proposals of human rights organisations that were taken into account in the drafting of immigration bills.
This practice deserves particular attention because it has been taking place despite significant favourable developments at both the international and the domestic level. During the 1990s, the Court in Strasbourg reaffirmed residence and family reunification rights for third country nationals, while European developments in immigration policy issues were increasingly becoming a major source of information and “learning” for Greek domestic institutions of policy-making, especially for the Greek Parliament.
The limited effect of European norms dominated also in the constitutionality checks of Presidential Decrees by the Greek Council of State. The latter made use of its powers to intervene in the policy making process by providing detailed suggestions for the articulation of policy provisions in draft Presidential Decrees, but the emphasis was clearly put on the respect for and implementation of Greek constitutional norms and domestic legislation in force. The norms of the ECHR or the jurisprudence of the ECJ and the ECtHR were not invoked anywhere. Only in 2006, in the case of the draft Presidential Decrees transposing the EU Directives on the right to family reunification and the status of long-term residents, did the Council of State refer to EU norms on entry and residence of third country nationals30.
On the other hand, the development of domestic jurisprudence displayed a mixed picture. Notwithstanding the primary focus on upholding domestic legal norms, lower Courts have also invoked European and international instruments of human rights protection in protecting or even extending the rights of third country nationals. In this regard, freedom of association is a case in point. As the Greek Constitution protects the right of association for Greek citizens (Article 12), until the late 1980s Greek courts had accepted that the establishment of associations with full alien membership was permitted, provided that they would be administered by Greek citizens31. On the occasion of an application of Albanian citizens of Greek ethnic origin to establish a students’ association in 1993, a first instance Greek Court in Athens proceeded with checking the compatibility of the Greek Civil Code (Article 107) with the ECHR. Contrary to domestic legal provisions, the Court ruled that there should be no discrimination concerning the freedom of association on the basis of ethnic origin and citizenship, lest for reasons of aliens’ political activity, national security, public
30 Council Directive 2003/9/EC, OJ L 31/18 (6.2.2003); Council Directive 2003/109/EC, OJL 16/44 (23.1.2004); Presidential Decree 131/2006, Government Gazette 142/A´ (13.7.2006); Presidential Decree 150/2006, Government Gazette 160/A´ (31.7.2006). 31 Α≅8ΑΔ!2 4311/1984; Α≅8ΑΔ!2 2449/1986.
morals and health, and protection of rights and freedoms of other individuals32. Three years later the same Court recognised that Greek legislation was incompatible with ECHR and the Greek authorities owed to allow the establishment of associations with full alien membership. Restrictions should be based only on reasons of national security related to the political activity of aliens33. This decision set a precedent for other cases, too34. Finally, in 2006 it was ruled that establishment of aliens’ associations should be allowed even if they relate to alien political activity due to the fact that the ICCPR awards greater protection for aliens’ freedom of association than the ECHR does35.
As the case of association rights demonstrates, international and European norms may have considerable effects on protecting and even enhancing the rights of third country nationals when they are diffused in domestic case-law through institutional windows of opportunity and the mechanisms of developing domestic jurisprudence. Although the Greek judiciary has had its contribution in the liberalisation of treatment of immigrants, in the majority of cases this has been done on the basis of domestic legal norms.
The analysis of the role of Europe on the immigration policy-making output of the Greek executive, legislature, and courts shows that domestic institutions responded differently to the institutionalisation of EU competence and the resulting incentives and pressures for adaptation to EU norms. The Greek parliamentarians were open to discuss and consider the international developments in immigration policy issues, and they have focused especially on those within the European Union. In their debates on legislation on third country nationals, there was a diachronic debate on information, policy models and paradigms abroad, especially among the policies and experiences of selected “older” immigration countries.
The opposite was the case of the Greek judiciary, which was reluctant to enter into dialogue with European institutions. Although Greek Courts contributed to the liberalisation of treatment of third country nationals by safeguarding and even extending their rights, in most cases they did so on the basis of domestic constitutional norms and Greek legislation. The “Europeanization” of Court’s rulings
32 MΑΔ!2 3518/1993. 33 MΑΔ!2 4300/1996. 34 Inter alia, MΑΔ 1,ΦΦ∀8 5251/2004. 35 MΑΔ!2 322/2006.
has consisted of the impact of ECHR norms when judicial activism and domestic litigation decided to join hands and make use of the Greek constitutional order and the resulting opportunities for the domestic diffusion of international norms.
Finally, the case of the executive displays a mixed picture. Long-established administrative institutions adapted to both “soft” and “hard” EU norms, provided that the latter were compatible with pre-existing domestic policies and preferences. In the case of considerable “misfits”, “Europeanization” was resisted for as long as possible in the form of policy inertia. By contrast, the design of new institutions established greater opportunities for information transfers concerning other EU member-states’ policies and the incorporation of EU norms into domestic policy. Nevertheless, the initial lack of well-developed structures, human resources, and expertise precluded full participation in the EU process of policy-making. This resulted in the production of binding EU norms that were particularly “misfitting” pre-existing Greek legislation. Thus, “Europeanization” was resisted in the form of transposition delays and restrictive implementation, as EU norms were treated as externally imposed constraints.
IV. Concluding remarks: what can be learn from the Europeanisation of the Greek immigration policy?
The study of the Europeanisation of the Greek immigration policy from 1990 until 2005 confirms some hypotheses that are put forward in the general literature on “Europeanization”. “Misfits” between national and EU norms, policies and institutions are an important factor if “Europe” is to have a causal impact on domestic policy change. However, the responses to “Europeanization” pressures are differential (Heritier et al 2001). The literature on “Europeanization” claims that responses to adaptation pressures vary due to the differential institutional settings across countries. The first finding of this study is that “Europeanization” effects might also vary across institutions within the same state. Within the three basic domestic institutions of rule- making, the degree and mode of diffusion and/or adaptation to the European norms has been conditioned by internal structural and/or policy legacies.
Also the effort of European executives to minimise adaptation costs by uploading their policy preferences to the EU level and intervening in the implementation of EU norms is a pattern that I came across in this study. The third concluding point concerns the importance of long-established domestic institution and policies, which
prove self-perpetuating and resistant to change, when the latter is not supported by the constellation of domestic policy preferences.
Another set of findings, however, offer new insights into the Europeanisation and immigration debates. The analysis of Greek immigration policy-making between 1990 and 2005 reveals that institutional and policy continuities have played a significant role, contrary to what one might imagine when thinking of “new” immigration countries. The restrictive Greek immigration legislation that dominated for the most part of the 1990s displayed an easily identifiable continuity with rules, regulations, and domestic institutional legacies dating back to the 1970s and 1980s. Thus, the roots of Greek immigration controls had been planted long before “Fortress Europe” was established and developed. Morever, cooperation within the EU became a choice and a promising venue for the Greek executive to pursue domestic policy objectives. One may at best argue that the participation in cooperation at the European level may have reinforced previously formulated and compatible domestic policy priorities. This finding contradicts the widespread claim that EU integration in immigration issues has driven the restrictionist and securitising turn of immigration policies within the EU, especially in its southern member-states.
As the Greek case demonstrates, “new” immigration countries who are EU members do not necessarily display different characteristics when they interact with the EU level of policy-making. They, too, interact with other member-states and EU institutions on the basis of their pre-existing policy legacies, their resources and their policy preferences. However, there is a point in which they differ from “older” immigration countries: their lack, in the initial years of extensive immigration, of policies on immigrant rights and integration. Therefore, the claims concerning the special impact of EU integration on “new” immigration countries need to be specified on particular policy areas.
The binding EU norms on legal immigration, especially the Directive on the status of third country nationals who are long-term residents, caused a major “misfit” with Greek domestic policy arrangements. Moreover, the obligation for adaptation within certain certain deadlines cared for significant adaptation pressure and the eventual liberalisation of Greek legislation. In turn, the mere existence of these “misfits” and high adaptation pressures casts doubts on another widespread claim, namely that common EU norms on immigration reflect the lowest common denominator among the member-states.
Finally, throught the period under consideration in this study, the Greek executive and parliament looked horizontally at other member-states' policies and immigration experiences. This phenomenon concerned mainly Germany, France and the southern European member-states. Although it is difficult to establish whether this activity actually resulted in concrete policy-making outcomes, it was undoubtedly triggered and facilitated by the Greek participation in the common EU immigration policy arrangements. International norms on the protection of human rights, such as the European Convention on Human Rights, had some limited impact on the liberalisation of Greek legislation on immigrants’ rights through their diffusion in the Greek domestic jurisprudence and law-making. However, EU membership has been by far the most powerful institutional framework to induce or facilitate the liberalisation of Greek immigration policy on legally resident third country nationals in the last two decades.
These findings invite for a reconsideration of the nature, policy dynamics and limitations of the Europeanisation of national immigration policies - including the debate on “Fortress Europe”. They may also provide the basis for the articulation og new hypotheses and their comparative testing across the “new” immigration countries within the EU.
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Annex
Transposition of EU Directives by the Ministries of Public Order and Interior
Adoption of Directive Full domestic Time span of transposition of transposition Directive Ministry of Public Temporary protection Presidential Decree 5 years Order July 2001 80/2006 Minimum standards for Presidential Decree 4 years, 10 months the reception of asylum November 2007 seekers January 2003 Minimum standards for Presidential Decree 4 years 3 months the qualification of 96/2008 July 2008 third country nationals as refugees (…) April 2004 Minimum standards for Presidential Decree 2 ½ years* granting and 90/2008 July 2008 withdrawing refugee *in 2007, the Ministry status December 2005 of Public Order became part of the Interior Ministry Interior Ministry Family reunification Presidential Decree 2 years 10 months September 2003 131/2006 July 2006 Family reunification of 5 years* recognised refugees PD 167/2008 October 2008 *until 2007, refugee issues were under the competence of the Ministry of Public Order Long-term resident Presidential Decree status November 2003 150/2006 July 2006 &
Ministerial Decision 3 years 9 months No 16298/2007 on integration (language and civilisation) tests August 2007 Freedom of movement Presidential Decree 3 years 3 months for EU citizens and 106/2007 June 2007 their families April 2004 Entry and residence for Presidential Decree 3 1/2 years studying purposes 101/2008 July 2008 December 2004 Entry and residence for Presidential Decree 2 years 11 months purposes of scientific 128/2008 September research October 2005 2008