The London School of Economics and Political Science Not Quite White: The Gap Between EU Rhetoric and the Experience of Poles’ Mobility to the UK Dagmar Rita Myslinska A thesis submitted to the Department of Law at the London School of Economics and Political Science for the degree of Doctor of Philosophy London, July 2019 1 DECLARATION I certify that the thesis I have presented for examination for the PhD degree of the London School of Economics and Political Science is solely my own work other than where I have clearly indicated that it is the work of others. The copyright of this thesis rests with the author. Quotation from it is permitted, provided that full acknowledgement is made. This thesis may not be reproduced without my prior written consent. I warrant that this authorisation does not, to the best of my belief, infringe the rights of any third party. I declare that my thesis consists of 99,985 words. An earlier version of parts of Chapter 4 is published in ‘Retracing the Right to Free Movement: Mapping a Path Forward’ (2019) 27(3) Michigan State International Law Review (forthcoming). 2 ABSTRACT This thesis takes account of east-west power differentials to explore Poles’ experience of mobility and their positioning within EU and UK equality frameworks. Through a systematic content analysis of laws and legal discourse related to mobility and equality, I explore how the historical hierarchy positioning the west as superior and the east as unable to be fully ‘European’ can still be observed today in how EU and UK policies have pushed the eastern region and its nationals to the periphery of Europe and of whiteness. Whereas cleavage between EU ideals and EU citizens’ actual experience of its policies has been attributed to the EU’s limited competence, I propose that the EU project itself has been founded on and continues to propagate differentiation between the west and the east, at odds with the EU’s fundamental rights narratives. Notably, EU rhetoric has imagined the EU project as a western endeavour. Unequal accession policies and post-accession transitional mobility restrictions had helped to support the creation of a social reality that enables Polish movers’ racialisation and inequality, reinforced through the recently increasing willingness of EU institutions to limit workers’ access to mobility. EU institutions have tended to overlook mobile Poles’ experiences of inequality and exploitation, further naturalising their status as second-class EU citizens. The Racial Equality Directive has not accounted for them in its promulgation or interpretation, and has been especially unfit for protecting their rights. Similarly, movers have been absent from how equality is conceptualised in the UK. The Equality Act’s ineffectiveness appears compounded when it comes to protecting the rights of Polish movers, as revealed through my review of employment tribunal cases. Through such othering and omissions, the west’s relationship with the east has reproduced markers of coloniality. My research also suggests that critical race theory and critical whiteness studies frameworks should pay greater attention to contemporary transnational power dynamics and mobility. Only then can the concepts of racism and race begin to more accurately reflect the nuanced picture of micro-level racial and ethnic power relations in today’s globalised world. 3 ACKNOWLEDGEMENTS First and foremost, I am forever indebted to my supervisors, Nicola Lacey and Coretta Phillips, for their support, patience, and encouragement. I feel extremely fortunate to have had the opportunity to work under the expert guidance of such kind, attentive, inspiring, and brilliant scholars. Thanks also go to Floris de Witte for his generous and invaluable feedback on Chapters 4 and 5. This project also could not have been undertaken without the incisive upgrade critique from Damian Chalmers and Linda Mulcahy. I am also grateful to Meredith Rossner and Susan Marks for providing additional sources of guidance during my first year, and to Orla Lynskey for her ongoing mentorship. Finally, the thoughtful and sympathetic examination of this thesis by Peter Fitzpatrick and Samantha Currie turned my viva into an intellectually inspiring and greatly enjoyable exercise. The initial conceptualisation of this project owes much to my discussions with Dagmar Schiek. My research was also shaped through the insights of legal professionals and scholars who work with the Polish community in London. I am greatly indebted to Liliana Dominiczak, Judyta Kasperkiewicz, Ivona Supernat, Sebastian Szulkowski, and Anne White for taking the time to share their observations. My time at the LSE was immeasurably enriched through the support of my dear friends, including Aaron and Eloise Wu, Anna Bilkis, Ayse Yedekci, David Vitale, Rafael Lima Sakr, Roberto Sormani, Sarah Trotter, and Zeynep Kaparoglu. The friendship and mentorship of Philip Jimenez has been invaluable over the last few years. Finally, this thesis is a testament to the hard work and sacrifices of my parents, Iwonna and Jan. I could not have completed it without them. I dedicate this thesis to Alexander, for prompting me to grow and to love in ways I could not have imagined. 4 TABLE OF CONTENTS List of Tables …………………………………………………………………………….. 9 List of Acronyms & Abbreviations ………………………………………………………... 10 Chapter 1: Introduction …………………………………………………………. 14 1. Overview …………………………………………………………………….... 14 2. Background …………………………………………………………………… 15 3. My Research Questions and Goals …………………………………………….. 17 4. Literature Review …………………………………………………………….... 18 A. Research on EU Law ……………………………………………………..... 18 B. Research on CEE Nationals’ Mobility to the UK ………………………….. 19 5. My Theoretical Framework ……………………………………………………. 21 A. Critical Race Theory ……………………………………………………….. 21 i. CRT and CEE Movers ……………………………………………......... 23 ii. Responding to Critiques of CRT ……………………………………..... 25 B. Critical Whiteness Studies …………………………………………………. 25 i. Whiteness Studies and CEE Movers …………………………………... 27 ii. Responding to Critiques of CWS ……………………………………… 28 C. Other Potentially Relevant Analytical Frameworks ……………………….... 29 i. The Role of Class …………………………………………………….... 29 ii. Postcolonial Analysis ………………………………………………....... 30 6. My Methods ………………………………………………………………….... 31 7. Roadmap ……………………………………………………………………… 34 Chapter 2: EU Narratives ……………………………………………………….. 36 1. Introduction ………………………………………………………………........ 36 A. Methods and Sources …………………………………………………….... 37 2. The Significance and Dissemination of EU Myths …………………………….. 38 A. The Role of Myths in EU Law …………………………………………….. 38 B. The Dissemination of EU Myths …………………………………………... 39 3. Fundamental Rights Narratives ………………………………………………... 42 A. Foundational Fundamental Rights Myth and Derivative Myths …………… 42 B. Integration Goals within Fundamental Rights Rhetoric …………………… 44 C. Economic Imperatives within Fundamental Rights Rhetoric ……………… 46 4. The Role of Shared (Western) Heritage in EU Mythologies ………………….... 47 A. The Roots of a Shared Cultural Heritage ………………………………….. 49 B. Othering of the CEE Region …………………………………………….... 50 5. Conclusion ……………………………………………………………………. 53 Chapter 3: Poland’s Accession and its Aftermath ……………………………..... 56 1. Introduction …………………………………………………………………... 56 2. Pre-Accession Conditions in Poland …………………………………………... 59 A. Poland Before the Fall of Communism …………………………………… 59 B. Poland in the Aftermath of 1989 ………………………………………….. 60 C. Role of the EU Before 2004 ………………………………………………. 63 D. Conditions in Poland in the Run-up to Accession ………………………..... 65 3. The Accession Process ………………………………………………………... 68 A. The EU’s Overall Approach ………………………………………………. 69 B. The Safeguard Clauses …………………………………………………….. 71 5 C. Poland’s Perspective ………………………………………………………. 73 4. Aspects of the Acquis Most Damaging to Poland ……………………………... 75 A. Agriculture …………………………………………………………….…... 77 B. Other Sectors ……………………………………………………………... 78 C. Effects on the West ……………………………………………………….. 79 5. Conclusion ……………………………………………………………………. 80 Chapter 4: The Right to Free Movement, and Poles’ Mobility ………………... 84 1. Introduction …………………………………………………………………... 84 A. The Significance of the Free Movement Right …………………………….. 85 B. Westerners’ Opposition to CEE Mobility …………………………………. 87 C. Existing Scholarship and Roadmap ………………………………………... 91 2. Overview of the Right to Free Movement ……………………………………... 92 3. The Context Leading to the Imposition of Transitional Derogations ………….. 95 A. Poles’ Access to EU States Before 2004 ………………………………….... 95 B. EU Institutions’ Approach Towards Poles’ Mobility ………………………. 97 C. EU-15 States’ Approach Towards Poles’ Mobility ……………………….. 100 D. Transitional Mobility Derogations ……………………………………….. 101 E. Comparison to Mobility Restrictions During Earlier Enlargements ……… 105 4. Mobility During the Transitional Period ……………………………………... 107 A. EU-15 Workers’ Mobility Rights ………………………………………… 107 B. Polish Workers’ Rights ………………………………………………...… 109 C. Polish Self-Employed Movers’ Rights …………………………………… 112 D. Polish Economically Inactive Movers’ Rights ……………………………. 113 E. The UK’s Approach to Polish Movers During 2004-2011 ……………….. 114 i. The Worker Registration Scheme ……………………………………. 114 ii. The ‘Right to Reside’ Test …………………………………………… 116 5. Post-2011 Freedom of Movement Laws ……………………………………... 118 A. Workers …………………………………………………………………. 118 B. Economically Inactive Movers (Including Jobseekers) …………………… 120 C. CEE Nationals ………………………………………………………...… 122 6. CEE Nationals’ Experience of Mobility