The EU Asylum, Immigration and Border Control Regimes: Including and Excluding: The “Deserving Migrant”

AuthorNadine El-Enany
Published date01 June 2013
Date01 June 2013
Subject MatterArticle
Nadine El-Enany*
It can be argued the EU Reception Conditions Directive constitutes an improvement
on international refugee law in that it creates entitlements to welfare for asylum
seekers. However, this development is limited in two important respects. First, the
Directive has oft en either not been fully implemented or has been poorly implemented,
resulting in vast diff erences in practice and inadequate levels of protection across
the Union. Second, the eff ect of the EU’s immigration and border control practices
is to limit access to EU territory for all migrants, irrespective of their motivations
for moving. Migrants’ departure points are being pushed further afi eld and their
journeys to the EU are becoming more dangerous. Th

us, the EU’s highly restrictive
immigration and border control policy de facto undermines the protective elements
that might otherwise result from the Reception Conditions Directive.

Keywords: access; asylum; EU; reception; refugee; social security
While in recent years ‘welfare provision has … shift ed to the centre of current
debate around asylum’ (Sales 2002: 457), this has only been possible because of the
initial access to welfare benefi ts granted to refugees, particularly during the decades
following the adoption of the Convention Relating to the Status of Refugees of 28 July
1951 (Refugee Convention). Th
e logic of the welfare state implies the existence of
Dr Nadine El-Enany is a Lecturer in the School of Law at Birkbeck, University of London. Address:
Malet Street, London WC1E 7HX; tel.: +44 (0)207 631 6504; email:
European Journal of Social Security, Volume 15 (2013), No. 2

Nadine El-Enany
boundaries that distinguish those who are members of a national community from
those who are not. Gary Freeman writes that ‘national welfare states are by their
nature meant to be closed systems’. However, he recognises that ‘the welfare state is
necessarily at least partially open to its external environment. International trade, the
mobility of capital, and especially the migration of labour continuously intrude on
and challenge the endogenous nature of the welfare state’ (Freeman 1986: 52). Despite
welfare traditionally being considered to be ‘selective’, with ‘[t]hose considered
unfi t, undeserving or outside the nation … consistently … excluded’ (Hayes 2000:
63), refugees, considered to be “deserving”, have for some time been treated as an
exception and permitted to access the benefi ts of the welfare state.
In 1933, the Convention Relating to the International Status of Refugees was
adopted. In reference to the groups of refugees protected under the Inter-Governmental
Arrangements of 1922, 1924, 1926 and 1928, the Convention stipulated that:
Refugees shall be ensured the enjoyment of civil rights, free and ready access to the
courts, security and stability as regards establishment and work, facilities in the exercise
of the professions of industry and commerce, and in regard to the movement of persons,
admission to schools and universities.
is was the fi rst time governments had agreed to guarantee socio-economic, as well
as civil and political, rights to refugees through legal measures. Moreover, the welfare
approach to the protection of refugees embodied in the 1933 Convention led the way
to the inclusion in the 1951 Refugee Convention of a wide range of socio-economic
rights ensuring a certain level of substantive protection, in some cases equal to that of
nationals of the host country. Th
us, with the adoption of the Refugee Convention, the
refugee was born in legal terms into a regime which entitled her to socio-economic
rights that could be claimed against the state.
e Refugee Convention contains a number of substantive rights. Articles 17–24
guarantee to recognised refugees certain welfare rights including housing, education
and social security entitlements. Th
is constitutes an unprecedented commitment from
states to guarantee welfare rights to non-nationals. However, the manner in which the
Convention grants these rights to refugees is somewhat restricted. It does not set out the
content of the social and economic rights that are to be given to refugees, but states that
parties to the Convention are to accord to refugees the same level of protection of these
rights as to some other specifi ed group (Holborn 1975: 168). Th
ere are four diff erent
standards of treatment set out in the Convention. Th
e least demanding standard, found
in Article 7(1), is that ‘a Contracting State shall accord to refugees the same treatment
as is accorded to aliens generally’. Th
e other three standards are more favourable
treatment than that accorded to foreigners generally in respect of certain rights. Th
are, fi rst, ‘the same treatment as is accorded to nationals’. Th
us, Article 22(1) states that
parties to the Convention ‘shall accord to refugees the same treatment as is accorded
to nationals with respect to elementary education’. Th
e same standard of treatment is

e EU Asylum, Immigration and Border Control Regimes
also required with regard to public relief and assistance in Article 23, to labour law and
social security, subject to a number of qualifi cations in Article 24, to fi scal charges and
taxation in Article 29, and, aft er three years of residence in the country or where the
refugee has a spouse or a child with the nationality of the country of residence, to wage-
earning employment in Article 17(2). Th
e second more favourable standard requires
‘the most favourable treatment accorded to nationals of a foreign country’. Th
is is
applicable with regard to wage-earning employment where the refugee has not fulfi lled
one or more of the requirements to entitle her to national treatment (Article 17(1)).
ird, ‘treatment as favourable as possible and in any event not less favourable than
that accorded to aliens generally in the same circumstances’ is to be granted in relation
to ‘the right to engage on his own account in agriculture, industry, handicraft s and
commerce and to establish commercial and industrial companies’ (Article 18), the
right to practice a liberal profession subject to certain conditions (Article 19), the right
to obtain housing ‘in so far as the matter is regulated by laws or regulations’ (Article 21)
and with respect to the right of access to higher education, the recognition of foreign
qualifi cations, the remission of fees and the award of scholarships (Article 22(2)).
As to the content of the social and economic rights included in the Refugee
Convention, Article 17(2) states that ‘restrictive measures imposed on aliens or the
employment of aliens for the protection of the national labour market shall not be
applied to a refugee who was already exempt from them on the date of coming into
force of this Convention for the Contracting State concerned…’. It is clear from this
provision that refugees are not guaranteed national treatment. Only those who are
already exempt from national restrictions at the time of the coming into force of the
Convention are protected from the imposition of labour market restrictions, or those
who fulfi l one or more of the conditions set out in the Convention.1 Th
us it does not
seem to prevent the imposition of future restrictions. Such restrictive measures are
designed to protect the national labour market and include the fi xing of quotas to limit
the number of foreigners in general or specifi cally in certain fi elds of employment, as
well as provisions which only allow foreigners to be employed where there are no
nationals to fi ll available positions (Weis 1995: 148).
Article 20 on rationing was described as an ‘innovation’ in the Convention (Weis
1995: 159) in guaranteeing that, where a rationing system exists for products in short
supply, refugees are to be ‘accorded the same treatment as nationals’. Th
ough the
provision is clearly a refl ection and a reminder of Europe’s then recent war experiences,
it is signifi cant that refugees were placed on an equal footing with nationals with
regard to provision of basic goods in time of war or emergency.
Article 21 states that, in so far as the provision of housing is governed by law or
‘subject to the control of public authorities’, states ‘shall accord to refugees lawfully
staying in their territory treatment as favourable as possible, and, in any event, not
less favourable than that accorded to aliens generally in the same circumstances’.
See Article 17(2)(a), (b) and (c).
European Journal of Social Security, Volume 15 (2013), No. 2

Nadine El-Enany
Although this provision was eventually adopted, a number of states opposed the
inclusion of a provision on housing during negotiations on the Convention. One of
these was Britain, whose representative stated that it would be diffi
cult for the country
to guarantee equal treatment with regard to housing due to the severe housing
shortages prevailing at that time (Weis 1995: 161).
Article 22 provides for ‘the same treatment as is accorded to nationals with respect
to elementary education’ for refugees and ‘treatment as favourable as possible, and,
in any event, not less favourable than that accorded to aliens generally in the same
circumstances, with respect to...

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