28 September 2013

Portability and De-dutification

'Social Security for Migrant Workers and Their Families in Australia' by Anna Katherine Boucher and Terry Carney in Social Security and Migrant Workers: Selected Studies of Cross-Border Social Security Mechanisms (Kluwer, 2013) edited by Blanpain, Olivier and  Arellano Oritz comments
Australia is often identified as an immigration success story. The economic performance of immigrants to Australia in recent decades has been lauded by government and from within academia. The depiction of Australian immigration as highly skilled and economically self-reliant underplays the role of welfare state retrenchment in redirecting the economic support provided to new immigrants by the state towards immigrant families. In this paper, we sketch the provision of social security payments to newly arrived immigrants across the economic and family reunification visa classes and since restrictions upon benefits first began in 1992/3. We also outline what trends towards temporary economic immigration represent for long-term welfare eligibility of new immigrants, and how changing source countries shift expectations around welfare portability and reciprocity for immigrants over the longer term. In doing so, we argue that these recent trends in immigration policy represent a movement away from residual state support for Australian citizens, permanent residents and newly arrived immigrants alike, towards a differentiated system, where familial support is expected for new immigrants but not for others in the Australian labour market. We also sketch the dissonance between this provision and international legal norms. This paper relies upon legal analysis and unpublished statistical data from the Continuous Survey of Immigrants to Australia.
'EU Citizenship without Duties' by Dimitry Kochenov in (2014) European Law Journal comments
 Many believe that duties should be at the essence of citizenship. This paper dismisses this view, using EU law as the main context of analysis, by making five interrelated claims.
1. There are no empirically-observable duties of EU citizenship;
2. Such duties would lack any legal-theoretical foundation, if the contrary were true;
3. Legal-theoretical foundations of the duties of citizenship are lacking also at the Member State level;
4. EU law plays an important role in undermining the ability of the Member States where residual duties remain, to enforce them;
5. This development is part of a greater EU input into the strengthening of democracy, the rule of law and human rights in the Member States and reflects a general trend of de-dutification of citizenship around the democratic world.
If these conclusions are correct, it is time to stop categorizing EU citizenship duties among the desiderata of EU law. ... The situation with citizenship duties is such, that there is a clearly decipherable trend of moving away from duties-inspired rhetoric and law, since the functions of uniformisation and discrimination that duties have been traditionally playing are of no use anymore for the modern democracies. The lack of a legal-philosophical ground for being serious about duties makes the arguments of those favouring a duty-based approach to citizenship even less appealing, particularly when not only the general duties-rights correlation, but also the moral duty to obey the law as such are not there. This is the context against which the empty word ‘duties’ in Article 20 TFEU is to be read. Moreover the Union actually reinforces the trends described above by indirectly obstructing the ability of the Member States where residual duties remain to enforce those, thus shielding some of their nationals from abuse. The Union clearly limits the possibility of the Member States to empower government authority vis-à-vis the individual. In this respect, what Weiler called the ‘fundamental boundaries’ is obviously affected by Union law. Weiler is absolutely right in stating that the balance between the ‘fundamental rights’ and ‘fundamental boundaries’ is at the core of any democracy and that joining the EU clearly narrows the ‘margin within which states may opt for different fundamental balances between government and individuals’ to a great extent. In fact, it means questioning the state on virtually any occasion – an additional guarantee against harmful or inexplicably regulation.
In this context, Joppke is absolutely justifiably ironical while critiquing Weiler’s view of citizenship eroded by rights and failing to act as a ‘shield against existential aloneness’. Reality has to be acknowledged and it is quite unequivocal: thick attachments, and with them the duties are largely gone in practice and would not be justifiable in theory either. Given that the same processes are going on at the supranational and the national level, there is no reason to believe that the Union where there are no citizenship duties and where rights and freedoms play the essential role as a starting point of legal thinking, should tolerate radically different ideologies in the Member States. To claim that the Member States should be free to do whatever they want with EU citizens who happen to be their nationals is legally unsound. The whole point of the Union is that our core values are shared after all.
Being straight about the word ‘duties’ mentioned in the Treaty helps better understand the functioning of EU law vis-à-vis the citizens: Kymlicka is absolutely right, claiming that in essence EU law is busy diffusing liberal nationhood. In the context of EU citizenship duties this means that by naturally opposing the totalitarian elements of the national conceptions of citizenship in the Member States, the EU also profoundly undermines their ability to have enforceable citizenship duties in place. Where such atavistic duties remain, EU law offers an easy escape, since its own fundamental freedoms always prevail. Classical case-law on requiring Member States to issue long-term residence permits to the Greek residents within their borders no matter what Greece thinks about these persons’ duty to serve in the Greek military is informative in this regard. If Greek law humiliates its citizens by refusing them passports unless they submit to the draft, the reaction of the ECJ requiring the issuance of residence permits without any Greek passports presented is only rational: liberty meets nationalism and prevails. By analogy, any time an EU fundamental freedom is in conflict with a local citizenship duty, the former is bound to prevail in the majority of cases. The decline in the Member States’ ability to impose the duties of citizenship is thus directly connected to the very essence of the EU’s constitutional arrangement, correlated with a necessary loss in the individual sovereign normative capacity. The EU allows for voting with one’s feet: those who dislike local citizenship duties are always free to go elsewhere. The EU thus functions as a promoter of the liberal de-dutification trend which is observable in the majority of contemporary democracies anyway.
It is not surprising that the Member States might view such developments as problematic: opening up citizenship to competition is akin to allowing the sale of land – thus removing another important feudal vestige – that happened in England, to give one example, less than a hundred years ago, which clearly threatened – and in the end was an important factor in changing – the social order of the day. Similarly, liberating citizens from non-refutable state claims to duties seriously changes the rules of the game. Instead of being coerced into performing actions deprived of any sense only because the State so wants, citizens are recognized as autonomous actors having the will of their own, of whom not only submission is required. When citizenship competition opens up, with national systems of citizenship losing, once and for all, their monopolistic status, this results in the creation of radically different bonds attachment between states and their populations, which is now based on choice, not only on the chance of birth. In the words of Davies, ‘Belgians are those who choose Belgium’. Competition between the Member States for the citizens who freely choose to call certain countries their home is thus the key element of the operation of the Internal Market that is valuable as a promoter of freedom. This kind of development is not contrary, but is in fact fully in line with a general trend in citizenship evolution described by Joppke, which co-accommodates increasing objective with decreasing subjective value of citizenship.
Kochenov concludes - Basing a legal system on rights, rather than duties, is not an arbitrary choice: it reflects the essential assumption that people should be free, which also includes freedom to determine the meaning of right and wrong, failure and success etc. in the context of the personal projects they pursue – a gift of freedom unthinkable in a system of pre-existing prescriptions which necessarily underlie the concept of duties. Should citizenship be pared with freedom, there is no place for duties within the auspices of this concept. This is exactly what we observed in the context of citizenship’s evolution. There has never been any ‘shortage of sheep-like subjects’ that the duty-oriented vision of citizenship promotes. Yet, active engagement and the reshaping of the right and wrong in any given context, including a supranational Union, necessarily requires a rights-based approach to membership. This article confined itself to making five interrelated points. ... In the light of these findings it is unquestionable that there is no room for EU citizenship duties in the edifice of EU law.