The legal status of foreign nationals

In Europe, the legal framework governing the statuses of foreign nationals has undergone radical changes in the past one and a half decades or so, and it continues to evolve. The formal introduction of European Union citizenship (see chapter 3) with the 1992 Maastricht Treaty, the continuing expansion of (mobility) rights enjoyed by EU citizens, the development of a common EU status for long term residents from third countries as well as the definition of rights to family reunion tied to that status (see text box 6 in chapter 3) – all these developments suggest a continuous expansion of rights enjoyed by non-nationals as well as a narrowing of the gap between citizens’ rights ‘at home’ and outside their country of nationality. Looked at more closely, however, actual developments are much more complex and contradictory than the narrative of a progressive expansion of ‘citizenship rights for non-citizens’ suggests. What we find instead are different outcomes for different legal categories of migrants.

Long before the harmonisation of immigrant policy at EU level, Tomas Hammar’s influential study Democracy and the Nation State (1990) noted a significant convergence of European states’ immigrant policies with respect to the rights granted to permanent foreign residents. Hammar observed that long-term immigrants more often than not enjoyed a relatively secure residence status as well as other rights, for example equal access to welfare entitlements and sometimes even political rights. This led him to conclude that in fact a new status has emerged, which he called ‘denizenship’. Hammar’s primary focus was to defend denizenship from a normative perspective, interpreting it as a sensible alternative to citizenship for first generation migrants (see chapter 1). This point was taken up by Yasemin Soysal (1994) who interpreted the emergence of denizenship as an indication of the decline of nationality and the rise of ‘post-national citizenship’ anchored in international human rights institutions rather than being tied to membership of a particular state, a view echoed by Saskia Sassen (1996) and others.