Tracing Root of Movement Rights: EU and Mercosur
By Kim Rust
The attribution of regional free movement rights is not a European phenomenon. Academia and political discourse, however, often frame EU policy as the masterpiece among a sparse variety of approaches which grant free movement rights to regional nationals. The oscillations of Brexit and wave of refugees into Europe over recent years have brought to the surface tensions and uncertainty surrounding movement rights in the EU, which Ursula von der Leyen and a newly composed Commission will be called upon to respond to in the near future. This blog post is a reorientation in our approach to free movement, stepping away from the euro-centric approach which often characterises academic and political discussion. The following contribution offers a comparison between free movement in the EU and Mercosur. South America is ill-explored in migration literature, though it represents a rich ground for comparison. This blog builds upon the work of Dr Diego Acosta in his recent publication The National versus the Foreigner in South America, and strives to map a series of “membership configurations” in the EU and Mercosur. These configurations help to identify the bases of movement rights for regional nationals, test the strength and accessibility of these rights and draw conclusions as to whether movement rights can be more concretely guaranteed, and liberally, indiscriminately attributed.
Part I: Free Movement in the EU
Several examples of attempts to strengthen intra-regional movement rights have emerged across the globe, from the renowned EU policy, to established free movement regimes in Mercosur, ECOWAS and the Caribbean, among others. The following covers a spectrum of policies, examining supranational and transnational mechanisms which give rise to movement rights.
- Supranational Citizenship: The EU Paradigm
The configuration below will be familiar to many.
Article 8 TFEU marks the transition from movement rights exclusively for the economically active, to movement rights for all nationals of Member States. Entry for all, subject only to an identification document under Article 5(1) of Directive 2004/38/EC (“Citizenship Directive”), is followed by a familiar narrowing of rights, with financial hurdles demarcating the attribution of temporary, long-term, and permanent residence rights. Aside from these financial obstacles, restrictions to free movement are exceptionally narrow, extending only as far as public health, policy and security justifications (Articles 27-29 of the Citizenship Directive) and abuse of free movement (Article 35 of the Citizenship Directive).
In spite of the model above guaranteeing some level of rights to all regional nationals, configuration (a) suffers weaknesses. The bond between individuals and the Union is precarious and almost wholly determined by States themselves. States alone are competent to determine nationality, the link binding individuals to the Union, a truth which has led to incongruity interpreting the status of European citizens.
2. Residence Procuring Rights: The EU Paradox
We seem little more certain of Brexit’s implications on citizenship than we were at the time of Gareth Davies’ contribution to this site in early 2018, exploring the potential ramifications of Brexit on citizenship. However, there has been a repeated intention to protect the rights of EU citizens who have made their home in the UK, and their UK counterparts within the EU. This has led to the emergence of configuration (b).
The above represents the upmost protection of movement rights for a qualifying remnant of EU citizens. One might perceive this either to be ultimate strengthening of supranational citizenship, extending the Ruiz Zambrano principle that national dispositions should not affect enjoyment of citizenship rights, or otherwise support for the position that residency has superseded nationality in the attribution of rights. Irrespective of which view readers take, the configuration has the potential to remedy deficiencies in configuration (a), partially realising proposals from academics to strengthen supranational citizenship, through formal recognition of ties between mobile citizens and host States. The scope of configuration (b) as yet remains unclear, and whilst undeniably saturated with exclusivity, and inaccessible for the majority of EU citizens, it offers an entrenched, strengthened attribution of rights.
Brexit represents configurations (a) and (b) working simultaneously in parallel. For the majority of EU citizens, configuration (a) acts as Velcro, or tape; supranational citizenship is unilaterally ripped away by the UK, demolishing any link between individuals and the Union, making much noise, and leaving a painful mark. By contrast, configuration (b) is more comparable to shoe laces, in that residence and assimilation weave links between individuals and host States. The more intertwined these parties are, the harder it becomes to disentangle movement rights from individuals.
The Root of Rights Under EU Law: Supranationalism
Supranational citizenship is the axis on which European free movement turns. Built on mutual recognition and belonging, citizenship at the European level is a manifestation of Arendt’s celebrated expression that citizenship is “the right to have rights.” Repeatedly, the EU machine associates citizenship rights with fundamental rights. The Opinion of Advocate General Jacobs in Christos Konstantinidis v Stadt Altensteig, Case C-168/91 (para 46) paints a picture of European Citizens across the continent declaring “civis europeus sum” in vehement protection of their fundamental rights. Movement rights, derived through citizenship, are so closely interwoven with fundamental rights that they are enshrined under Article 45 of the Charter of Fundamental Rights of the EU.
In order to protect enjoyment of rights, citizenship forms a vertical link between individuals and the Union, enabling access to a comprehensive framework of judicial protection. A train of familiar jurisprudence (such as Ruiz Zambrano; Jipa C-33/07; D’Hoop C-224/98; and Garcia Avello, C-148/02) has safeguarded enjoyment of (movement and post-movement) rights, enforcing State duties and obligations outlined in European legislation, facilitating well-protected regional free movement, under which citizens can be certain of their rights.
This reconceptualisation of citizenship as a framework of rights, rather than an identity gives rise to asymmetries. Whilst any national of a Member State can access European citizenship, the status of supranational citizenship does not carry with it equal rights for all. Articles 7(1) and 14(1) of the Citizenship Directive outline the scope of movement rights, which appear to favour the financially secure. Though citizenship suggests equal access to rights for all, residency beyond three months is accessible only for those unlikely to become “burdens” to the host State.
Kochenov helpfully explains this misguided perception of citizenship as an element which slots neatly into the framework of the internal market, rather than a stand-alone strategy working alongside the internal market. Thus, internal market-thinking shapes and restricts the scope of citizenship, and barriers remain steadfast until this changes. A natural extension of this asymmetry is the division which arises between the economically active, mobile minority, and sedentary citizens, policy appearing to favour the former. Much attention has been drawn to the above asymmetries, with only recent literature, framing the transnational stakeholder, perhaps offering an innovative and optimistic outlook, adding value to static citizenship, whilst overturning conceptions of gains and “burdens”
Part II: Free Movement in Mercosur
South America represents a rich ground for migration studies, yet often remains absent from academic and political discussion on regional free movement. A different context to the European model, its approach challenges prevailing restrictive tendencies of migration policy, and aims to reverse a history of narrow migration laws. A poignant neo-liberal rhetoric supports a human right to migrate. National legislations such as Argentine Law 25.871/2004 (Article 4); Ecuadorian Constitution (Article 40); Uruguayan Migration Act 18.250 January 2008; Bolivian Law 370/2013 Article 12(II)(1); and Paraguayan Migration Law Proposal, Ministry of the Interior, Article 7 2016, have been supported by regional commitments to broaden rights to free movement, reducing barriers and more fervently guaranteeing the security of rights for regional nationals. Mercosur’s 2002 Residence Agreement (“Residence Agreement”) represents the most developed regional free movement regime on the continent. The policy has been built to combat issues of irregular migration, aspiring to terminate criminalisation of free movement, and grant access to rights for all.
- Nationality: The Mercosur Paradigm
Liberal attributions of entry rights and temporary residence rights for all nationals of Mercosur Member States, and in many cases associated Member States, is subject only to an identification document and a clean criminal record for the five years preceding movement (Article 4(1) of the Residence Agreement). The policy displays a palatable absence of financial conditions, which are only assessed upon application for permanent residence; yet, even at this stage, transition from long-term to permanent residency is remarkably fluid (Article 5(3) of the Residence Agreement). Financial prerequisites at any stage earlier than this have been deemed unnecessary, and possibly detrimental to the effectiveness of free movement, given the dominant casual labour market in South America and fewer social assistance regimes across the region.
The configuration does exhibit a surprising distinction, at least for Western readers. Historically, and contemporarily, divisions have been made between natives and the naturalised in South America, with no clear dichotomy between national, foreigner and citizen statuses. A regional preference for ius soli has led to a configuration which grants natives instant access to movement rights, trumping the rights of naturalised persons who face a temporal condition of up to five years residence before accessing equivalent rights, (Article 2 of the Residence Agreement). The effects of the above native-naturalised dichotomy refute common assumptions that naturalisation completes the rite of passage from foreigner to national, derived principally from European law. Article 5(2) of the Council of Europe’s European Convention on Nationality goes so far as to explicitly forbid such a distinction between naturalised and native nationals. Naturalisation procedures remain incongruous, even absent in some Mercosur States, in contradiction to regional attempts at openness. Importantly, the region is no longer a prominent receiver of immigrants, a contextually significant fact, which renders inconsistent naturalisation procedures of considerably less weight than might be the case in other parts of the world. Argentina receives most immigrants of the Mercosur States, but with only 5% of the population not born on Argentinian soil, and 90% of these fellow South Americans, most immigrants can access sufficient movement rights without naturalising, based on rights guaranteed under the Residence Agreement. Consequently, naturalisation forms only a minor element of policy. Inversely, regularisation has been a central focus, facilitating this intra-regional shift of persons. Argentine policy has been specifically acknowledged by Acosta who claims the State has “dramatically shift[ed] the balance from expulsion to regularisation,” an important, though incomplete, step toward legitimate exercise of movement rights for all South American nationals.
- Citizenship: The Mercosur Paradox
South America has exhibited opposition to European migration policy, Ecuadorian President Correa going so far as to label Directive 2008/115/EC (“Returns Directive”) the “Directive of Shame.” In spite of this, South American entities have expressed growing enthusiasm for the development of a South American citizenship. The most advanced articulation of this is the Mercosur 64/10 Action Plan (“Plan”), striving to establish supranational citizenship by 2021. The Plan outlines goals for the free movement of persons and deepening social integration, yet little substantive action to has been taken to achieve these objectives.
Nationality à Supranational citizenship à Entry and Residence Rights
The above configuration demarcates what the policy is likely to look like. Much like the EU model, attribution of supranational citizenship, derivative of nationality, forms the root of movement rights. This should extend beyond economic migrants, though worryingly, only free movement of workers is specifically listed, under Article 3.5.1 of the Plan. If an employment criterion were introduced, the configuration would look more like the example below.
Nationality – Supranational citizenship – Employment hurdle – Entry & Residence Rights
The Plan in many ways looks more like a streamlining of the Residence Agreement than a revolution. It is plagued with uncertainty, failing to establish the impact of citizenship in relation to associate member states, or confirm whether the current distinction between natives and naturalised persons would remain in place. There is no substantive policy outline on how to achieve regional free movement, save for promises to simplify and speed up current free movement mechanisms (Article 3.1 of the Plan) harmonise identification documents (Article 3.3 of the Plan), and clarity that the policy shall not be one of open borders (Article 3.2 of the Plan). Regional entities, including the South American Conference on Migration, have called for mutual cooperation between Member States to better define ambiguities within the agreement. Until this happens, illustration of an accurate configuration remains challenging.
The Root of Rights Under Mercosur’s Law: Transnationalism Aspiring to Supranationalism
Neither the Residence Agreement, nor the Plan is supranational in nature. Though policies extend beyond the borders of single Member States, these transnational approaches. An absence of supranational enforcement leaves States laterally bound and free to retract or amend their assent to free movement. Unlike in the EU, a Mercosur national does not have an enforceable right to movement, which will be protected by an extensive supranational court system, the right is discretionary, dictated by the will of home and host States.
Transnational policy in South America boasts little of the security the European system lavishes on citizens, appearing comparatively fragile. Top-down intergovernmental approaches are wrought with incongruity and considerable implementation gaps, in some States. Shortcomings and inconsistencies characterise barriers to free movement, naturalisation and regularisation procedures, in spite of their integral importance to regional free movement. Whilst supranational courts exist at the CAN level, the absence of Mercosur supranational courts elevates the key role of national courts in facilitating regional free movement. The Inter-American Courts have enforced adherence to international human rights regulations, especially in the domain of post-movement rights, even for undocumented workers, in Advisory Opinion 18/03. Yet, the competence of international courts cannot stretch to enforce a right to migrate which goes unrecognised in international law. Protection of such a right seems possible only through the creation of South American supranational courts, or at the very least, an examination of the legality of national dispositions which so clearly contravene an established enshrinement of a right to migrate at the constitutional level.
Discursive crevasses have opened up between constitutional values, which endorse a human right to migrate, and political discourse through which a rising wave of right-wing governments challenge this premise. Macri’s presidency in Argentina has underlined this fissure; in spite of being considered the region’s liberal leader and a crucial player in Mercosur’s policymaking, the 70/17 Decree, since declared unconstitutional, proposed measures promoting more restrictive migration policy. The Decree proposed amendments to Law 25.871/2004, aiming to broaden grounds on which to expel migrants, simplify the process of expulsions and reduce family-member waivers to expulsion. Not only does this contravene the region’s established liberal position on regional free movement, tipping the scales once more in favour of States, but has been widely criticised as contrary to human rights law, gravitating toward criminalisation of free movement. The aftermath of Bolsonaro’s electoral success remains largely to be seen, but the Brazilian leader seems an unlikely candidate to further free movement, regionally or internationally.
Transnationalism has not yet succeeded in developing deep-set roots for supranational citizens which mitigate States’ sovereign capacity to unilaterally switch off citizenship rights. South America has merely exhibited this same reality in reverse to Europe. Whilst Brexit demonstrates the UK unilaterally tearing itself apart from the EU, dragging the majority of its citizens with it, and reducing free movement rights for most other EU citizens, Mercosur has suspended Venezuela’s enjoyment of membership rights, giving rise to equivalent effects.
This fragile transnationalism fractures under the weight of crises, mass immigration from Venezuela challenging free movement policy and theory, especially given the State’s precarious membership status. Whilst most States have taken in substantial numbers of fleeing Venezuelans, barriers are being erected, with the burden unevenly distributed throughout South America.
Regional free movement policies display an ambition to move closer to the below configuration, within a demarcated geographic space. Policies seek to link individuals to a regional right to movement, subject to as few hurdles as possible. This is positive at an economic and human level. The economic foundations of many regional entitles render free movement of goods, capital and human capital attractive, given the effects of stimulated trade and increased regional solidarity. At a personal level, free movement means broader horizons, families part and reunite, study becomes international, ideologies, cultures and languages are shared and learned, job prospects and quality of life potentially increase.
Personhood à Movement rights
Personhood remains an insufficient status to procure migration rights in regional policy, which is “internally inclusive” and “externally exclusive,” rejecting access for third country nationals (TCNs). A complete assessment of just how far regional free movement policy brings us to the above configuration would require a thorough assessment of TCN movement rights alongside rights granted to those who can prove a regional identity as the root to their rights.
For regional nationals, it is clear that neither supranational citizenship, nor international treaties, have yet succeeded in eradicating hurdles for regional free movement. Perhaps only open borders can achieve the utopian configuration above, rendering borders permeable for all, eradicating irregular migration in the process. The absence of such a migration policy in South America, whilst perhaps unsurprising, remains disappointing, given the continent’s repeated commitments to regional free movement for all. However, claims that Mercosur shows signs of “innovative and exceptional” policymaking are not unfounded. Having drawn migration configurations rather differently to European models, which have wrongfully come to be synonymous with global paradigms, Mercosur has fashioned a new design for migration policy. Working to a more open, liberal goal, it has strived to reduce hurdles to regional free movement and has, in some cases, momentarily succeeded in doing so. Ecuador, for example, exercised short-lived open-borders from 20 June 2008. Both European and South American migration policy face increased nationalism, xenophobia and the weighty burden of international crises, threatening liberal regional migration promulgations. Yet Mercosur’s models of free movement offer a glimmer of hope that perhaps migration policy can be more inclusive and expansive, subject to fewer hurdles. The world seems far from agreeing on a human right to migrate. A regional right to migrate, however, may be a feasible and realistic step in the right direction.
 For a developed theory of supranational citizenship as a mutual recognition of belonging see Francesca Strumia, Supranational Citizenship and the Challenge of Diversity-Immigrants, Citizens and Member States in the EU, (2013) Martinus Nijhoff Publishers.
 Dimitry Kochenov, “The Citizenship Paradigm,” Cambridge Yearbook of European Legal Studies, Vol. 15 (2013).
 For an innovative introduction to this theory, within the scope of technology see Francesca Strumia, “Global Citizenship for the Stay-at-Homes” in Debating Transformations of National Citizenship (Springer, 2018) edited by Rainer Bauböck, (pp. 279-284).
 For a complete typology of acquisition and loss of national membership in South America see Diego Acosta, Regional Report on Citizenship: The South American and Mexican Cases, EUI, EUDO, Florence.
 Diego Acosta and Luisa Freier, “Turning the Immigration Policy Paradox Upside Down? Populist Liberalism and Discursive Gaps in South America,” International Migration Review, Vol. 49, No. 3 (2015).
 Declaration of the South American Conference on Migration X, Cochabama, 25-26 October 2010.
 Rogers Brubaker, Citizenship and Nationhood in France and Germany, Ch 1.
 Joseph Carens, “Aliens and Citizens: The Case for Open Borders,” The Review of Politics, Vol.49, No. 2 (1987): pp.251-272.
 Diego Acosta, The National Versus the Foreigner in South America, (Cambridge: Cambridge University Press, 2018, p.200