EU migration policy and its constitutional rationale: A cosmopolitan outlook

Abstract

There is much confusion among EU experts about the legal status of third-country nationals. This is hardly surprising, since this uncertainty reflects conceptual tensions at the heart of the European project. Europe's mission of promoting transnational freedom for citizens of the Member States within the single market is not replicated for third-country nationals in the Area of Freedom, Security and Justice. Instead of dismantling borders, EU activities re-confirm the relevance of borders towards third States - both physically through external border controls and legally under the emerging EU immigration and asylum acquis. This article identifies underlying motives and resolves the puzzle by proposing a positive constitutional rationale for the substantive rules of European migration policy. It takes seriously two major reforms brought about by the Lisbon Treaty: the emancipation of migration within the area of freedom, security and justice; and the binding character of the Charter of Fundamental Rights. Both changes help us to understand that EU primary law represents a noteworthy accommodation of countervailing theoretical arguments about the normative foundations of international migration. EU migration law is committed to a "cosmopolitan outlook", which rejects the traditional notion of unfettered sovereign State control without mandating open borders.