Conclusions and Recommendations

Abstract

This book demonstrated that the EU’s circular migration concept has entered the migration policy agendas of Bulgaria and Poland as part of the policy transfer driven by the process of Europeanisation. Furthermore, it became clear that the concept of circular migration, as it has been promoted by the EU, serves as an empty shell that is shaped by different EU and national instruments, depending on local contexts and labour market needs. This chapter aims to answer the main research question of this study, namely: how the EU’s approach to circular migration has been implemented through the developed legal and policy instruments, and does it provide for rights-based circularity for migrant workers in the Central and Eastern European context. The chapter concludes with policy recommendations to this end.

This book demonstrated that the EU’s circular migration concept has entered the migration policy agendas of Bulgaria and Poland as part of the policy transfer driven by the process of Europeanisation. Furthermore, it became clear that the concept of circular migration, as it has been promoted by the EU, serves as an empty shell that is shaped by different EU and national instruments, depending on local contexts and labour market needs. This chapter aims to answer the main research question of this study, namely: how the EU’s approach to circular migration has been implemented through the developed legal and policy instruments, and does it provide for rights-based circularity for migrant workers in the Central and Eastern European context. The chapter concludes with policy recommendations to this end.

9.1 General Conclusions

This study aims to fill a gap in existing literature by presenting a comprehensive picture of the formulation and implementation of the EU’s circular migration approach in the Central and Eastern European (CEE) context. It provides a multi-level analysis of the EU legislation that facilitates circular migration, the dynamics under the aegis of the Global Approach to Migration and Mobility (GAMM), and the implementation at the national level in two CEE countries. The originality of this book lies also in the fact that it accounts for the outcomes at the individual level by employing an empirical legal research approach. Several general conclusions can thus be derived from this study.

More than 10 years ago, the European Commission adopted the policy idea of facilitating circular migration as part of a worldwide hype among international organisations, namely that this type of migration can benefit all parties involved. Based on several policy documents in the period 2000–2009, the EU formulated its approach towards circular migration. This study confirms the findings of other authors, such as Wickramasekara,¹ that this was done in the absence of any thorough evidence that this type of migration could indeed bring the alleged ‘triple win solution’ for countries of origin and destination as well as the migrant workers themselves. Furthermore, as the preceding chapters have demonstrated, the EU started to promote facilitation of this type of migration not only in relation to Member States but also to third countries without a common definition or a uniform understanding of what this policy term entails.

Against this backdrop, this study concludes that more than a decade after the EU policymakers adopted this concept, there is hardly a common approach to circular migration at the EU level. On the contrary, this is a policy notion that keeps straying into the EU Justice and Home Affairs domain and which finds a place in the Preambles of some of the EU legal migration directives and the Mobility Partnerships’ annexes without a clear grasp of its meaning or tangible form. This lack of a coherent formulation leads to scattered outputs and an uneven implementation at the national level.²

Therefore, ‘catch me if you can’³ is a suitable phrase that captures the state of circularity of the legal and policy instruments, which are part of the EU’s labour migration policy.⁴ This study demonstrated that two different concepts of circular migration can be outlined under the EU approach. On the one hand, a spontaneous pattern of circularity that can be facilitated through a legislative framework such as, to a certain extent, in the context of the Blue Card Directive as well as in the Polish simplified Oświadczenie procedure that has been adopted under the auspices of the Mobility Partnerships with the Eastern Partnership countries; and, on the other hand, as a temporary migration scheme with a re-entry component that is regulated through the Seasonal Workers’ Directive and some of the circular migration initiatives implemented under the Mobility Partnerships with the Eastern Partnership countries.⁵

Furthermore, the incoherent formulation of the EU’s approach to circular migration reflects the emerging sectoral EU labour migration acquis as well as the dynamics of the EU external migration policy under the aegis of the GAMM. Therefore, returning to the main research question of this study on how the EU’s approach to circular migration has been implemented and whether it provides rights-based circularity for migrant workers in the CEE context, the study shows that rights come at a certain ‘skill and qualifications’ price in the EU.⁶ The sectoral EU directives on labour migration that were analysed differentiate migrant workers on the basis of their skills and qualifications, as well as their attractiveness for the Member States’ labour markets, using this as the decisive feature on which the different statuses are assigned.⁷ The migrants most desired at the EU level are those with higher qualifications because they are seen as contributing the most to the Member States and the EU’s economy. Blue Card holders are the only category that can benefit from rights-based circular migration that allows for a migrant-led trajectory. However, the Blue Card Directive has barely been used since it was adopted due to restrictive admission conditions, national parallel rules, and its cumbersome implementation in some Member States.

Circular migration as part of the GAMM is a vivid illustration of Member States’ desire to strictly adhere to their competence under Article 79 (5) of the Treaty on the Functioning of the European Union (TFEU). Therefore, this study confirms the assessments of other authors with regards to circular migration as part of the Mobility Partnerships: behind the façade of the Mobility Partnerships’ annexes containing references to circular migration initiatives, there is nothing more than several small-scale projects and there are only a few Member States that are eager to engage in this type of migration.⁸ Apart from that, the only GAMM instrument that could currently make a difference for workers’ rights is the Polish Oświadczenie procedure, which, as this study has demonstrated, is used mainly by Poland’s neighbouring countries. The visa liberalisation with Georgia and Ukraine are other policy measures that can contribute to the initiation of individual circular migration projects that could not be included in the scope of this study.

This book also confirms the conclusions of other authors that circular migration, as a policy model, can provide for migrant-led trajectories and the protection of migrants’ rights only if it is perceived as a spontaneous pattern of migration facilitated through the operation of flexible policies and a flexible legal framework (as in the case of Sweden and partially through the Oświadczenie procedure in Poland), rather than as a temporary labour migration scheme, which is redolent of the guest-worker model.⁹ With the exception of Blue Card holders, such flexible solutions are only available for migrants of ethnic origin at the national level in the countries taken as case studies. In line with Newland’s assessment, this study concludes that the design of circular migration policies should take as their starting point the existing spontaneous patterns of migration, such as between Poland and Ukraine.¹⁰

An added value of this research is that it goes one step further and provides a comprehensive picture of the implementation dynamics of the EU’s approach to circular migration at the national level by adding an empirical legal research dimension. This study found that the outcomes of the implementation of the EU instruments that fall under the circular migration umbrella on the rights of migrant workers are not straightforward and depend on various factors, such as the national context, how the national migration policy has developed, the way in which EU law is transposed into domestic law, and how Member States use their margin of appreciation.¹¹

In the Polish context, the entry and re-entry facilitation instruments developed are compensatory measures that aim to restore patterns of circular migration that has already been in existence for decades. All the established national and EU instruments were part of a conscious policy choice to create facilitation for the citizens of the neighbouring Commonwealth of Independent States (CIS) countries aligned with the country’s foreign policy considerations. Therefore, the implementation of the EU and national instruments falling under the circular migration umbrella has provided these migrant workers in Poland with flexible possibilities for facilitated legal entry and re-entry into the country.

In the case of Bulgaria, where labour migration is regarded as a temporary solution only, the concept as such did not lead to the establishment of any new rights derived from national instruments in relation to entry and re-entry conditions due to the practice of ‘forced circulation’ that is inherent in Bulgarian migration law. Nonetheless, the different EU labour migration directives and the visa facilitation agreements with Eastern Partnership countries have established certain rights, which need to be further detailed and enforced by the different stakeholders: business organisations, NGOs, and migrant workers. Currently, migrants cannot fully benefit from some of the rights introduced under EU law because the directives have been inefficiently and impractically transposed into national law.

In the field of work authorisation, the EU law instruments falling under the circular migration umbrella have introduced rights for several categories of migrants with regards to the change of employer and the possibility to find alternative employment in case of unemployment. In the case of Poland, this is possible even when the EU acquis does not impose an obligation under the general regime, which transposed the Single Permit Directive into Polish law. However, the implementation dynamics presented by this study suggest that due to the poor ‘quality’ of the transposition of EU law, these rights cannot be easily enforced in practice, rendering them somewhat ineffective. In the case of Bulgaria these rights were established only for some categories of migrants as a result of the pressure to harmonise national law with EU law requirements. Therefore, in the Bulgarian case the implementation of the EU’s legal instruments has led to tangible results for the rights of migrant workers.

The results of this study show that applying the minimum standards under the EU Long-term Residence Directive with regards to allowed periods of absence for circular migration facilitation is not a workable solution. Furthermore, in order to transit from permits allowing circulation to a more permanent status, migrants need to change their trajectories and plan their returns to their countries of origin within the time limits that are permitted by EU and national legislation. Therefore, except for Blue Card holders who are granted flexible geographical mobility, the remaining categories of migrant workers that fall under the EU circular migration umbrella have not gained any additional rights that could make them more prone to engage in circular migration.

The policies on social security coordination and the recognition of qualifications for third-country nationals, who fall outside the scope of the EU acquis, are left to the Member States to determine. The analysis of these two policy fields shows that in cases where there are no EU acquis requirements to be implemented, Bulgaria and Poland have not been proactive due to the embryonic development of their migration policies, the lack of any political will to attract migrant workers and create workable policies for their retention or circulation. Therefore, these policies are mainly driven by the notion of having some measures in place, rather than by incentives to create workable solutions, which would support a given policy, whether circular or not. Thus, they provide very limited rights to specific categories of migrants, and in the case of recognition of qualifications lead to a temporary ‘brain waste’ of a desired group of professionals such as physicians and nurses. Concerning social security coordination, Bulgaria sets a good example by pursuing an active policy for the negotiation of bilateral agreements based on the GAMM framework. However, both Bulgaria and Poland fall short of investing in information campaigns and other measures aimed at raising awareness about these rights amongst migrant workers.

The implementation of the EU’s family reunification policy at the national level provides for rights-based circular migration solutions mainly with regards to highly-skilled migrants, such as Blue Card holders, researchers, and Intra-Corporate Transferees (ICTs). For the rest of the migrant workers, these two policies are incompatible, unless they decide to change their circular trajectory and settle for at least 1 year in order to be able to satisfy the eligibility criteria for family reunification. The fact that the Family Reunification Directive allows Member States to impose additional conditions before authorising family reunification is another hindrance to family reunification for circular migrants who are not regarded as being highly-skilled.

As Triandafyllidou stresses, circular migration on the ground is ‘shaped by labour market dynamics, and driven by the agency of the migrants’, and this does not necessarily match the EU’s approach.¹² The analysis of the empirical data gathered through the conducted focus groups supports this conclusion by illustrating that migrants do not always follow the predetermined model of migration envisaged by policymakers.¹³

This implementation study shows that the EU’s approach to circular migration in practice fails to accommodate the ambitious variety of migrant profiles considered as target groups for circular migration facilitation. It demonstrates that Blue Card holders and EU long-term residents are generally not interested in employment-related circular migration, and that the use of the Students’ and Researchers’ as well as the ICTs Directives, is marginal in the CEE countries selected as case studies in this study. In line with previous studies, this book highlights seasonal workers and other migrants engaged in low-skilled occupations as the most active beneficiaries of the EU’s approach to circular migration.¹⁴

The study’s empirical data analysis suggests that flexible policies that alow migrant-led trajectories make migrants more prone to circulation and restrictive policies leave settlement as the only option, in line with other authors’ conclusions.¹⁵ This comes to show once again that the understanding of circular migration as a fluid type of movement is not necessarily reflected in current policy developments. Despite the hurdles that must be overcome in order to find jobs and the restrictive policies concerning access to family reunification or permanent residence, however, migrant workers use their agency and rely on circumvention mechanisms that allow them to continue with their own personal trajectories. Furthermore, factors such as the political situation in countries of origin, as in the case of Russian and Ukrainian migrants, also contribute to changes in migrants’ trajectories and thus provide another argument for the development of rights-based labour migration policies that allow for flexibility, rather than circular migration policies.

Another important conclusion that is based on the current implementation study is that circular migration policies concern much more than just entry and re-entry conditions. The existing policies at both the EU and the national levels that are labelled as circular migration measures currently place migrant workers in a more vulnerable position. In order to distinguish the policy concept of circular migration from the guest-worker models, policymakers need to consider adopting a rights-based approach that covers other policies that concern circular migration, such as social security coordination and family reunification. Furthermore, the labour rights of such migrants need to be protected and enforced because of their vulnerable position. Even though this study did not focus on assessing the enforcement of these kinds of rights, they should nevertheless form part of any rights-based circular migration policy.

To sum up, the answer to the research question of this study on how the EU’s approach to circular migration is implemented and whether it provides rights-based circularity for migrant workers in the CEE context is that the EU’s approach has been driven by selectivity based on the skills and qualifications of migrants and it only rewards the most desirable migrants – the highly-qualified – with the possibility to engage in rights-based circular migration. However, circular migration approaches at the national level differ between countries due to various factors such as national context, stage of development of the national migration policy, how EU law is transposed into national law, and how Member States use their margin of appreciation. Consequently, this leads to different outcomes for the rights of migrant workers and very often to discrepancies between policymakers’ predetermined models and migrants’ realities.

9.2 Policy Recommendations

In line with the general conclusions of this study, the following policy recommendations are proposed:

• 1. Depart from the promotion of circular migration at the EU level and instead encourage flexible labour migration policies that allow for ‘geographical mobility’. As this study has demonstrated, migrant trajectories and circular migration patterns change over time due to different circumstances related, inter alia, to economic, political, and personal factors, and are very often predetermined by cultural and historical links between home and host countries. Therefore, the development of such policies needs to follow a bottom-up rather than a top-down approach from the EU level. The facilitation of this type of migration could fit the national circumstances of some Member States (e.g. Poland), but not necessarily of others. The (recast) Blue Card Directive that provides for ‘geographical mobility’ should serve as a model for such a flexible approach to legal migration, which is rights-based rather than utilitarian as is the case of the Seasonal Workers’ Directive. This approach could facilitate spontaneous circular migration in cases where migrant workers have chosen a circular trajectory between their home and host countries, but it can also allow for a different trajectory that is related to temporary migration, settlement, or migration to another country. Such an approach is also commensurate with the realities of Member States, which also experience demographic problems along with labour market shortages.

• 2. Ensure better implementation and enforcement, at the national level, of the already adoptedEU acquison legal migration through the establishment of a mechanism for regular monitoring and reporting to the European Commission. Currently, this type of monitoring is done primarily through the Commission’s reports, which focus on the implementation of different directives, and on the basis of signals, cases, and reports that are brought to its attention by Brussels-based or national-based NGOs. Such a mechanism could be institutionalised through the establishment of a network of independent national experts funded by the EU who report to the Commission on a regular basis, following the examples of networks such as the European network on free movement of workers within the European Union, which was coordinated by the Centre for Migration Law at the Faculty of Law of Radboud University and replaced by FreSco, as well as the Odysseus Academic Network. Furthermore, such a recommendation takes into account the attitudes of Member States, which are currently reluctant to adopt any new proposals in this respect.¹⁶

• 3. In the long-term, EU institutions should depart from the emerging sectoral approach, which cannot encompass all categories of migrant workers. The 2001 Commission proposal for a general framework directive on labour migration set a good example for flexible migration policy measures, such as permits allowing longer absences from the territory of the Member States, the export of pensions and benefits, and multi-entry permits that could also facilitate spontaneous circular migration. However, the 2001 proposal fell short of providing such flexible options in relation to migrants employed in low-skilled occupations. In any case, a general framework directive would provide the option to move away from the current practice favouring highly-skilled migrants with more rights and ‘geographical mobility’ and which discriminates against migrants in low-skilled occupations who are less attractive to the Member States.¹⁷

• 4. The EU and the Member States should provide mechanisms that facilitate the recognition of qualifications for third-country nationals coming to work in regulated professions in the Member States, and which are not covered by the current EU legal framework. This study has found that the current circular migration policies that aim to prevent brain drain from third countries and the recognition of qualifications are two incompatible processes. The study’s empirical data analysis demonstrated that this, in fact, leads to settlement or further migration in the EU. Therefore, the EU and the Member States need to actively pursue the conclusion of multilateral and bilateral agreements to regulate this issue. As the IOM has suggested, these can be region-specific and field specific.¹⁸ Another underused possibility at the national level, which requires the mutual cooperation of Member States’ administrations and professional bodies, is to implement the (recast) Blue Card Directive, as well as the other relevant directives in this field, in such a way that it accommodates the recognition procedure for regulated professions. All of these measures, however, also need to be accompanied by reforms at the national level, which should aim to improve the current recognition procedures by making them faster and more flexible on the basis of innovative compensatory measures.¹⁹ Additional policy measures, such as databases providing educational profiles in different sectors in third countries with which the EU cooperates, could also improve this process.

  Finally, a recommendation at the EU level is to extend the personal scope of Professional Qualifications Directive 2005/36/EC, as amended by Directive 2013/55/EU, and apply it to all third-country nationals coming to work in regulated professions. The mechanism established by these directives sets out an extensive overarching framework that provides certain procedures and safeguards.

• 5. The EU and the Member States should establish family reunification policies for temporary migrants, regardless of their skill levels. In order for migrants to engage in circular migration in a beneficial way – which, as demonstrated by this study, can encompass a variety of professions and durations of stay – they need to be able to rely on policies that minimise family disruption caused by such migration.²⁰ As this study has concluded, the implementation of the EU’s family reunification policy at the national level currently provides for rights-based circular migration solutions only in relation to highly-skilled migrants such as Blue Card holders, researchers, and ICTs, who could also be temporary migrants staying for limited periods of time. Taking into account that the current political climate would make it impossible to justify reforms that aim to widen the personal scope of the Family Reunification Directive, Member States should establish policies that provide options for migrant workers to be accompanied by their family members. This could include frequent return options provided through longer permitted absences, long-term visas, or temporary permits allowing migrants to be joined temporarily by their family members as a measure that precedes the family reunification procedure. Furthermore, Member States need to provide an option for family members to be able to change their status (from visa type C to D, or from visa type D to a temporary permit) from inside the territory of the host country if their sponsor decides to work for a longer period of time in the EU. As this study has shown, the lack of such measures also causes family life disruptions.

• 6. Member States should proactively pursue the conclusion of bilateral social security agreements and establish an accessible information policy for migrants engaged in circular migration. This study shows that the number of such agreements, even between Member States and third countries that share cultural, economic, and historical links, is rather low. Therefore, Member States should pursue the conclusion of such agreements as part of their respective migration policies and follow the practice adopted by Bulgaria, namely to use the GAMM channels in order to negotiate such agreements. Furthermore, as the analysis of the empirical data of this research has shown, migrant workers are unaware of their rights in most cases, potentially putting them in a vulnerable position. Therefore, the Member States’ administrations should pursue an active information policy, both in their territory but also, for instance, through the GAMM channels, in the home countries of migrant workers to inform them of existing possibilities for export of their benefits. Furthermore, Member States should consider the option of introducing the reimbursement of social security contributions, as has been advocated by this study.

• 7. If the Member States want to pursue circular migration policies, they need to start collecting data on migrants that are engaged in this type of migration and provide regular evaluations of the policies that are in place. The UN Economic Commission for Europe (UNECE) report Defining and Measuring Circular Migration provides a good starting point for policy action in this regard by proposing a statistical definition of circular migration and data sources that can be used to measure it, such as population registers, surveys, and census data.²¹ However, this would also require a more systematic collection of data at the national level that could be complemented by additional surveys and further empirical research.²² Only in this way can circular migration policies and their effects on the individual level be fully evaluated and understood, as well as improved.

• 8. More research is needed in order to assess whether circular migration policy models based on the facilitation of spontaneous patterns could be used as complementary pathways for admission of refugees.²³ What this study has shown, which is also commensurate with the findings of other authors, is that piloting temporary migration schemes and referring to them as ‘circular’ does not lead to sustainable and workable policy solutions. Therefore, there is a need for a shift in policy thinking in this respect.²⁴ Analysing the limited policy experience with the facilitation of spontaneous patterns of circular migration through legal and policy measures could be a good starting point for such a research exercise. What this study has demonstrated is that Ukrainians who were fleeing from the Crimea conflict in their home country used Poland’s simplified Oświadczenie procedure rather than looking for alternative routes to enter the country irregularly or apply for asylum. They used this flexible possibility to support their migrant trajectory as it allowed them to settle if the conflict were to continue or to return to their home countries in the event that the political climate improved.

• 9. New Member States such as Bulgaria and Poland are still developing their migration policies and should consider ratifying ILO Conventions No. 97 and No. 143 as well as the ICRMW. As this study has demonstrated, Bulgaria and Poland still have not established comprehensive labour migration policies, and in both cases the policies developed did not provide adequate protection for migrant workers. Therefore, in line with the rights-based approach that has been promoted by the ILO, consistency with international standards in the field of labour migration as provided for in ILO Conventions No. 97 and No. 143, as well as the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (ICRMW), can support new countries of immigration, such as the ones under consideration in this research, to establish policy measures that are conducive to managing labour migration and which ensure an adequate level of protection for migrant workers.