Who Gets In?

Before anyone began to reflect more deeply on the relationship between citizenship and immigration, Rogers Brubaker, the pioneer in this field of study, established in his book Citizenship and Nationality in France and Germany a paradox particular to the idea (outwardly universal) of citizenship: the paradox of internal inclusion and external exclusion. Citizenship is inclusive, because it offers every individual who belongs to a given nation-state the status of equal membership in that state. But it is also exclusive, in so far as it authorizes nation-states to reproduce themselves by restricting the spillover of individuals between states. Since Brubaker, many authors have reproduced his thesis, with the result that these two aspects of citizenship are seen as two sides of the same conceptual coin.

A recent decision by the European Court of Justice—one likely to have widespread repercussions—suggests that we will henceforth have to think about citizenship quite differently. In the Zambrano case, which we will consider here, the court effectively ruled that the immigrant parents of a child who is already the citizen of an EU member country have the right to reside in, and a right to work in, the country of their child’s nationality.

In sizing up this decision and its implications for the future of citizenship, we can usefully refer to a new book by Christian Joppke, Immigration et citoyenneté (Immigration and Citizenship), which traces the evolution of the concept from the era of T.H. Marshall to our own. It does so from three intersecting angles: status, rights and identity.

Citizenship As Formal Status: The Right To Exclude

In order to understand the decision of the court, we must first appeal to the first aspect of citizenship analyzed by Joppke, namely that of formal status governing membership in the state. It was in fact the refusal on two occasions of the Belgian state to grant asylum to the claimants (the Zambranos, a Colombian couple) that eventually led to the ECJ ruling. Entering Belgian territory on a short-term visa, they saw their request for asylum rejected in 1999 and 2000. The Belgian refugee board that heard their claim nevertheless ordered the Belgian state not to deport them to Colombia, since it was felt, with good reason, that the couple’s lives would have been in danger from the civil war then raging in that country. Even though they had no recognized legal status, the Zambranos were therefore able to remain on Belgian soil. They thus fell into a sort of legal no man’s land, one very common among irregular immigrants.

If we approach it from the point of view of its cause, we can thus affirm that it is indeed national citizenship in its dimension of exclusion, the dimension that Brubaker has admirably theorized, that caused this affair. If it had stopped there, the Zambrano case could, for that matter, be read as an in-the-flesh refutation of the main argument of Joppke’s book: that citizenship in liberal democratic countries, under the pressure of massive immigration, has become ever more inclusive and universal since the end of World War Two, to the point where the traditional distinction between “immigration countries” (North America and Australia) and others (Europe) has disappeared.

But the Zambranos have two children, born in 2003 and 2005, who themselves received Belgian citizenship by right of birth (jus soli)—quite in harmony with Joppke’s thesis. Their father found a job, then lost it when his papers were examined: without a legal status, he was not allowed to work. Shortly afterward, he learned he was not eligible for unemployment insurance either, or for social assistance. He therefore again petitioned the Belgian authorities for legal residency and for the right to work, arguing that the Treaty on European Union guaranteed him those rights: not only are his children Belgian, but they are also European. Following the repeated rejection of his case by the Belgian authorities, one of the family took the case to the European Court of Justice. The case thus shifted to the second aspect of citizenship identified by Joppke: rights.

Citizenship As A Right: The Right To Be Included

The idea of citizenship as a right has been defended, in the context of immigration, by (among others) Yasemin Soysal in Les limites de la citoyenneté. Soysal saw clearly that civil rights and social rights were increasingly assigned on the basis of a universal concept of personhood; as a result, she foresaw the emergence of a post-national citizenship. She grounded her view on two phenomena: first, “the growing interdependence of transnational political structures which prevent destination countries from expelling immigrant populations with impunity and, second, the development of “a global culture of human rights since the end of the second world war.” Even if it is undeniable that the ruling of the European court in the Zambrano case has helped to relativize the value of national citizenship by its intervention in a domain in which states have hitherto exercised unrestricted sovereignty, namely their internal situations, and even if this ruling recognizes certain new social and civil rights for some immigrants, the guiding spirit behind it has more to do with the logic of a federal system than with human rights.

In fact, the court intervened to protect the rights of two citizens of the European Union, the Zambrano children; and it was in specifying the scope of their rights that it granted rights to immigrants, in this case to their parents. From this point of view, the most surprising innovation in the ECJ decision was the fact that it was not concerned with freedom of movement, which, as per European Directive 2004/38/EC, had hitherto served as a precondition for claiming the protection to which citizens of the EU are entitled in a member state other than the one of which they are nationals.

Instead, given that the Zambrano children had not crossed any borders, the ECJ considered that their situation was governed directly by Article 20 of the Treaty of Rome, which concerns citizenship in the European Union and the rights that go with it. As a result, the court recognized the children’s right to live in Belgium and, in order that they not be deprived of their rights as EU citizens, it granted right of residence in that country to their parents, together with the right to obtain a work permit in order to support them. For immigrant parents and their children, the most significant precedent established by this ruling is that it makes no reference to the sort of family rights that are normally cited in cases of this kind; neither does it refer to any charter of human rights. But such a victory is not without its drawbacks.

If the Zambrano case is not based on the logic of human rights, it still goes to show that, just as Soysal had intuited, non-citizens today have rights, just as citizens do. Nonetheless, this ruling could also have perverse effects on the right of non-citizen immigrants in that it emphasizes their stratification. At least, that’s how one might interpret the distinction made by the court between resident immigrants and those who have crossed borders: only the former can truly be said to benefit from the ruling. We may therefore wonder if the ECJ judgement is not apt to legitimize a new form of discrimination.

Citizenship As A Right: The Right To Identity

In the end, the third and final aspect of citizenship analyzed by Joppke, that of identity, is regularly invoked when societies grow worried about their cohesion and the integration of newcomers. Formerly, their unity on the symbolic level was preserved by the discourse of “the nation” and nationalism, and for that citizenship itself was the vehicle par excellence. With the diversity that comes with immigration (among other causes), all appeals to unity are now suspect. This is why citizenship can now only have an instrumental value, limited to the possession of rights based on place of residence. Joppke holds that in this respect citizenship in the European Union, founded on freedom of movement, foreshadows what citizenship will look like in the future. By placing a new check on states’ rights to exclude, the Zambrano decision by the European Court of Justice confirms the accuracy of Joppke’s prediction: increasingly, EU citizenship belongs to those who have chosen to live in EU countries. Citizenship is no longer the exclusive prerogative of those who share a common history and a set of common values.

This article first appeared in Spirale #237, entitled “La fin du droit d’exclure?” Published in Montreal since 1979, Spirale is a French-language magazine of culture, literature, the arts, current affairs and philosophy. Issue #237 takes as its theme the idea of border crossings (passages des frontières). More information on the magazine and the issue can be found online at <www.spiralemagazine.com>.