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This chapter introduces the mechanisms of deliberate or coincidental 'othering' of immigrants through law and the application of law. It starts by introducing what 'othering' means and then transplants the findings into the context of legislation and law. The chapter emphasizes the systemic 'otherness' of immigrants in a legal system defined by the nation state. Citizens are per definition in the in-group, whereas foreigners are per definition in the out-group. The chapter also addresses how the differentiation between foreigner and citizen is more complicated in the EU with its EU citizenship and free-movement rights. The chapter addresses the role of law as an amplifier of 'otherness' or as a tool for the inclusion of immigrants.
After a series of decisions, the Court of Justice of the EU has been accused of undermining the value of Union citizenship as a tool to overcome the confines of ‘market citizenship’, thereby conferring residence and equal treatment rights to all Union citizens, regardless of economic status. This chapter argues that, rather than ‘abandoning’ Union citizenship, the Court has evolved its approach in these cases following the adoption of Directive 2004/38. The Court treats residence and equal treatment rights under the Directive as a closed system, with lawful residence under Article 7 of the Directive being the gateway to citizenship rights. Whilst this is legally coherent, strict reliance on the Directive is liable to create problems, particularly for low-wage workers and the economically inactive. The closed system of residence and equal treatment rights potentially results in more insecurity when (i) Member States systematically check the individual’s residence status when assessing social assistance claims; (ii) the individual applies for permanent residence status and must prove lawful residence for a continuous period of 5 years; and (iii) returning to their home Member State with a third country national spouse following a period of residence in a host Member State.
This chapter brings together the findings of the other chapters and emphasises some common trends that came back repeatedly in the preceding chapters. The chapter starts with the general rigidity and stickiness of legal norms in the area of immigration and asylum. As a result, procedures, implementation, but also interpretation of these norms are changed more often than the norms themselves. On the EU level, the phenomenon called ‘reverse harmonization’, which led to vague legal norms, contributes to the discretion to install procedures on the national level leading to deliberate bureaucratic 'othering'. The chapter also highlights economic and cultural 'othering' as common treads throughout the book. The chapter concludes with some thoughts on what the treatment of the 'other' says about European Societies and what can be done to stop 'othering'.
This chapter places the social process of 'othering' in the context or regulation of immigration and asylum. The chapter also introduces the structure and content of the individual parts of the book as well as their chapters.
Not a day passes without political discussion of immigration. Reception of immigrants, their treatment, strategies seeing to their inclusion, management of migration flows, limitation of their numbers, the selection of immigrants; all are ongoing dialogues. European Societies, Migration, and the Law shows that immigrants, regardless of their individual status, their different backgrounds, or their different histories and motivations to move across borders, are often seen as 'the other' to the imaginary society of nationals making up the receiving (nation-)states. This book provides insights into this issue of 'othering' in the field of immigration and asylum law and policy in Europe. It provides an introduction to the mechanisms of 'othering' and reveals strategies and philosophies which lead to the 'othering' of immigrants. It exposes the tools applied in the implementation and application of legislation that separate, deliberately or not, immigrants from the receiving society.