Special mobility rights: Do they protect vulnerable groups or create new vulnerabilities?

Julija Sardelić (Te Herenga Waka – Victoria University of Wellington, New Zealand)

In these times when the COVID-19 pandemic and its related border closures have highlighted even more how mobility is a commodity that only a small proportion of the world population can practice and afford, Džankić and Bauböck have opened up an important debate on mobility out of necessity rather than as a luxury. COVID-19 related border closures have left, for example, asylum seekers and refugees in an even more vulnerable position than they had been in before in their indefinite ‘waiting room’ status for resettlement or protection (as examined by Doyle, Prantl and Wood in this debate). On the one hand, as Džankić and Bauböck pointed out, in many places citizenship has become a commodity. The super-rich people can simply buy passports as an instrumental investment in mobility without necessarily wanting to be members of societies in the states that have issued those passports. On the other hand, for those desperately needing mobility to save their lives, be it fleeing from violent conflicts or their sinking islands in the Pacific due to climate change, such mobility remains inaccessible. That is why the proposal for a special mobility passport without necessarily granting membership rights brought forward by Džankić and Bauböck is not only urgent in terms of theoretical contemplation, but also in thinking about how this could be turned into a practical reality to help make mobility accessible to those who desperately need it.

Though I support the idea of a special passport for vulnerable groups, especially when it becomes a matter of saving their lives, I wonder whether expanded mobility rights are enough to address the complexities that different positions marked by vulnerability bring with themselves. That is why in this commentary I would like to bring forward two examples where extended mobility rights for vulnerable groups were an important step. However, in these cases they were not enough to offer meaningful protection for these groups, and created new forms of inequalities for them. The first example is the position of Romani minorities who gained new mobility rights by becoming EU citizens. The second is the Temporary Protection Directive that the EU introduced to offer immediate protection in case of a large number of asylum seekers.

EU free movement rights generated new discrimination of Romani minorities  

In one of the chapters of my recently published book The Fringes of Citizenship, I look at how the position of Romani minorities from Central and Eastern Europe has changed when they became EU citizens with the 2004 and 2007 EU Enlargements. With EU citizenship Roma, as all other EU citizens, also gained new mobility rights under the EU Free Movement Directive (2004/38/EC). These rights seemed like a long-awaited promise. The Council of Europe has declared Roma to be Europeans par excellence: “Apart from constituting a minority in most member states, they constitute, more than any other national minority, a veritable European minority. While national minorities have a country of origin apart from a country of residence the Roma have no country of origin to which they can refer. They are […] Europeans par excellence, transcending territorial limits without nationalistic pretentions or prejudices” (Council of Europe, 1993). Before the fall of the Berlin Wall, many socialist regimes, such as socialist Czechoslovakia, had rigorously controlled movement and mobility of their Romani citizens in what amounted both to ethnic discrimination as well as socio-economic disadvantage (see Celia Donert’s book). The assumption was that with Roma becoming EU citizens, this would bring new opportunities for Europe’s most socio-economically disadvantaged ethnic minority. Yet according to the EU’s Fundamental Rights Agency (FRA), even as EU citizens “many EU Roma face life like the people in the world’s poorer countries”. The 2016 FRA survey indicated that around 80% of Roma in the European Union remain at the risk of poverty. EU free movement rights did not improve their position as a vulnerable group. When some Romani individuals used their EU mobility rights to travel to the older EU Member States, they found out that rather than new opportunities and protection, they instead faced new forms of discrimination. Although they enjoy mobility rights as EU citizens, in the 2010 so-called L’Affaire des Roms, French authorities have found new ways how to expel unwanted Romani citizens from their territory and have approximated their position to third-country nationals with regard to collective expulsions. Mobility rights did not live up to the promise of protection for Romani EU citizens. This example also shows that we cannot assume that when vulnerable populations are awarded equal protections, they will be able to make use of them in practice.

Hyper-temporary transit instead of temporary protection in the 2015 ‘refugee crisis’

The second example where extending mobility rights for vulnerable populations did not necessarily bring enhanced protection is the case of 2015/16 movement of refugees and asylum seekers to Europe: Why did the EU Member States not invoke the Temporary Protection Directive although some scholars argued it was the right time to do so. The Temporary Protection Directive was adopted in the context of the Kosovo war when almost 2 million people ended up displaced and in need of immediate protection. According to the European Commission “Temporary protection is an exceptional measure to provide immediate and temporary protection to displaced persons from non-EU countries and those unable to return to their country of origin. It applies when there is a risk that the standard asylum system is struggling to cope with demand stemming from a mass influx risking a negative impact on the processing of claims”.  The 2015/16 Syrian ‘refugee crisis’ seemed to be a similar context where EU Member states could have used the Temporary Protection Directive. Instead what most EU as well as EU-neighbouring countries affected by the movement of refugees did was to create instead a sort of humanitarian corridor and facilitated transit migration through their territories to Germany. The reason for allowing such mobility (in some cases introducing new and amending legislation to support it) did not lie only in humanitarian inclinations of the countries on the so-called Western Balkan Route, but also in their unwillingness to offer protection on their territory even on a temporary basis. Temporary protection has been replaced with hyper-temporary transit, as I have argued in my previous work.

To conclude, both cases I have examined show that extending mobility rights should be something to strive for, but it does not necessarily offer the protections that some vulnerable populations need. In certain cases, as also discussed by John Torpey and Yasemin Soysal in this debate, extended mobility rights could address the position of vulnerable groups in the short term, but in the long term – when they remain an isolated measure – they can even create new hierarchies of disadvantage.