ACELG

Money is a border-drawing tool. It can determine who gets or who does not get permission to enter. But money determines patterns of migration and policies towards migrants also in many other ways. At times, money serves explicitly as a selection mechanism for migration and at times, the border-drawing role of money is more secretive.

Tesseltje de Lange (UvA), Annette Schrauwen (UvA), and Betty de Hart (VU) (UvA) took the border-drawing role of money as a theme for a research seminar co-organized by ACELG in June 2018. The seminar brought together researchers from various disciplines and working in different countries, ranging from Belgium to Canada and South-Africa and brought to light similarities in research areas that at first sight seemed to have not that much in common. It resulted in a surprising overview of financial flows and factors that indicate that financial borders are as important in migration law as physical borders and borders set by legal categories.

In an inspiring keynote, Ayelet Shachar turned to the legal and ethical puzzles of using financial thresholds as a tool to determine who does and who does not belong. One could see citizenship-by-investment programs as replacing the civic bonds between nationals with credit bonds. Shachar replicated several arguments advanced in the literature in favor of these programs. She also presented three main arguments against these programs, notably the fact that they increase inequalities resulting from the birthright lottery, that social relationships expressed by citizenship cannot be represented by the market and that we should be aware that it could turn into more than just a minor change of the rules. What if this becomes the only way to obtain citizenship?

The theme of investment citizenship was reconsidered in the seminar via the contributions of Kirstin Surak (University of London) and Elena Prats (Uppsala University). Kirstin provided more food for thought on the link between ‘citizenship by investment’ programs and inequality, by outlining a dual structure of inequality. A first axis of inequality lies at the inter-state level, with some states providing (far) more mobility options and guaranteed rights than others. The second axis is formed by intra-country inequality that shows growing concentration of wealth and a rise of nouveaux riches. This dual structure produces wealthy individuals from less developed countries who are looking for improved mobility via citizenship programs.

Applying contract law, Elena presented an innovative approach for assessing the lawfulness of ‘citizenship for sale’ programs. Under the presumption that some of these programs truly are a form of selling citizenship, she showed – on the basis of contract law – that arguments can be made that they are not legitimate, in view of intra-systemic frictions in the legal system of the State ‘selling’ citizenship, such as that a passport cannot be sold by individuals. Whereas the keynote and these two presentations focused on investment citizenship, it became increasingly clear during the seminar that similar questions on ethics and morality can be asked in all instances where money is willingly or unconsciously, openly or more secretively used as tool to ‘manage’ migration.

Governance of migration through funding takes place where donors or sponsors are at play, and migration opportunities are determined by actors and interests that might ignore the interests of (prospective) migrants. One of the contributors to the research seminar, Catharina Molinari, showed that the changing landscape of EU funding, especially since 2015 and in response to the migration crisis, is mainly directed towards the exclusion of migrants as more money is invested in border control and return operations. Similarly, in the multilateral framework of the UN, earmarked financing of agencies such as the International Organization for Migration contributes to a management of migration that is largely reflective of the specific interests of donors. Thus, Elaine McGregor from the Maastricht University indicated that between 2000 and 2016, contributions from notably Germany and the Netherlands were mainly earmarked for return – a primarily European concern.

Through funding of NGOs and IOs, State actors outsource public duties and responsibilities in the field of migration, not only to exclude but also to assist. The example of Morocco, presented by Lorena Gazzotti from the University of Cambridge, shows that outsourcing can lead to situations where transnational political concerns, discussed in NGOs, IOs or faith-based organizations, co-determine local configurations of governance. In Morocco, a system of social assistance for migrants has been built on a fragmentation of responsibility and costs of care between the State, NGOs, private actors, donors and individuals. It results in a system based on targeting instead of universality, as the mandate of the implementing organization may determine who the beneficiaries are and give rise to a neoliberal regime of social governance.

Private sponsors increasingly become a tool in the outsourcing of duties and responsibilities to manage migration, such as informing the migrant of the relevant law. Again, the interests of the migrant are not always taken into consideration. In her presentation, Tesseltje de Lange (University of Amsterdam) made clear that sponsorship of companies to attract highly skilled migrants increases the migrant’s dependency on the employer due to a lack of contact between the state and the migrant. The contact between state and sponsor is focused on the economic needs of the company, but outsourcing responsibilities can have repercussions for the migrant. Companies that do not comply with their responsibilities may have to pay administrative fees, but migrants may lose their residence permit – without having any influence on the non-compliance. Similar to what happens in cases of earmarked funding, migrants are stripped of their agency.

Income requirements are a well-known selection tool in the management of migration, including income requirements for sponsors of family migration. In her presentation, Anne Staver (Oslo Metropolitan University) pointed out how income requirements may serve both as a selection mechanism and as a type of incentive to ‘get to work’ in order to qualify for permanent stay. Based on discourse analysis, she showed how in Norway these income requirements are interwoven with a debate on the sustainability of the welfare state. The analysis also brought to light that income requirements may seem neutral and objective – as they avoid explicit nationality, gender or race-based categorization – whereas in practice they can have effects that differentiate according to those characteristics. Nevertheless, income requirements also play a role in inter-state mobility, as Willem Maas (University of Toronto) pointed out. Under the idea of shared citizenship, financial disparities and conditions do exist and have existed. Throughout history, examples of citizenship investment programs can be found, as well as barriers for the movement of poorer citizens dependent on public support, and even programs that try to encourage out-migration of the poor. Maas wonders whether these historical examples may help us to analytically conceptualize the role of money in migration.

The gender-based effects of money as an element in relation to EU citizenship was explored by Sandra Mantu, who showed that the market-oriented EU citizenship model attaching value to work and financial self-sufficiency is also a gendered construct. She argued that the reach of EU citizenship is limited because of the mutual reinforcement of the market model and the gendered construct. The role of money in care arrangements, explored by researchers from the Radboud University Nijmegen in cooperation with researchers from the University of Mainz, also points at structures that especially affect women. A comparison between Germany and the Netherlands on long-term care arrangements for the elderly shows how money has a triple role. First of all, when it comes to affordability of the preferred care option, when regular arrangements are not affordable or available, people resort to live-in migrant care. This is the case in Germany more than in the Netherlands. Secondly, having enough money allows people to reconcile financial affordability with care preference. And thirdly, once arrangements have been established, money is used to maintain or improve the quality of the care arrangement. The research shows that money is a very important factor in the decision to enter into a live-in migrant care relationship.

Betty de Hart and Judith de Jong (VU Amsterdam and University of Amsterdam) focused on discriminatory consequences that financial measures in migration matters have on mixed-status families. Their research on mixed-status families, where one of the members has no migration status and the other members are citizens or legal residents, brings to light how the Dutch policy of taking away benefits from families as a consequence of the fact that one member has no migration status equally pushes the legally residing or citizen members of the family to the margins of society. Taking away benefits from a mixed-status family affects the citizen partner because he/she has a mixed relationship. De Hart and de Jong argue that this is discrimination of the citizen partner and should be justified on accounts not linked to the status of illegality of the partner. As a result of such discrimination, the Dutch policy seems to discourage mixed couples.

Finally, two contributions to the seminar focused on how financial relations in a situation of migration may be seriously affected by legislation in other fields. In a presentation on choice of law in marriage law, Rorick Tovar (Bern) argued that migration may mean that the law applicable in case of divorce changes, and this represents a barrier for married couples planning to migrate. Tovar proposes a different system where couples would have choice of law in order to cope with migration. It would enhance legal certainty and could better address the preferences of the spouses. Christiano D’Orsi (University of Johannesburg) focused on remittances of migrants from Africa and presented several examples of how financial regulations set up to combat money laundering or terrorism affected the possibilities of migrants to send money to relatives. He showed what systems were established by migrants to overcome the impossibility to transfer remittances via regular channels and indicated what risks these systems entailed.

A focus on money matters in migration reveals obstacles, gatekeepers, sponsors, victims and instruments that are very relevant in migration law and policy but are not always recognized as such. The organizers of the research seminar will bring the contributions together in a publication, outlining similarities and differences between them and providing an analytical overview of the role of money in migration.

Annette Schrauwen holds a chair of European Integration, in particular citizenship law and history, at the University of Amsterdam.

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