June 02
2020
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5th May 2020
Covid-19 Employment & Immigration Institutional law

Op-Ed: “EU citizenship and Covid-19: a crisis of citizenship?!” by Sandra Mantu

For those of us for whom home is split between EU countries, COVID-19 made us re-evaluate our relationships with the states to which we legally, socially, emotionally and economically belong. This is partly linked to the travel restrictions that have been introduced by several EU states, jeopardising the most well-known and most appreciated right of EU citizenship: the right to freedom of movement. In a book that I co-edited and that was published at the start of the COVID-19 crisis, various authors examine how EU citizenship reconstructs in unexpected ways what citizenship as a status means and stands for. The book seeks to capture the tensions that result from the nature of EU citizenship itself – neither a citizenship status similar to national citizenship, nor an immigration one – in relation to family life, equality and expulsion. It argues that EU citizenship has made its presence felt especially through the right to free movement and the distinctive form of mobility that it champions, centred around the citizen’s right to move and the state’s diminished capacity to refuse entry and terminate residence rights. In this current context, where free movement is for most of us illusory, is there anything left of EU citizenship?

The travel restrictions and bans imposed by several Member States have brought yet again in clear view the tense relationship between freedom and security and placed the right to mobility into the spotlight. As EU citizens were stuck at internal borders and the free flow of goods and services was threatened, the EU attempted to come up with a unified response. Initially, this response focused on the external borders. The Commission adopted a Communication on 16 March 2020 calling for temporary restrictions on non-essential travel from third-countries into the EU+ area which was endorsed by the European Council. The Commission followed with a Communication on 30 March providing guidance on the implementation of the temporary restrictions. On 8 April 2020, the Commission invited the Member States to prolong the restriction of non-essential travel until the 15th of May, based on the assessment of the restrictions in place. To deal with the fact that intra-EU mobility was severely affected by the reintroduction of internal border controls, in addition to other national containment measures, the Commission adopted several Communications aimed at ensuring the functioning of the internal market and imposing a coordinated set of measures, including in relation to workers. Workers carrying out critical occupations, including frontier workers and posted workers, as well as seasonal workers – especially in agriculture if they perform critical harvesting, planting or tending functions – are designated as special categories of persons whose mobility should not be hindered.

The wisdom and legality of the EU response have been discussed critically here and here. From a citizenship and migration perspective, it is usually at the border and in relation to the right to enter a state that the differences between citizens and foreigners become most apparent: own nationals enjoy a right to enter their state of nationality. The Commission’s communications link the imposition of restrictions to non-essential travel into the EU+ area to the obligation for the Member States to admit their own citizens and third country nationals legally residing on their territory. Exceptionally, other third-country nationals are authorised to enter the EU if they have an essential function or need. For those with a right to enter the EU and for those third country nationals exempt from the travel ban in light of their essential function or need, the Member States may impose restrictive measures such as self-isolation provided that similar measures are imposed in respect of nationals upon return from an area affected by Covid-19. The EU+area is defined as including ‘all Schengen Member States (including Bulgaria, Croatia, Cyprus and Romania), as well as the four Schengen Associated States. It would also include Ireland and the United Kingdom if they decide to align’. EU states are asked to encourage their citizens and residents not to travel outside their territories to prevent the spread of the virus. Guidelines adopted on 30 March instruct the Member States to apply the Schengen Border Code in a strict manner upon entry and verify the authenticity of relevant documents. They are allowed to limit the number of crossing points which remain open and must communicate to the Commission the list of relevant crossing points. Special attention is paid to the situation of EU citizens stranded in third countries who wish to return home. States are instructed to facilitate onward transit of EU citizens and their family members irrespective of nationality and of third country nationals holding a residence permit and their dependants who are returning to their Member State of nationality or residence.

While on paper, most EU efforts seem to be channelled towards the external border, in practice the decision of national governments to close down their borders challenges the reality of intra-EU mobility. In some Member States, such as Romania, the biggest threat was seen as coming not from outside of the EU but rather from within. The Romanian diaspora became the equivalent of COVID-19 and were presented by the media as a threat to national security. Romanians returning from Italy and Spain due to restrictions imposed there that saw them lose their jobs became a source of anxiety and the subject of extensive restrictive measures. Romania declared a State of Emergency on 16 March 2020 due to the spread of COVID-19 and its expected effects. This measure was prolonged by another month until the 15th of May.  Among the reasons for taking this measure was the success of restrictive measures already taken by EU Member States in containing the spread of the virus, including measures taken by EU Member States where large Romanian communities were present. The State of Emergency covers the restriction of rights and liberties, including freedom of movement, the right to private and family life, the inviolability of domicile, the right to education, freedom of association, the right to private property, the right to strike and economic freedom.

In the first month of the state of emergency, the Romanian government adopted several military ordinances (MO) containing measures to prevent the spread of COVID-19 that affect all persons entering or leaving Romania. They include isolation and quarantine for persons coming from high risk areas, gradual closure of border crossings, restriction or prohibition of road, rail, maritime, water and air travel. By now this has led to the suspension of flights operated to and from countries on the list of COVID-19 ‘red areas’ (including Spain, Italy, France, Germany Austria, Belgium, the Swiss Confederation, the USA, UK, the Netherlands, Turkey and Iran). MO 3 of 24 March 2020 established that all persons entering from a ‘red area’ country must be placed into institutional quarantine for 14 days, while those travelling from the remaining ‘yellow area’ countries must go into self-isolation.  MO no. 2 of 21 March 2020 prohibited the entry through border crossing points of aliens and stateless persons unless they were transiting Romania through corridors of transit organised by agreement with neighbouring countries. In line with the EU position, exceptions were introduced for certain categories of third country nationals and stateless persons.

MO no.7 of 4 April 2020 made exceptions for the transport of seasonal workers from Romania to other states with the approval of the competent authorities of the country of destination via irregular flights (charters). The relaxation of travel restrictions for seasonal workers through the same MO that suspended regular flights to and from countries where seasonal workers are to travel, coupled with restrictions against own nationals returning home are an exemplification of contradictions incumbent in EU citizenship. Romanian media showed chaotic images of Romanians hoarded in the parking lot of one of the regional airports without any taking any social distancing measures, waiting to be flown to Germany, where they were eagerly awaited to start picking asparagus and strawberries.

The exportation of (cheap) labour – Romanian nationals – is Romania’s most successful export product and as such, for them exceptions can be made from travel restrictions even in times of crises. The ‘new migration diaspora’ is expected to do its bit for Romania’s economic well-being by working elsewhere and spending their money home. Yet, it is unclear what legal treatment awaits seasonal workers engaged in critical agricultural work upon their return ‘home’. The Commission guidelines do not enlighten us. Yet, it is precisely in this context of ‘home’ treatment where the reach of EU citizenship reveals its limits, not least due to the intricate distribution of competences between the EU and national levels and the possibility to derogate from free movement on grounds of public policy, public security and public health.

Even in times of crisis, as workers, EU citizens continue to enjoy mobility rights as part of the internal market, while EU citizens are the object of repatriation efforts. Nonetheless, what the COVID-19 crisis reveals is the increasingly blurred lines between EU citizens and own nationals as part of the same supranational system. It is high time to take EU citizenship seriously.

Sandra Mantu is Assistant Professor of Law at Radboud University Nijmegen and co-editor with Paul Minderhoud and Elspeth Guild of ‘EU Citizenship and Free Movement Rights: Taking Supranational Citizenship Seriously’ (Leiden: Brill, 2020). 

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