EU Migration Policy and its Constitutional Rationale : A Cosmopolitan Outlook

There is much confusion among EU experts about the legal status of third-country nationals. This is hardly surprising, since this uncertainty reflects conceptual tensions at the heart of the European project. For half a century, European integration has been defined by the abolition of borders. Through-out Europe borders have been erased both legally under the fundamental freedoms and physically through the creation of the Schengen area. Against this background it was no far fetched assumption that the European Union would grant workers from Ukraine or spouses from Algeria similar rights as EU citizens living in another Member State. Yet, Europe's mission of promoting transnational freedom is not replicated in the area of freedom, security and justice. Instead of dismantling borders, EU activities re-confirm the relevance of borders towards third states – both physically through external border controls and legally under the emerging EU immigration and asylum acquis. This article identifies underlying motives and resolves the puzzle by proposing a positive constitutional rationale for the substantive rules of European migration policy