Referendums, migration policy and the EU

Dr Heather GrabbeDirector

Open Society European Policy Institute

Florence, 27 January 2017

The referendum trilemma for EU policy on migration

Political dynamics of referendums:

• favour populists

• disadvantage the cause of migrants

• undermine the EU’s democratic legitimacy

Referendums and populism

• Concept of the people and their will (“la volonté générale”) central to definitions of populism (Mudde 2016, Taggart 2000, Werner-Müller 2016)

• Referendum allows the “will of the people” to overcome representative democracy

Migration and populism

• Migration is about defining the people: good migrants and bad migrants in political discourse

• New counter-culture: defiance of the establishment is to say the unsayable – including “political correctness about migration”

• The establishment is portrayed by populists as defending the internal threat (Wodak 2015) – which can be migrants or others

The EU and referendums

• Referendums challenge the complex EU system of representation: do they make it less legitimate?

• Broader crisis of representative democracy and rise of populism challenge the EU more severely than national democracy

• Responsibility for various aspects of migration policy complex at EU level, relies on national implementation

• Migration evokes political emotions that make EU officials

squeamish: “On ne devient pas amoureux du Marché Unique”

Case studies

• Hungary, 2 October 2016

• UK, 23 June 2016

The 2016 Hungarian referendum

• $40 million of public funds spent on the campaign• Broke taboos: open campaign by a member-state

government against the rest of the EU (not only “Brussels”); state-sponsored promotion of xenophobia

• Question: “Do you want the European Union to be able to mandate the obligatory settlement of non-Hungarian citizens in Hungary without the approval of the National Assembly?”

• Result: turnout 44% (below 50% threshold), 6% ballots spoiled, 98% of valid votes for “No”

Hungarian government argumentsGovernment letter delivered to all households:“We know that there are terrorists hiding among the refugees. But we also know that most of the immigrants are victims themselves. Victims of smugglers and their own governments, but foremost they are victims of the politicians sitting in Brussels who made promises to them that are impossible and unnecessary to keep. Meanwhile the European people and nations are also victims. They must cope with the economic, social and cultural burden migration creates.”

Every sixth billboard on Hungarian road carried a “fact” about migration:“Did you know? Since the beginning of the migrant crisis, harassment of women has risen steeply in Europe.”“Did you know? The Paris attacks were carried out by immigrants.”“Did you know? Since the start of the immigration crisis, over 300 people in Europe have died in terror attacks.”

A failed referendum with a long reach:implications for Hungary

• In 2015, 64% of Hungarians thought “it is our duty to help the refugees” and 52% believed that the refugees should be treated better than government policy of the time.

• By the end of the referendum campaign (September 2016), only 35% thought they had a duty to help refugees, while 38% wanted more humane treatment.

• Consolidation of government control over the media after referendum: takeover of Népszabadság. Revelation that PM requested tax and criminal investigations of EEA and Norway Grants.

A failed referendum with a long reach:implications for the EU

• Who decides on migration policy in the EU? Exposure of the ambivalence about competences in inter-governmental agreements.

• Tied hands argument: Referendum allows the government to opt out of international obligations on the grounds that its position (and even vote) does not represent the will of its people.

• What happens to the EU community of law if members exercise “flexible solidarity”?

Migration in the UK referendum

• Central role of free movement of EU citizens, defined as “migration”

• Huge change in UK debate on free movement 2004-16

• What did people vote about? Huge room for interpretation of result

• PM’s focus on reducing net migration during her time as home secretary

Support for free movement in the EU28Standard Eurobarometer, May 2015

Implications for migration policy of the British referendum

Restricts open debate about interpretation of free movement rules until negotiations are over

Rolling back of CJEU extension of rights linked to EU citizenship, from Van Gend en Loos 1962 to Garcia-Nieto and Commission v UK 2016. “Unelected foreign judges” sensitive to politics?