Evolution of migration policy in the European Union and Estonia

Introduction

The twenty-first century has been characterised as ‘the age of migration’ − essentially because more people live outside of their country of birth than ever before. According to data from the United Nations, during the period between 1990-2015 the number of international migrants increased from 190 million to 244 million, i.e. from 2.8 per cent to 3.3 per cent of the world´s population. Notable shifts are taking place in the geography of international migration. Until recently, the majority of international migrants moved from developing countries to developed countries, but now migration flows between the countries of the Global South have attained equivalent volumes. The geography of migration flows is changing in line with changes in the global economy, and therefore besides the advanced economies of Europe and North America, migrants are attracted to other fast-growing markets elsewhere. Despite this, Europe is still the main destination for migrants − hosting about 76 million immigrants, including intracontinental migrants.

In light of the increasing number of international migrants and the growing openness of societies, migration management has become more important than ever for host governments. For developed countries, including those in the European Union (EU), the challenge is essentially how to facilitate skilled migration and at the same time restrict the arrival of less desirable migrants. Thus, this subchapter aims to answer two questions. First, what are the key features of the EU´s immigration policy, and second what are the characteristics of Estonia´s migration policy and how has it changed since re-independence? Before taking up the main questions a short overview of the complexity of migration policy is presented.

Spheres and challenges of migration policy

International migration is defined as permanent (duration of at least 12 months) movement of persons from one country to another. Looking more closely, this phenomenon involves a number of different sub-processes depending on the direction of migration (immigration and emigration), type of migration (labour, study, family or forced migration), qualifications of the persons who move (skilled and unskilled migration) and other conditions. As a result, the immigrant population is formed from immigrants and their descendants - while seen from the side of the countries of origin, emigrants and their descendants are forming a diaspora.

Migration policy is a set of different measures that aim to influence migration processes in a desired direction. In democratic countries, including EU nations, this implies focusing on regulating immigration through the volume, origin and composition of immigrants (Czaika, de Haas 2013). There are no direct restrictive measures in democratic countries to regulate emigration, therefore only indirect policies, like policies that stimulate economic growth and social welfare, may influence the decision to leave the country.

Due to the diversity of migration processes, the impact of indirect policies on migration is wide, including economic (e.g. labour force), legal (e.g. citizenship), cultural (e.g. adaption, integration), security (e.g. terrorism) and other aspects. These policies may even have a greater impact on immigration and emigration than the migration policy itself. For example, border control measures are tied to security matters; requirements for the admission of foreign labour takes into account the needs of employers and the general situation in the labour market; immigration of foreign students is due to the internationalisation of universities; etc. Immigration policy directly regulates legal immigration, prevention of irregular immigration, return, international protection and visa matters. Figure 1.3.1 reflects the sub-fields of immigration policy that are implemented directly and the policies that are indirectly influencing immigration.

Figure 1.3.1. Policy spheres influencing immigration

Source: DEMIG Policy Codebook (Oxford University), European Commission Migration and Home Affairs, UN Population Database.

Due to the multiplicity of areas that are linked to migration, it is important that various actions that directly and indirectly affect migration policy are designed and operate in synergy. For example, if immigration is facilitated for economic reasons, then it is important to focus on the integration of these immigrants as well. Or if policy makers wish to boost a certain type of migration (e.g. labour migration), then likewise they should be ready to deal with secondary immigration. Creating an integrated and coordinated approach to migration policy-making is a serious task, because the resources for the development of various measures and programs are limited and compete with different needs within the host society. On a practical level, migration policy converges with other horizontal policies (the agendas of other government departments), and thus calls for effective interagency cooperation in order to reach policy aims.

Compared with other policies, which are aimed at influencing population processes (such as family or health policy), one particular feature of migration policy is a broader implementation of differentiated approaches. This means that countries are focusing on creating immigration regulations that allow admission for “desirable” migrants and restrict the entry of “undesirable” migrants. Immigration quotas, but also other systems or qualitative requirements, are used to influence the volume and composition of immigration. These policy instruments allow giving preference to one migrant group over another. A differentiated approach can be implemented in particular for labour and educational migration. International law puts a limit on the extent to which the inflow of family and humanitarian migration can be restricted.

A special feature of migration policy is that it simultaneously affects several countries – the country of origin, the destination country as well as transit countries. Therefore, the same policy may have a positive impact on one country and negative on others. For example, a desire of one country to gain more highly-qualified labour may mean ‘brain drain’ for the other country. Thus, migration policies of different countries can be mutually-supporting, neutral or conflicting. The latter can be clearly felt in the management of the refugee crisis (see next subchapter).

Given the complexity of international migration and the influence of indirect policies, migration management may present a real challenge for policy makers. They should not look for one or two measures that magically solve migration problems, as there are so many factors that impact the issue. A thoughtful and well-coordinated action by policy-makers from different areas is required to influence migration effectively. It is also important to acknowledge that migration is a process that changes over time, and therefore regular reviews and updates of policy are needed.

The European Union’s common migration policy

Although development of migration policy is the sovereign right of every country, the policies of the EU Member States (MS) are heavily influenced by the Union´s common approach to migration. The common EU migration and asylum policy is based on the European Council´s conclusions at the 1999 meeting in Tampere, which resulted in the MS ceding part of their sovereignty over developing their own migration policy to the EU. The Union has the power to set common minimum conditions under which third country nationals (TCN) may lawfully enter, reside, study and work in the territory of the EU. Each MS still has the right to decide on the total number of immigrants allowed into their country, since all final decisions on applications, long-term visa requirements and conditions for residence and work permits are not regulated by the Union. Also, matters related to integration are left to the competence of the MS.

In the framework of the EU migration policy, the right of free movement of the Union´s citizens, and the requirements for TCN related to entry and residence in the EU are distinguished. The first provisions concerning free movement of workers were already included in the 1957 Treaty establishing the European Economic Community. With the creation of EU citizenship in 1992, the right of free movement was extended to all citizens of the MS, irrespective of whether they are economically active or not. Later the same right was extended with the EU acquis to the family members of EU citizens who are third-country nationals. In addition, other steps - legal and other measures - have been taken to facilitate the intra-EU mobility of people (e.g. the Erasmus + mobility program for students).

While the mobility of EU citizens may be restricted only in exceptional cases, the TCN are subject to restrictions and border controls upon entering the EU. The EU has paid particular attention to the harmonisation of the conditions of entry for highly-skilled workers, foreign students and researchers, seasonal workers, posted workers and family reunification. Over the years several directives that regulate immigration by these groups have been adopted. In these steps the EU sees the response to labour shortages and to the competitiveness challenge of the region.

Besides facilitating legal migration, prevention of irregular migration is also in the focus of the EU. In addition to directives (the so-called return directive, employer sanctions directive, carries obligation directive) and regulations, the EU has concluded 17 readmission agreements with third-countries on returning irregularly-staying immigrants to their countries of origin. Unfortunately, with most of the African countries, the EU has not yet reached these agreements, but negotiations are currently in process with several states. Thus, returning irregular migrants who reached Europe during the refugee crisis will pose a challenge for the coming years (see next subchapter). Furthermore, to prevent irregular immigration, the EU supports developing countries through the global approach to migration and mobility and through neighbourhood policies.

In recent years, more than two million new immigrants from third-countries have reached the EU per year and almost a million EU citizens have settled in a different MS from the one they were born in. Since 2008 three MS have hosted almost half of all the immigrants: Germany, Great Britain and Italy. The Mediterranean countries are suffering under the load of the mass influx of refugees and irregular migrants (see next subchapter). Thus, the volume and reasons for migration differ in many ways in the EU Member States, and this has led to different emphases in their migration policies.

Figure 1.3.2. Government views on immigration, European Union Member States, 1996-2015.

Source: United Nations, Population Policies Database.

The majority of governments consider their countries existing immigration level adequate or too high according to the UN´s population policy questionnaire (Figure 1.3.2.). Countries are willing to increase the immigration levels for highly-qualified workers. To encourage immigration of top specialists to the EU, in 2009 the European Commission created the so-called Blue Card system. The results of the implementation of this system have been modest – since the adoption of the directive in 2011 approximately 50,000 permits have been issued, the majority (86%) of them in Germany. Competition for the same talent is the main obstacle for the development of the EU´s joint labour migration system. The implementation experience of the Blue Card illustrates the difficulty of the common EU migration policy, where competition between the states makes it hard to agree on common policy objectives and activities. Therefore, most MS are preferring to have their own national labour migration recruitment schemes, which comprise the following: an employer-led system, a points-based system and a sector-based system (Table 1.3.1).

Table 1.3.1. Recruitment systems for foreign labour, European Union Member States, 2016

Source: European Migration Network

1. Not used since summer 2016.

2. So far not used.

All these systems have their advantages and disadvantages. The advantage of employer-led systems is that work is guaranteed to the migrant immediately upon arrival, and the employer will get the employee he needs. However, in dynamic market conditions tying an employee to a particular employer makes the system relatively rigid. Since 2008 Sweden has implemented a modified employer-led system, in which the state gave up setting its own terms and delegated the decision-making fully to the employer. The analysis of the reform shows that, as a result of this, recruitment of foreign workers increased paradoxically in sectors where there was no labour shortage and not in the sectors where labour was needed. Thus, the state abandoning its regulatory role increased labour supply in these areas even further by allowing employers to reduce salaries (Emilsson 2016). Therefore, the employer-driven and the demand-led migration policy models may not be the most suitable for smaller countries.

The advantage of the points-based system is its transparency and flexibility in taking into account labour market needs. Nevertheless, Denmark decided to drop the system recently (summer 2016). The reason was that employers were not involved in the selection process, which is why immigrants who arrived in the country using the points-based system did not often find jobs matching their qualifications. According to a study done in 2010, 40% of the immigrants arriving in Denmark using the points-based system did not find employment matching their skills and 60% of them worked part time only (Sorrentino, Jokinen 2013). The strengths of the sector-based system are the speed of the work permit application process and the lack of bureaucracy. A disadvantage of the system is deemed to be the strong influence of employers´ lobbying to compile the list of sectors and occupations. This may open the way for exploiting the system, when employers, instead of increasing productivity and improving their business models, hire cheaper foreign labour to solve their competitiveness problems.

Therefore, the majority of countries do not use a single system, but implement the systems in combination or in parallel. Which elements are applied depends on the specific goals of the country and the labour market situation.

The formation and characteristics of Estonia’s immigration policy

Since regaining independence Estonian immigration policy essentially has been characterised as conservative. (Siseministeerium 2013). In migration policy, conservativeness refers to the restrictions established for entry and stay of immigrants (based on the volume and origin of immigrants or reason for migration). Restrictions on immigration, such as the annual immigration quota and specific grounds (working, studying, family reunification) for granting residence permits were already set up in the process of Estonia regaining independence. These main instruments, although revised over time, based on EU legislation and labour market needs, are still in effect in Estonian immigration policy today.

From the legislative point of view the basis of contemporary Estonian migration policy was laid down by the Immigration Act, which was adopted in 1990 and established the ground for regulating immigration. In 1993 it was replaced by the Aliens Act. However, the regulations on the volume and composition of immigration established by the Immigration Act are in principle still in use today. In 1997, Estonia joined the UN Convention Relating to the Status of Refugees and the 1967 Protocol that added the Refugee Act to the migration legislation, which was replaced by the Act on Granting International Protection to Aliens in 2006. Estonian immigration legislation has been significantly affected by the EU accession (2004) and joining the Schengen area (2007, 2008) which led to the implementation of the EU-wide principles and acquis. Movement of EU citizens and their family members is regulated by the Citizen of the European Union Act that came in to effect in 2006. The Obligation to Leave and Prohibition on Entry Act, which was adopted in 1998 and focuses on the return of TCN found to be present illegally, also belongs to the core immigration legislation

Immigration quota

The conservative approach to migration following re-independence was a reaction to large-scale immigration during the Soviet time, which resulted in one of the largest foreign populations in Europe. In order to manage subsequent immigration, an annual immigration quota was established by the immigration act. The size of the quota was based on the notion that the number of new arrivals should correspond to the integration capacity of the society. This level was set to 0.1% of the permanent population of Estonia. In the beginning of the 1990s it corresponded to approximately 1,600 immigrants per year. The same level is used today, but due to a decrease in population it affects the settlement of about 1,300 TCN in Estonia per year. Regulating immigration by quotas is quite common in the EU countries. This instrument is typically used to restrict labour migration, linking the quota to labour market needs (e.g. Austria, Italy, Spain) or to the share of the working-age population (Slovenia). In other countries, therefore, the quota is set more to protect local labour markets from foreign labour and not so much to the integrating capacity of the society. The level of the immigration quota has not been changed significantly since it was established, however the list of groups who are allowed to settle in Estonia outside the quota has been expanded. Initially the quota was not applied to Estonians, Estonian citizens and their descendants, or foreigners who had registered their place of residence in the former Estonian SSR. Ensuing from the foreign policy and economic interests of Estonia, the EU MS nationals, citizens of Iceland, Norway and Switzerland were exempt from the quota in 1997. Two year later US nationals and citizens of Japan were exempt from the quota. At the same time restricting immigration for educational purposes by immigration quota was also stopped.

Since 2002 all family reunification cases were exempt from the quota system. While the groups mentioned above were exempt from the quota based on foreign, economic or education policy considerations, the exemption of family members was initiated by Supreme Court judgements (Administrative Chamber 3-3-11-00 and 3-3-1-15-00). According to the judgements, prior fulfilment of the immigration quota is not sufficient ground to restrict the right to family reunification.

Currently the quota is applied only to labour migrants from third countries, who make up about a tenth of the total immigration to Estonia and less than a third of the immigration from third countries. As of 2017 labour migrants coming to work in the ICT sector or in a start-up company are exempt from the quota. Since the number of immigrants restricted by the quota has decreased over time, then its effect on immigration is far less significant than it was when it was first established in the 1990s. This is confirmed by the fact that the immigration quota has been completely filled twice (2007 and 2016) in the past ten years (Figure 1.3.4). Hence, the immigration quota in Estonia has been transformed from a universal policy instrument to a selective immigration regulator that focuses only on controlling labour migration from third countries.

Figure 1.3.3. Completion of immigration quota in Estonia, 2005–2016.

Source: Police and Border Guard Board.

Regulation of immigration outside immigration quotas

Although a majority of the immigrants to Estonia are not subject to quota restrictions, this does not mean that the state has no means to affect the migration of these groups. TCN can come to Estonia to work, to study or reunite with their family, which are also the most common grounds for granting resident permits. In addition, there are other types of residence permits, but they are based more on making exceptions and implementing international law (e.g. applicants for international protection, victims of human trafficking).

The regulation of labour migration in Estonia is primarily based on the protection of the domestic labour market and the preference for a qualified labour force. To this end, there are also qualitative restrictions on the foreign labour force, in addition to quota restriction. The most significant of these is the salary threshold that came into effect in 2008. The main aim of the threshold was to allow only immigration of highly-qualified workers that Estonia was lacking and preventing the replacement of the domestic labour force with cheap foreign workers. For this purpose, employers were given the obligation to pay TCN a salary that is more than a quarter of the national average. Today this requirement has been relaxed to the Estonian average. Since the implementation of the EU Blue Card directive in 2011 and the introduction of the top specialist regulation (2013) two additional salary levels were introduced for foreign workers – 1.5 of the average salary for EU Blue-Card holders and 2.0 for top specialists. Estonian legislation does not contain a definition of ‘highly-qualified worker’ – such workers are indirectly defined by their higher salary threshold. This is a qualitative restriction that is applied on top of the immigration quota. The second major requirement when hiring foreign workers is the obligation of the employer to make sure that the position cannot be filled with a suitable worker from Estonia (the so called ‘labour market test’).

Family reunification of Estonian citizens and TCN residing in Estonia are limited to spouses and close relatives (minor children, dependent adult children and [grand]parents). The right is not extended to the wider circle of in-laws. In addition to the list above, EU citizens’ family members include registered partners and dependents, which can include siblings, aunts, uncles, common-law marriage and same sex partners. A wider implementation of the right to family reunification in the case of EU citizens has resulted in discontent among TCN same sex partners, who have registered their partnership and want to reunite with their partner in Estonia. The Chancellor of Justice has recommended extending that right to same sex partners from the third countries.

Foreigners can come to study in Estonia on all educational levels in schools and programmes that have nationally-recognised curricula. Current arrangements of study migration are characterised by the delegation of decision-making to the educational institutions, who carry out ex-ante controls as to whether the person meets the conditions to study in their institution. This is followed by supervision on the part of the state concerning whether the foreigner meets the criteria to settle in Estonia (financial opportunities, security risks, etc.)

Unlike with TCN, the immigration of EU citizens can be directly managed only in very exceptional circumstances, hence it can be argued that EU MS have mostly delegated the decision making on intra-union mobility to the citizens. At the same time the practical take-up and opportunities for the freedom of movement depend on different conditions prevailing in society (availability of jobs, skill requirements for workers, level of salaries, work and study opportunities for family members, available housing, etc.). These are the conditions that MS can influence and thereby affect the migration of EU nationals.

Immigration in state strategy documents

Selective facilitation of the arrival of foreign labour was discussed at the political level for the first time in the Government Coalition Treaty of 2003. This marked a significant shift in the approach to immigration, acknowledging immigration from third countries as a potential profit for the Estonian economy and labour market. Subsequent governments have carried on with the notion of skill-based selective migration policy. A shift in attitudes is also reflected in the wording emphasis. If previously Estonian migration policy was referred to as conservative, then since 2014 immigration policy has rather been characterised with words such as ‘managed’, ‘balanced’ and ‘knowledge-based’ (Siseministeerium 2015). This presumes that migration policy decisions, as in other areas, have to be based more on research and analysis than before.

The declared goal of the current Estonian immigration policy is the admission of foreigners who give added value to the society and who are in line with the public interest (Siseministeerium 2015). The same notion is put forward by the talent policy action plan Work in Estonia and the project aimed at the return of Estonian citizens, aspiring to increase the engagement of (foreign) specialists in the Estonian labour market and the internationalisation of the economy. The goal of migration policy is phrased rather vaguely in the state development documents. It is not clear from the documents what ‘added value’ for society means. Immigration has not been clearly linked to the decreasing population and aging, and to the changes that they bring to the society and the labour market.

As mentioned above, a significant share of immigration is made up of groups whose arrival in Estonia cannot be restricted (family migration, beneficiaries of international protection). In the case of these groups, the state has to consider accepting immigrants who do not necessarily belong to their preferred list. For these groups the main attention should be concentrated on integration and adaptation issues. Successful adaption is the best guarantee that immigrants do not become a burden to the social security system and a threat to public order in their host country (Asari et al. 2015a). To facilitate this, as of 2015 all newly-arrived immigrants can take part in the free welcoming programme. The programme includes Estonian language training and an overview of the functioning of the Estonian state and society (see the third chapter of the report).

To conclude the overview of Estonian migration policy it is important to note that in addition to expanding the opportunities for selective immigration, it is equally important to maintain the notion of the nation-state (Siseministeerium 2015). Finding balance between those two objectives is one of the main challenges for migration policy in Estonia, especially given that compared to the first years of re-independence, the state can directly influence only a very small part of the immigration agenda, not to mention emigration.

Conclusions

According to the data gathered by the UN, the attitudes of governments towards immigration has become slightly more open in the last decade, while at the same time being coupled with the growing aspiration to select ‘suitable’ immigrants (UN 2013). Countries are competing more than ever and working consciously to attract the most talented. Research shows that the creation of one high-tech job (e.g. in the ICT sector) leads on average to the formation of five additional workplaces (Moretti 2013). On the other hand, the developed countries are the destination for millions of people who are seeking a better and safer life than in their home country. Being part of the open and intertwining world, Estonia is facing the same challenges.

At present Estonia is noticeably less active when engaging new foreign labour as compared to the Nordic countries and many other developed economies, despite the fact that demand for qualified workers is also present in Estonia (Kuum et al. 2016). A working group on economic development led by Erkki Raasuke ranked the Estonian labour market as occasionally closed to foreign talents when compared to the most successful talent magnets. In 2016, the World Economic Forum placed Estonia in 69th place among 138 countries regarding attracting talent and in 84th place on retaining talent (Schwab 2016). At the same time, notwithstanding large-scale return migration during the 1990s, Estonia is still placed second among EU MS in terms of the proportion of the immigrant population (including foreign labour).

With the support of economic policy arguments in the recent decade, Estonian migration policy has taken steps away from conservativism towards fostering selectiveness of immigration. Amendments introduced to the Aliens Act demonstrate that at the same time Estonia has become more selective, favouring certain immigrant groups over others. This is overtly manifested in the labour migration, which is fostered on the one hand, but restricted with the immigration quota and qualitative requirements (salary threshold, labour market test) on the other. In the light of the changes made to the legislation, it can be said that present-day Estonia is open to the arrival of foreigners who want to work and study here, who are able to provide knowledge and skills needed for the development of the economy and society. Family reunification and granting international protection is based on internationally-agreed-upon humanitarian premises. It is therefore difficult to influence these migration flows with policy. In the case of family migrants and applicants for international protection, the main policy focus should be on integrating newcomers into Estonian society.

In the last decade a majority of the EU MS have introduced measures to facilitate the arrival of skilled labour, researchers and entrepreneurs (Eesti Uuringukeskus 2014). Similarly to a majority of the MS, Estonia uses an employer-led recruitment system, where the employer decides on the need for foreign labour, but the state directs this choice with its own terms and conditions (immigration quotas, salary thresholds). The advantage of this system for the immigrant is the existence of work upon arrival. The system guarantees the employer a relevant employee. An overly strong connection with the specific employer is, however, considered to be the disadvantage of the employer-led system. Estonia has attempted to overcome this shortcoming by allowing employment by several employers. Since 2016, there has been an opportunity for sector-led recruitment in Estonia. However the list of specific sectors, where businesses would recruit foreign workers on preferential terms, has not yet been developed. Given that the immigration quota has been filled only twice in the last decade, it seems that there are modest preconditions for introducing the point-based system. Estonia’s international attractiveness is low compared to the large EU immigration countries. Consequently, instead of tightening the selection criteria, more attention should be paid to social development and introducing the country abroad.

How does the Estonian immigrant profile in the 21st century correspond to the goals set in the migration policy? According to the last population census and the study commissioned by the Ministry of the Interior (Asari et al. 2015b), immigrants who have arrived in Estonia since 2000 are in their prime working age (aged 25 – 49). Comparing the same age group among persons born in Estonia, it is important to note that the immigrants have a somewhat higher educational level. Newly-arrived immigrants are mostly highly-qualified and skilled workers. One of the policy goals set in 2003 to gain educated and skilled workers has been achieved in general terms.

On the other hand, the Estonian immigrant population overall manifests lower employment and higher unemployment rates compared to the native-born population. This situation is not specific to Estonia; it is common in most EU countries. Differences in employment and unemployment rates between native and immigrant populations are bigger in the Northern and Western European countries that are the most attractive to immigrants, than in Estonia (Eurostat 2016). From the policy point of view this entails the need for a complex approach to migration policy – intensification of immigration must be coupled with effective integration-enhancing programmes.

In order to support sustainable economic growth, Estonia needs an active and selective migration policy, which requires a more precise formulation of the goals of immigration (particularly with respect to migration profile and volume) based on the needs of the society. For Estonia to remain competitive in the international labour market it also has to present itself as an attractive place to live and work. In the last decade immigration regulations have been noticeably simplified, above all for labour and educational migrants.

Compared to many other EU MS, Estonia belongs to the countries with the least bureaucracy in the area of applying for resident permits. Although the ‘technical’ preconditions for immigration have been created, the environment supporting the daily accommodation of immigrants definitely needs further development (Kallas, Kaldur 2014). It applies to all areas that implicitly affect migration, including integration, education, social and other policies. Because of the wide range of the topics involved, inter-agency cooperation is one of the main challenges of the current immigration policy in Estonia.

As has been done in some other countries (e.g. Finland, Poland, Lithuania) Estonia could consider the development of an (im)migration strategy that would involve a clear formulation of the main state goals of migration policy. Migration-related issued could also be more explicitly included in broader policy development documentations. More comprehensive and up-to-date information on adaption and integration of different immigrant groups in Estonian society is the precondition for knowledge-based and managed migration policy.

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