Academic journal article Houston Journal of International Law

The Growing Role of Immigration Law in Universal Higher Education: Case Studies of the United States and the EU

Academic journal article Houston Journal of International Law

The Growing Role of Immigration Law in Universal Higher Education: Case Studies of the United States and the EU

Article excerpt

III. THE EU AS A LOOSE FEDERATION

Given the mobility across countries that is a key EU citizenship right, there is discordance growing among the Bologna Process, European Union immigration-related laws concerning student mobility and residence, and the various national laws, particularly those that single out or directly affect higher education, particularly the comprehensive program of college student loans and grants. (132)

Various immigration laws of the Member States do not apply directly to EU citizens or they apply radically differently to EU citizens (since EU citizens can still be deported in exceptional circumstances), and there is evident confusion in the large arena of higher education in the EU regarding the general notion of residence and mobility for students.

The Bologna Process is a highly-developed consortial and cooperative program, lubricated by a system of portable financial assistance (loans and grants to students), but it is not directly subject to EU law and exists outside the governance of the EU. Because Member State autonomy reflects itself in the details of a given state financial aid program, the amounts, terms, and conditions vary widely across the states. In addition, every state has a different overarching policy for effectuating the education of its citizens and sojourners, and these political features are also not always interchangeable or compatible with those of other countries. But the biggest impediment to smoothing out the varying postsecondary education benefits (often referred to as "tertiary" education) is the important architecture of free movement rights of EU Member citizens, an important component of EU membership but one that does not always play out in an efficient or non-discriminatory manner in the implementation for student lives and circumstances. (133)

In addition, there are confusing alignments within the EU. For example, the United Kingdom is a loose federation as far as higher education goes: the Scottish higher education rules and law are entirely different from English practices, which leads to confusion. Fees are much lower in Scotland and the grants more generous than those elsewhere in the UK. Moreover, since UK nationals move from England to Scotland within the same Member State, the EU law rules on non-discrimination do not apply. Indeed, in the eyes of the EU, Scots and English students have the same nationality, so it is impossible to apply nondiscrimination on the basis of nationality principle, which arises from the case-law, such as Gravier. (134) As a result, English students in Scotland pay non-EU tuition rates, not the lower Scottish tuition. Thus, being English in the UK can put a student in a much worse position than being a Slovenian, Estonian, or French student in the UK, inasmuch as all these nationalities, EU citizens benefiting from EU non-discrimination on the basis of nationality law, are entitled to pay the lower Scottish tuition rates.

I conclude with a review of the major European Court of Justice (ECJ) decisions that have addressed the immigration and free movement law issues, cases that are developing a soft common law on the crucial portability and transnational dimensions of student mobility and residency. Throughout, I draw parallels with the growing European issues of nationality and the use of immigration controls as admissions mechanisms in the United States and elsewhere in the world. (135)

A. History of the Bologna Process

The Bologna Process, begun in 1998, led to a Declaration agreed to in 1999 by the ministers in charge of higher education representatives, and has grown from the original 29 European States to today's nearly fifty States. (136) On a regular basis, education ministers in Bologna states have continued to refine their intergovernmental coordination, often through the promulgation of communiques and policy frameworks, usually named or identified by the name of the city where they meet periodically. …

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