Immigration Policy in the United States and the European Union

Daniella Regencia, Associate Editor, Michigan Journal of International Law

Since its inception the United States has been a place for the wanderers of the world to come and start a new life. As of 2012, legal permanent residents made up about four percent of America’s population.[1] The undocumented immigrant population as of 2012 was estimated to be around 11.5 million, or 3.67 percent of the population.[2] There are also foreign-born citizens who would have been considered immigrants at one point, therefore adding overall to the number of immigrants who have come into the United States.

The European Union has a similarly sized immigrant population. The foreign-born population in the European Union was about 20.7 million people in 2012, or 4.1 percent of the population.[3] Undocumented immigration has not been as widespread of an issue in the European Union until recently. [4] One estimate has the undocumented population in the United Kingdom as 900,000, or 400,000 more than Italy, which has the next largest undocumented immigrant population in Europe.[5] These statistics show that migration is alive and well in the United States and the European Union and, therefore, sensible polices will have to be created and implemented.

In the United States, the last major immigration reform bill passed through Congress was the Immigration Reform and Control Act of 1986 (IRCA). The act required employers to verify employees’ immigration status, made it illegal to knowingly hire or recruit someone unauthorized to work in the United States,[6] revised the criminal penalties for facilitating illegal migration into the country and allocated additional funds for securing the border,[7] and, significantly, granted legal status to all immigrants who were in the country undocumented.[8] No other legislation since then has made such sweeping changes to the immigration system, though smaller bills have been passed since that have expanded or adjusted provisions in the IRCA.[9]

In the European Union, the Schengen Agreement dictates immigration policy.[10] This agreement established the original Schengen Area in 1985 between Belgium, Netherlands, Luxembourg, France, and the Federal Republic of Germany.[11] In 1999, the area was enlarged and incorporated into the legal framework of the European Union via the Treaty of Amsterdam.[12] The Area now includes 26 countries.[13] All of the countries that are part of the agreement must agree to harmonize laws with respect to drug and gun trafficking,[14] as well as maintain a uniform system for visas and inspection at external border crossings. [15] There is not one overarching legislation passed through the European Commission, rather, the European Commission has continuously issued directives to move towards a comprehensive immigration plan. The E.U. plan allows for family reunification[16], stronger security at the external borders[17], and a plan for managing the return and re-entry of undocumented migrants.[18] All of these directives must be adopted and implemented by member states to create a uniform system across the zone.

The differences between the two systems are significant, as they were both designed to achieve different goals. The American system is exclusionary. The European model is meant to be more inclusive. One reason posited for this variation in policy is Europe’s aging and shrinking work force.[19] Some European countries are encouraging more immigration to compensate for the losses suffered as more workers age into retirement. [20] This problem in the United States is less pronounced because there was a huge spike in births after World War II,[21] whereas Europe had a sharp-decline in births, so the workforce has been ageing and shrinking for longer in Europe than in America.[22] However, many analysts also point out that America’s aging working population will still present a significant problem. [23] Therefore, the United States may also benefit from having a more open immigration policy if it needs to further strengthen its workforce and economy.

[1] See Nancy Rytina, Estimates of the Legal Permanent Resident Population in 2012, Department of Homeland Security 3 (July 2013), (calculation based on 2012 U.S. population estimate of 313.9 million people).

[2] See Julia Preston, Illegal Immigrants Number 11.5 Million, The New York Times (Mar. 24, 2012), (percentage calculation based on estimated population of 313.9 million people, but this population estimate does not include the undocumented immigrant population).

[3] European Comm’n, Migration and migrant population statistics, EuroStat (last modified Dec. 13, 2013),

[4] How do illegal immigrants get into the European Union? CNN (Oct. 30, 2013),

[5] Anil Dawar, Scandal of UK’s 863,000 illegal immigrants…one in four of the EU’s total, Express (Dec. 18, 2012),

[6] 8 U.S.C.A. § 1324a (West 2012).

[7] Immigration Reform and Control Act, Pub. L. No. 99-603, §111, 100 Stat. 3359 (1986).

[8] 8 U.S.C.A. § 1255a (West 2008).

[9] The two most recent bills to pass through congress were the REAL ID Act in 2005 and the Secure Fence Act of 2006. Both measures were aimed at toughening border security and cutting down on illegal immigration.

[10] The Schengen Area, European Commission (Dec. 12, 2008), The Dublin Regulation dictates the procedures for asylum-seekers in the European Union.  Council Regulation 343/2003, 2003 O.J. (L 50) (EC).

[11] The Schengen Acquis – Agreement Between the Governments of the States of the Benelux Economic Union, the Federal Republic of Germany, and the French Republic on the Gradual Abolition of Checks at Their Common Borders, June 14, 1985, 2000 O.J. (L 239).

[12] Consolidated Version of the Treaty on European Union Protocol 2, Dec. 24, 2002, 2002 O.J. (C 325) 7.

[13] Schengen Area, supra note 10, at 2.

[14] Schengen Area, supra note 10, at 5.

[15] Schengen, Borders & Visas, European Commission, (Last updated Sept. 2, 2013.

[16] Council Directive 2003/86, 2003 O.J. (L 251) 12 (EC).

[17] Council Regulation 2004/2007, 2004 O.J. (L 349) 1 (EC) (establishing the agency in charge of external border security – FRONTEX); Communication From the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions Examining the creation of a European Border Surveillance System (EUROSUR), COM (2008) 68 final (Feb. 13, 2008) (establishing surveillance at external borders); Visa Information System, European Commission Home Affairs, (establishing a data gathering system for visas) (last updated Apr. 5, 2013).

[18] Council Directive 2008/115, 2008 O.J. (L348) 98 (EC).

[19] Mohammad Reza Iravani, Immigration: Problems and Possibilities?, 2 Int’l J. Bus. & Soc. Science, 296, 301 (2011).

[20] Id.

[21] Brad Plumer, Three Reasons the U.S. Labor Force Keeps Shrinking, The Washington Post (Sept. 6, 2013),

[22] Ö.B. Bodvarsson & H. Van den Berg, The Economics of Immigration 411 (Springer‐Verlag Berlin Heidelberg, 2009).

[23] Dr. Mohammad Reza Iravani, supra note 19, at 300.