The growing role of immigration law in universal higher education: case studies of the United States and the EU.

• Author: Olivas, Michael A.
• Position: III. The EU as a Loose Federation through IV. Conclusions and Cautions, with footnotes, p. 393-431

3. 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)

   1. 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. Thus, there was another founding document, the 2000 Lisbon Strategy, wherein the participants established the voluntary and non-binding structure of the exchange mechanisms, particularly the means to formulate goals and targets. (137) In 2010, the European Higher Education Area was agreed to, and has reinforced the centrality of student and scholar exchange and mobility within the EU framework. (138) Over time, there have been agreements to recognize credit for transfer, to engage in reciprocal curricular cycles, and to coordinate the many different features of the nearly fifty State systems, which vary widely from country to country. (139)

   From its inception in 1998, the Bologna Process's major concern has been facilitating cross-national coordination for students, who, for example, were Belgian nationals who wished to attend the University of Paris, students from Scotland who attended Italian law schools, and the like. Just as "study abroad" or "foreign study years" anywhere in the world, the simple aspiration of a student wishing to study beyond her national institutions is not really simple: the student has to have timely and transparent information about the institutions (home and away), the language skills and fluency to undertake study in a language not necessarily her own primary home language, the ability to meet all application criteria and effectuate the admission, and the two big hurdles, the financial and subsistence support, and the documentation and attention to detail that are the hallmarks of the required immigration mechanisms. While these commitments to such mobility are undoubtedly genuine and important, the countries have different national goals, asymmetrical financial resources to improve student mobility, and wildly different systems of higher education. (140) Some States will always be recipients of student flows, while others will likely remain sending entities, especially if there is a mismatch between student choices and a State's institutional opportunities, re-creating the larger perennial debate about "brain-drain" issues. The centripetal forces of such multilateral organizations have evolved into soft law mechanisms, facing the vagaries of political choices in each Member State, uneven political leadership or State commitments to postsecondary education, and, especially since the 2009-2012 worldwide economic downturn, their economic soundness and credit worthiness. (141)

   This last dimension, the diversity and asymmetry among such a diverse and growing body, brings to mind the heterogeneity of the fifty-plus states and other political entities in the United States, where federal financial aid plays a large role in smoothing out the variegated polities and system costs across the states. To an imperfect extent, and dependent upon federal appropriations and funding patterns, there is an equalizing function at play, with greater student financial aid being met by an accordingly larger "need-based" aid. Of course, this is largely dependent upon a detailed financial aid assessment mechanism for parents and a complex administrative regime at the institutional level, one that is more often than not skewed by wealth, advantage, immigration status, and other socio-cultural characteristics. (142)

   Perhaps most evident in this confusing process is that politics play a disproportionate role, as when good winds blow (e.g., former UK Prime Minister Tony Blair's strong commitment to increasing international higher education), or when there is an ill-wind blowing, such as declining percentage of Pell Grants available to students in the United States, reflecting a shift from non-reimbursable grants to repayable or income-contingent loans as the public perception of college-going being a public good to a growing sense that it is a personal matter, better left to markets and more expensive means such as loans, either subsidized or not fully underwritten by the state or federal government. The increased U.S. use of various tax measures (such as Section 529 prepaid plans or tuition tax credit and other revenue-neutral mechanisms, ones that largely favor the well-to-do) also reflect a clear point of view that education is a personal, private good rather than a communitarian public good. (143)

   Regarding the European models, Stefanie Schwarz and Meike Rehburg have noted:

   Public student support proves to be an area with highest heterogeneity throughout Europe. We observe completely different notions of the role of students in society and of the support concepts. By comparison, four types of student role models and support modes emerge. (144) They have also usefully categorized these "student role models":

   [S]tudents are regarded as responsible citizens... [n]early all students receive financial support, there are no student fees. This model is mainly applied in the Nordic countries[.] [I]t is not customary to allow financial relief, like tax allowances or children's allowances, for the students' parents. Students are... young learners: parents are responsible for the education of their children, [who will only get support if the] parents are not sufficiently able to pay. This model can be found in Western and middle European countries. ... Usually, students in these countries have to pay fees. Those who receive public student support, however, are exempted. Students are... children sheltered by their families. This model can be observed in Southern European countries... [and] [t]he majority of students lives with their parents during their studies and the core family must ensure the children's education. ... Financial help by the State is offered only in case of urgent need. [H]igher education institutions in these countries charge student fees (except for Greece). [In] the investor model which is represented by the UK and the Netherlands... students are... investors in their future career. [S]tudents must substantially contribute to their education. Hence, student fees are high. ... [M]any...