In the early 1990s, the EU initiated the process to integrate migration from exclusively intergovernmental levels to the European community level - the so-called communitarization process. The process started as soft-laws that were later formalized in 1991 through the Maastricht Treaty. At this time, the migration and asylum issues were placed in the third pillar of policymaking. The move was commonly associated with intergovernmentalists’ ideologies (Moravcsik, 1993).
The integration of migration and asylum issues in the EU formed a two-level game, i.e., the national-level governance and international-level governance. The EU member states were able to take advantage of one level of control when the other one was not favorable for some policy moves. This meant that the member states had greater flexibility than previously when migration and asylum were purely managed by domestic actors. The member states' attempt to search for a policy-making venue and circumvent domestic limitations to best boost their interests of migration control was what Guiraudon (2000) and Lavenex (2001) referred to as
‘policy venue shopping.’ Policy-venue shopping is understood as an attempt by the member
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states to circumvent different actors involved in the EU migration governance, particularly the Court, the Parliament and the Commission, to achieve restrictive migration policies. To the proponents of the policy venue shopping, the Europeanization of migration policies enabled member states to avoid responsibilities that limited them from achieving their desired goals in migration control. One of the significant challenges was judicial constraints that emerged from upholding asylum rights, which tended to limit the jurisdiction of the governments' actions of migration control. Another perceived challenge was the opposition by other state organs such as ministries and parliamentarians, and pro-migrants lobby groups that advocated for more liberal measures in migration management (Kaunert and Léonard, 2012; Lavenex, 2001;
Bonjour et al., 2018; Daviter, 2018).
There have been methodological challenges in examining the preference formation between the EU institutions, particularly the Council. The Council was viewed as the most difficult institution and in which policy-formulation reflects member states’ domestic policymaking process (Bonjour et al., 2018). Hence, policy venue shopping analysis starts from liberal inter-govermentalism where the scrutiny of preference formation at the state level. At this level, preferences were considered to be shaped by national dynamics such as interest groups and political party competitions (Boswell, 2007; Eising et al., 2017). The governments of the member states acted as proxies to resist the unfavorable policies in the Council. The situation became even more complex because policy-making at the EU level did not go through the same process as at the domestic level (Huysmans, 2006b). Member states pursued interests with diverse sensitivity, and therefore, political issues were differently politicized. The issues of security, for instance, could be more preferential than those of human rights. As a result, the Council could have more or less liberal irregular migration policies than some member states.
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In the migration and asylum, the member states’ representatives at the Council pushed for policies similar to those of their government to reduce adaptation costs in implementing policy change. In such a scenario, according to Börzel, there emerged a struggle in any move to introduce a policy change (Börzel, 2002). Migration scholars, therefore, conclude that national policymakers in the Council were influenced by the state’s preferences and tended to resist or initiate change relative to the existing domestic policies (Kaunert and Léonard, 2012; Zaun, 2016; Bonjour et al., 2018).
A similar process took place within the EU institutions, where the policy-making involved different actors with diverse interests, shifting preferences (Kaunert et al., 2013). The shifting of preference formation occurred through problem framing. A way of understanding policy formulation at the EU level, according to Daviter, was through the analysis of how the framing of policy problems contributes to policy change. In other words, the shift in policy depended on how migration and asylum issues were constructed, categorized and prioritized as policy problems (Daviter, 2018; 2015). This is why Kohler-Koch explains the need for researchers to examine how shifting problem framings reinforce each other to either promote or resist a policy change within a dynamic political environment that involves supranational actors (Kohler-Koch et al., 2017).
Throughout the 1990s, there was a minimal migration policy change. The EU’s institutional framework had the member states having the maximum influence in the decision-making process. Other supranational institutions were granted almost insignificant decision-making power. Researchers view the member states to be in a continuous process to keep off irregular migrants by developing restrictive asylum and migration policies (Kaunert and Léonard, 2012;
Bonjour et al., 2018). In this regard, scholars commonly viewed EU integration as cooperation aimed at closing down the external borders to build a ‘fortress Europe.’
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In the 2000s, there was minimal EU policy change. The treaty of Amsterdam was important in the European communitarization process. It gave supranational institutions minimal competence in migration and asylum. Yet, these areas largely remained intergovernmental. In 2009, through the Lisbon treaty, the distribution of power within the EU institutions changed.
Although the Council still retained the highest decision-making power, the parliament gained influence in the legislative process. The court also got involved in a broader range of affairs, including partial judicial control over migration and asylum issues. The Commission remained with the role of proposing legislation and overseeing the implementation. Considering that the member states had partially surrendered power to supranational institutions, this redistribution of power within the EU institutions presented a thesis against policy venue shopping. Scholars argue that governments of the member states lacked the overwhelming dominance at the EU level, and hence policy venue shopping did not perfectly apply (Kaunert and Léonard, 2012;
Block and Bonjour, 2013).
The critique of policy venue shopping, nevertheless, did not apply to all the EU policy areas.
In migration and asylum, the Council still dominated power leaving the other EU institutions with limited jurisdiction. Scholars have thus not given much attention to the role of supranational institutions, namely the Commission, due to its perceived insignificant role in the decision-making process. Instead, in the case of migration and asylum, the Council was described as more restrictive while the Parliament and Court were seen to be more liberal. The restrictive nature of the Council was derived from the member states where the interests of interior ministers were to restrict irregular migration (Bonjour et al., 2018).