Legal Regulation and Management of Migration in the European Union (Part 1)

Published by Olga Gulina at 14/12/2017

Syrian and Iraq refugees arrive at Skala Sykamias Lesvos in Greece. Source: Wikipedia

The current EU legislation on migration and asylum has been set out and interpreted in a number of legal documents. The existence of multiple directives, accords, multilateral agreements and domestic legal acts of EU member states creates the illusion of a robust, well-functioning migration management system. However, the influx of humanitarian immigrants in 2014-2016 showed that the apparent strength and stability of migration management policies and practices within the 28 EU Member States are indeed illusory, and the available legal instruments and their underlying mechanisms fail by a long shot to meet the Member States’ needs. The legal framework for migration management in the European Union today can be roughly described as consisting of the following three blocks:

Legal regulation of immigration;
Legal regulation of the free movement of goods, services and human capital within the Schengen area; and
Legal mechanisms for managing humanitarian migration.

Part 1. Immigration and Movement across Borders

Legal Regulation of Immigration

In 1999, the European Union started drafting a shared migration strategy for Member States to support uniform visa procedures and standardise migration rules¹A common immigration policy for Europe, at http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=URISERV:jl0001. It is important to note that unification of asylum procedures was addressed as a separate issue in the EU Policy Plan on Asylum²Policy Plan on Asylum. Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee, and the Committee of the Regions of 17 June 2008 – Policy Plan on Asylum: An integrated approach to protection across the EU. COM (2008) 360 final. Not published in the Official Journal.. According to the Treaty on the Functioning of the European Union³Articles 79 and 80 of the Treaty on the Functioning of the European Union (TFEU), at http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:12012E/TXT, this common immigration policy covers the following areas:

Unification and standardisation of rules for entry in the EU as well as in any of its Member States;
Requirements for immigrants’ legal residence in any of the Member States;
Procedures for combating illegal employment and trafficking in persons (establishing the minimum standard which Member States can expand by adding specific types of offences and sanctions);
Standardisation of readmission agreements;
Standardisation of integration-promoting initiatives and activities (establishing the minimum standard which Member States can expand by adding eligibility requirements);

At present, two mechanisms of migration legalisation are available in the European Union.

Regulations and Decision are legal acts of the European Union which, following their adoption by the European Parliament, come into effect directly in Member States and do not require domestic legislators’ decisions for their enforcement. However, at the time of the TFEU’s signing, certain Member States made reservations concerning EU regulations and decisions. Exceptions include Denmark where EU-wide rules relating to immigration, visa and asylum policies do not apply. The parliaments of Ireland and the United Kingdom can choose whether or not to adopt EU-wide rules on immigration, visa and asylum. Regulations with direct applicability in all EU countries include those concerning entry and residence of high-skilled foreign workers, or the EU Blue Card⁴Council adopts the EU Blue Card: more advantages for high-skilled foreign workers. Brussels, 25 May 2009 10266/09. Presse 151..

Directives are EU legal acts which require incorporation into member states’ domestic (national) law. The European Parliament sets the date by which Member States must transpose a directive into national law, but the forms, methods and reservations relevant to how the directive shall be applied in a particular country are determined by its national parliament. For the most part, EU migration policies are implemented in Member States via directives.

As a general rule, Member States exercise exclusive competence in areas such as the adoption of final decisions on migration applications; the setting of guidelines, procedures and special requirements for granting long-term residence permits, including the right to stay for more than three months; the setting of guidelines, procedures and special requirements for granting the right to work in a Member State, and others.

Legal Regulation of Freedom of Movement

On 14 June 1985, five states—Belgium, the Netherlands, Luxembourg, France and Germany—signed the Schengen Agreement⁵http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A32016R0399, whose future continues to stir heated debates on the European continent. Today, the Schengen Area of free movement of people, goods and services covers 26 states, including 22 EU Member States and four members of the European Free Trade Association (EFTA)⁶Die Europäische Freihandelsassoziation, http://www.efta.int/—Liechtenstein, Switzerland, Norway and Ireland.

Interestingly, six EU Member States—Ireland, Britain, Romania, Bulgaria, Croatia and Cyprus—have stayed outside the Schengen Area, while three others—Monaco (together with France), San Marino and the Vatican (together with Italy)—have opened their borders for free movement of goods, services and persons de jure without signing the Schengen Agreement.

To ensure security and improve safeguards for free movement within the Schengen Area, the Schengen Information System (SIS II) was created to collect and store biometric data of persons crossing the EU borders and to support exchange of such information across the EU and with associated countries. SIS II stores information on visa applicants to Member States (VIS), and a bank of visa applicants’ fingerprints (EURODAC). Interestingly, the initial launch of the system scheduled for 1 January 2013 did not take place, because Member States were reluctant to adopt a uniform approach to biometric data provision, collection and storage.

Today, 80% of the Schengen Area’s external borders are maritime and only 20% are on land⁷Europa ohne Grenzen, https://ec.europa.eu/home-affairs/sites/homeaffairs/files/e-library/docs/schengen_brochure/schengen_brochure_dr3111126_de.pdf; free movement of goods, services and people is allowed within these borders. However, countries signatory to the Schengen Agreement may impose restrictions on the free movement of goods, services and people across borders by reintroducing border control at internal borders in three instances:

for the duration of a foreseeable event requiring enhanced security in a Member State. Articles 25-27 of the Schengen Code allow for reintroduction of border control at internal borders for up to 30 days, with a possibility of extension for up to six months.

In September 2017, President Jean-Claude Juncker proposed migration management reforms modifying the provisions of articles 25-27 of the Schengen Border Code. The current time limits for reintroducing border controls at Member States’ internal borders are expected to be prolonged from six months to one year and/or no more than three times and for a period not exceeding two years⁸https://ec.europa.eu/home-affairs/sites/homeaffairs/files/what-we-do/policies/european-agenda-migration/20170927_recommendation_implementation_provisions_schengen_borders_code_temporary_reintroduction_border_control_en.pdf.

In cases requiring immediate action. Article 28 of the Schengen Border Code allows Member States to reintroduce border control at internal borders in cases requiring immediate action for a limited period of up to ten days without prior notification of the European Commission. However, the law requires that the European Commission and other Member States be notified without delay of the reintroduced measures, such as passport and border control. Reintroduction of border control at internal borders under Article 28 of the Schengen Border Code is allowed for up to two months.
Article 29 permits reintroduction of border control “in exceptional circumstances where the overall functioning of the area without internal border control is put at risk.” This is casus extraordinarius in which reintroduction of border control is a last resort measure to protect the common interests of Member States when all other measures, in particular those referred to in Article 21 of the Schengen Border Code, prove ineffective, and the threat persists.

Before November 2017, temporary reintroduction of border control at internal borders pursuant to Articles 25-29 of the Schengen Border Code was applied by Member States 92 times, of which 56 fell in the period between 2014 and 2017 and were associated with Member States’ inability to control migration influx to the European continent⁹https://ec.europa.eu/home-affairs/sites/homeaffairs/files/what-we-do/policies/borders-and-visas/schengen/reintroduction-border-control/docs/ms_notifications_-_reintroduction_of_border_control_en.pdf. Before 2014, Member States reintroduced passport and border control at internal borders for periods up to 14 days only in cases such as:

large-scale international events, e.g.: the Nuclear Security Summit in the Netherlands on 14 to 28 March 2014; the World Economic Forum in Austria on 7 to 9 June 2011; NATO Foreign Ministers’ meeting in Tallinn, Estonia, on 22 to 23 April 2010, and some others;
visits of high-ranking politicians and/or other persons requiring increased security measures, e.g. Pope Benedict XVI visit to Malta on 5 to 18 April 2010; the US President’s visit to Estonia on 31 August to 3 September 2014; MC Hells Angels’ visit to Iceland, etc.;
terrorist attacks. The bomb explosion in Oslo and the shooting on the island of Utoya by Anders Breivik caused Sweden and Norway to reintroduce border control on 22 to 25 July 2011.

Currently, the following Member States have reintroduced border and passport control at internal borders pursuant to Articles 25-26 of the Schengen Border Code:

France at all internal borders due to continuing terrorist threats (from 1 November 2017 to 30 April 2018¹⁰https://www.legifrance.gouv.fr/affichTexte.do;jsessionid=F2A4A5ADFCD2EEDB3EB247225D28DD78.tplgfr40s_1?cidTexte=JORFTEXT000035932811&dateTexte=&oldAction=rechJO&categorieLien=id&idJO=JORFCONT000035932808);
Austria at its land border with Hungary and Slovenia to control illegal border crossing (from 12 November 2017 to 12 May 2018);
Germany at its land border with Austria and flight connections with Greece (from November 12, 2017 to May 12, 2018);
Denmark at its internal border with Germany due to uncontrolled movement of people seen as a security threat (from 12 November 2017 to 12 May 2018);
Sweden at selected harbours and regions to control illegal border crossing (from 12 November 2017 to 12 May 2018);
Norway at ferry connections with Denmark, Germany and Sweden (from 12 November 2017 to 12 May 2018).

Additionally, Sweden announced reintroduction of border control at its border with Norway at Gothenburg Landvetter Airport during the Social Summit for Fair Jobs and Growth on 12 to 19 November 2017 pursuant to Article 28 of the Schengen Border Code. It seems obvious that Schengen Area regulations are likely to undergo serious changes in the near future.[:]