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Complete literature summary EU Migration law
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Complete summary of all the literature for the course EU Migration Law: Forced and Unforced Migration to the EU.
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EU Migration Law: forced and unforced migration - Literature summary● TCN/tcn = third-country national
● MS = Member State/Member States
Seminar 1 - Wednesday 8 February 2023
Important legislation:
- Schengen Borders Code (Regulation (EU) 2016/399)
Chapter 1 - Introduction (Boeles a.o.)
European migration law focuses on the immigration regime in Europe, which encompasses rules on
(1) immigration from third countries into Europe and (2) intra-European migration.
Migration = the international movement of persons.
- In principle, anyone who can afford the transport or who is prepared to walk long distances
has the possibility of moving around the world. However, the liberty to do so is restricted by
the fact that the world is divided into states (with borders, and nationals).
- Migration law is often referred to as the law on aliens or the law on (free) movement.
Forced migration = the movement of persons compelled to flee a bad situation in their home country
and seek protection in a new country.
Voluntary migration:
- Main purposes: economic activity, knowledge-related activity, the receipt of (medical)
services, and family reunion.
- Sometimes referred to as ‘legal migration’ as opposed to asylum, wrongly implying that
forced migration would be illegal.
A State:
- a defined territory, a permanent population, an effective government, and the capacity to
conduct relations with other states (art. 1 Montevideo Convention). + sovereignty and
independence.
- A state is a state in relation to another state recognizing it as such. A state is
characterized by a defined territory, a permanent population, a government, and the
capacity to conduct international relations with other states.
Globalization has gradually changed states into regional entities functioning within an interdependent
world. State, civil society, and market are inextricably intertwined and all three are drawn further and
further by the very process of transnationalization into a ‘structured field of action’.
→ a fluid pattern of fragmentation and integration deriving from the deepening interconnections
between world polity, world economy, and global society.
- Migration law about the right of sovereign states to control entry and residence of non-
nationals regarding their territories.
States have exclusive jurisdiction over their own territory.
- Territorial jurisdiction can also be exerted on water and air. → sea zones adjacent to a state’s
coast are recognized, extending the exercise of sovereign control to parts of the sea
(UNCLOS) + every state has complete and exclusive sovereignty over the airspace above its
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, territory. This zone includes the land areas and territorial waters adjacent thereto under the
sovereignty of such state (Chicago Convention on International Civil Aviation).
- Art. 2 Schengen Borders Code → ‘external borders’ are the land and sea borders and their
airports, river ports, seaports, and lake ports (are not internal borders!).
- ECtHR Amuur v. France:
The international zone does not have extraterritorial status. Even though the
applicants were not in France within the meaning of the applicable French legislation,
holding them in the international zone of Paris-Orly airport made them subject to
French jurisdiction.
Nationality (ICJ Nottebohm): nationality is a legal bond having as its basis a social fact of
attachment, a genuine connection of existence, interests, and sentiments, together with the existence
of reciprocal rights and duties. It may be said to constitute the juridical expression of the fact that the
individual upon whom it is conferred it is in fact more closely connected with the population of the
State conferring nationality than with any other State.
- In conferring nationality, states normally operate on two underlying principles:
1. Jus soli → an inherently territorial means of conferring nationality.
● The fact of birth within a specific territory, regardless of the parents’
nationality, determines the nationality of the newborn.
● Employing the jus soli-principle can lead to the conferral of nationality to
persons without a solid bond or genuine link with the state of which they
acquire a nationality. Therefore, this principle rarely operates in an
unmodified form.
2. Jus sanguinis → newborns automatically acquire the nationality of their parents,
regardless of the territory in which they are born.
● Descendants of immigrants will not be able to acquire the nationality of the
country with which they may have the closest bond.
● Children of parents with different nationalities will acquire multiple
nationalities at birth.
→ All European countries have some mixture of jus sanguinis and jus soli, with specific provisions
on acquiring nationality for second and later-generation immigrants.
States commonly provide for the possibility of obtaining nationality by naturalization.
- Naturalization = a process in which a non-national, by fulfilling a few conditions, may apply
for another nationality.
Citizenship = the possibility for an individual to politically participate in the life of the community.
- European Union Law → the concept of ‘citizen of the Union’ has emerged as a primary
source of the right to move and reside freely within the territory of the Member States.
Citizenship of the Union does not replace national citizenship but is supplementary to national
citizenship and conditional upon holding the nationality of a Member State (art. 20 Treaty on
the Functioning of the EU(TFEU)).
Nationality comes with rights:
- Diplomatic protection (ICJ Nottebohm): the right of a state, derived from customary
international law, to intervene on behalf of its own nationals if their rights are violated by
another state, in order to obtain redress.
- The right of individuals not to be expelled from the country of nationality.
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, - The right to enter one’s own country.
→ The legal position of persons without a nationality (stateless persons) is precarious, since they may
not be able to claim a right of residence in any country in the world, may not be able to invoke the
protection of a state, and do not have citizenship rights.
International treaties on statelessness generally cover two issues:
1. the protection of stateless persons
2. the avoidance of statelessness
● Primary international instrument aimed at preventing statelessness → 1961 Convention on
the Reduction of Statelessness: obliges contracting states to grant their nationalities to
persons born in their territories who would otherwise be stateless; and not to deprive a person
of his nationality if such deprivation would render him stateless.
Discrimination = an unjustified distinction between comparable cases.
- A distinction is deemed to be justified if it serves a legitimate purpose in an adequate and
proportionate manner.
- Immigration control of non-nationals is a legitimate aim according to the leading
legal perception. The ECtHR has repeatedly accepted that policies of immigration
control can serve the legitimate purposes of the prevention of disorder, the protection
of rights and freedoms of others, or the economic well-being of the country.
- States are not allowed to distinguish between national and non-nationals if
the distinction does not adequately and proportionately serve the purpose of
immigration control.
- CJEU Vatsouras and Koupatantze: the prohibition of discrimination on
grounds of nationality concerns situations falling within the scope of EU law
in which a national of one Member State suffers discriminatory treatment in
relation to nationals of another Member State, solely based on his nationality.
→ this prohibition is not intended to apply to cases of a possible difference in
treatment between nationals of Member States and nationals of non-member
countries.
- Third-country nationals have a right not to be discriminated against
on the sole ground of nationality.
Legal spheres where relevant and binding rules on Migration Law can be found:
1. the national legislation of European states
2. EU legislation on the movement of EU citizens and the movement of third-country nationals
3. treaties concluded within the Council of Europe, like the European Convention for the
Protection of Human Rights and Fundamental Freedoms (ECHR)
4. treaties concluded within the framework of the UN, like the Geneva Convention relating to
the Status of Refugees (Refugee Convention), the International Covenant of Civil and
Political Rights (ICCPR), the Convention against Torture (CAT), and the Convention on the
Rights of the Child (CRC)
5. bilateral and multilateral treaties concluded between EU Member States and third states
Monist system = national law must yield to international law in the case of conflicting provisions.
Dualist system = international law must first be incorporated into national law before the courts may
take it into account.
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, Under EU law, a substantially new relationship between treaty law and national law of States Parties
has been established. Because the EU has its own legal order, which became an integral part of the
legal systems of the Member States, and which their courts are bound to apply.
- EU law is binding upon all Member States.
EU law vs. law of the ECHR
● EU law has its own legal order. It is binding on all Member States and prevails over national
legislation. Individuals can invoke EU law before national courts + national courts must apply
EU law. National courts can ask preliminary questions to the CJEU when doubting the
interpretation of EU law.
○ Individuals cannot address the CJEU.
● ECHR is a treaty, binding on the contracting states under relevant rules of international law.
Individuals within the jurisdiction of contracting states have the right to complain to the
ECtHR about alleged violations by the state of the rights of the ECHR.
○ A complaint can only be lodged after available local remedies have been exhausted. It
can be addressed in individual cases when national remedies fail to protect human
rights.
○ The ECHR is ratified by all EU Member States.
Many European countries have become countries of immigration, a fact that some governments have
indeed found hard to accept. Not only do governments sometimes perceive immigration as a potential
threat to national economies and social security systems, but the increased ethnic and religious
diversity of communities is also seen as potentially undermining social cohesion.
- European governments are very aware that their national economies are in continuous need of
immigrant labor from outside Europe, which is not least due to the aging population in
virtually all European countries. There is wide agreement that migration policies should in
part be based on humanitarian considerations, which has led to the invention of various forms
of residence permits apart from refugee status.
The most striking feature of European migration law is the regime on the free movement of persons
under EU law (1957 Treaty on the European Economic Community (EEC)).
- Has turned out to be a key pillar of the European integration process.
EU law is not the sole source of migration law in Europe:
1. Migration law in Europe is not fully harmonized.
● Not only do some areas of migration law remain uncovered by EU law, but much of
the adopted measures at the EU level also leave discretionary powers to the Member
States.
○ Result = the domestic immigration regimes of the Member States remain
divergent.
2. Treaties concluded outside the framework of the EU have a notable bearing on the legal
position of immigrants in Europe.
Art. 21 (1) TFEU: a citizen of a Member State has, to a great extent, the right to move and reside
freely within the territory of the Member States.
- an EU citizen has a certain legal relationship with other Member States deriving from his
nationality.
Intergovernmental cooperation between five pioneering EC Member States
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