MIGRATION LAW
LECTURE 1 : HISTORY, INSTITUTIONAL FRAMEWORK & LEGAL MIGRATION
INTRODUCTION
Why a set of sessions devoted to the EU dimension of migration & asylum law?
Who is involved in this course?
What will we do? (Toledo)
How will the course be taught and assessed?
Note : reading materials and questions to you as regards these reading materials are all examples of exam
questions (ANALYTICAL QUESTIONS!!!!)
Analytical questions : read them before you read the document, we are supposed to find answers to this
questions in the documents. She wants us to engage with the answers, wants us to think about them →
the answers will be discussed in class
Detailed outline : the structure of the course as she will teach it to us. It is the table of contents with all the
key elements
Essay = legal analysis + exam : we will be shown official documents & have to answer analytical questions
THE EVOLUTION OF EU COMPETENCES IN THE FIELD OF MIGRATION & ASYLUM
A. HISTORICAL EVOLUTION OF EU COMPETENCES
The motto of the European Union : ‘United in diversity’
Not only how EU citizens & EU MS organise their relationships, also the way we approach non EU
citizens = third country nationals
Conditions for EU citizenship :
= derivative, you get the status of an EU citizen, depending on whether you get the status of a
national of a MS
= if you don’t have the status of a national of a MS, you’re a third country national
We need to live in the EU with different views on how the MS approach asylum & migration
In the early years of the EU, there wasn’t much – if anything at all – on non EU citizens
In the early versions of the Treaties there were no competences allowing the EU to regulate the
status of non EU citizens
In the Treaty of Rome = there was nothing
In the Single European Act = there was nothing either
1
,We only started to see competences with the ability of the EU to regulate the treatment of third
country nationals as from 1992 in the Treaty of Maastricht → we see appearing, the very first
competences allowing the MS jointly to regulate migration and asylum
The Treaty of Maastricht was very special because it amended the Treaty of Rome and it also
created another Treaty → the Treaty on European Union
This matters because with the Treaty of Maastricht, we saw that the European Union will be using
2 different regulatory techniques
- The supranational method / integration → requires the existence of supranational institutions
who make decisions largely independently from the will of individual MS (= what the EU mostly
does – f.e. when it adopts directives or regulations with the ordinary legislative procedure)
- The intergovernmental method / governance → each single participating state comes to the
table to negotiate a new text & you need everyone to agree before you can adopt the text – f.e.
international agreement
The Treaty of Maastricht starts creating new competences in the field of asylum & migration law
These new competences will be governed by the intergovernmental method, not by the
supranational method yet
The CJEU will have no jurisdiction in this field
The European Parliament will have no authority in this field
The European Commission will be absent
Most decisions will be made by the Council = the ministers of the MS (usually ministers of interior
affairs at national level) – they will decide largely by unanimity
2
,Why do the MS on the one hand agree to give competence to the EU to regulate migration & asylum
jointly, but do they do so only, on the other hand, by accepting an intergovernmental method?
At EU level, on the one hand, you have the idea of free movement (= very old idea that the citizens
of the EU should be able to go wherever they want to go), but in order to be able to organise free
movement of the EU citizens, you have to do something about third country nationals as well
The more you want a free movement area for EU citizens, the more you need to think about the
treatment of third country nationals at the same EU level
On the other hand it remains highly (political) sensitive for the MS to regulate the status of third
country nationals
The Schengen Area was created between 1986 & 1992
= idea that MS stop checking people crossing internal borders (= borders between MS of the EU)
At the same time the Schengen Area requires to consolidate the external borders, so we lift
controls between participating states, but we jointly try to have a coordinated approach to external
borders
The Schengen Area was created by the Schengen Agreement, but it was not EU law (it was a purely
international agreement between a number of MS of the EU, not all of them)
Idea is to facilitate the free movement of both EU & third country nationals, but to do this on the
side through international law by collaboration between the States
= the logic is quite similar to the Treaty of Maastricht
1997 : the Treaty of Amsterdam → modifies the TEEC & TEU
Matters a lot because this is when the EU competences on migration & asylum are subject to the
supranational method
After this there was a transition period of 5y
→ since 2002 we have fully fledged EU competences on migration & asylum with the traditional
supranational EU method applying to them
= very young for a common EU policy → highly imperfect & messy
= a highly sensitive matter
2007 : Treaty of Lisbon = improved decision making in this field (made the Parliament more present
+ reduced the importance of unanimity voting in the Council)
1. THE ESTABLISHMENT OF AN INTERNAL MARKET WITHIN THE EEC
Internal market as ‘an area without internal frontiers [Single European Act] in which the free
movement of goods, persons, services and capital is ensured in accordance with the
provisions of the Treaties’ (Art.26(2) TFEU)
= idea was to try to abolish border controls, but there were no competences to do so under
the EU Treaties yet
3
,→ for EU citizens (you were checked – but you only had to prove that you were an EU citizen
by showing your ID)
o Family members or posted workers may be TCN (= Third Country Nationals)
o People covered by specific international agreements (eg. Turkey)
o BUT not self-standing free movement rights, eg. CJEU Vatsouras
Family members = spouse & children
Posted workers = construction workers (working for a construction company in
Poland but detached to work here in Belgium – after completing his job he needs
to go back)
ð These exceptions are possible because the TCN are attached to an EU citizen
or to a EU business = derivative right to move
Turkish nationals = mobility agreement with EU = international agreement →
allows Turkish nationals to work in EU, advanced rights for nationals from
countries with an international agreement with the EU
Questions related to migration and asylum are dealt with elsewhere, if at all…
o Schengen Agreement – (signed 1985, entered into force 1986)
o Schengen Convention (signed in 1990, implemented in March 1995)
o Dublin Convention – (signed in 1990, entered into force in 1997)
= 3 international agreements signed between the MS of the EU
Schengen Agreement & Convention : the idea was to lift internal border controls &
to coordinate external border controls among certain MS of the EU (not all of them)
= a international agreement between these States, NOT EU LAW!!!
The Dublin Convention : also international agreement, but complementary
function to Schengen → looks more specifically at people who ask for asylum to
be protected, if they obtain asylum we’ll call them refugees
The Dublin Convention organises the responsibilities of the participating States as
to which State is responsible for processing a request for asylum = related to the
Schengen Area because if you lift border controls, you need to think about who
will be in charge of processing requests for protection depending on where the
person is & where the person has entered the EU
Pure international agreements between some EU states
4
,2. THE TREATY ON EUROPEAN UNION (ALSO CALLED ‘MAASTRICHT TREATY’, SIGNED IN 1992,
ENTERED INTO FORCE IN 1993)
Big landmark : the EU starts having competences on matters of migration & asylum
Migration & asylum are part of Justice and Home Affairs – Pillar III of the EU : highly
intergovernmental → it is not about regulations, directives, or others types of EU rulings →
NO jurisdiction of CJEU, NO EP
ð decision taken by MS in the council mostly by unanimity
3. ‘COMMUNAUTARISATION’ OF THE COMPETENCES IN THE FIELD OF BORDERS / MIGRATION
/ ASYLUM WITH THE TREATY OF AMSTERDAM (SIGNED IN 1997, ENTERED INTO FORCE IN ‘99)
- Transfers part of the cooperation from the EU pillars (borders, migration and asylum)
to the EC pillar (or Pillar I) to enhance their supranational nature: Title IV “Visas,
Asylum, Immigration and Other Policies Related to Free Movement of Persons”
= communautarisation of the competences of the EU in this field → competences of
migration and asylum are moved from 3rd to 1st pillar
ð they become subject to the community method = the supranational method
ð EP will have a say, CJEU has jurisdiction, will be adopted by regulations and
directives and thus direct effect and supremacy
- Features of EU migration and asylum policy as part of Pillar I: intergovernmentalism still
present, period of transition (= after the Treaty of Ams entered into force there was a
period of transition of 5y)
5
,B. EU COMPETENCES IN THE FIELD AS THEY STAND TODAY AFTER THE TREATY OF LISBON
(SIGNED ON 13.12.2007, ENTERED INTO FORCE ON 1.12.2009)
Only when the EU has competence they can regulate the field, how do we know if the EU has
competence or not?
A competence must have been conferred
How do we know whether or not a competence has been conferred?
If it is listed, if there is a legal basis in the Treaties
1. GENERAL OBSERVATIONS
Definitions of EU migration & asylum law as part of the so-called ‘AFSJ’ – area of freedom,
security & justice :
Article 3(2) TEU
‘The Union shall offer its citizens an Area of Freedom, Security and Justice without internal
frontiers, in which the free movement of persons is ensured in conjunction with
appropriate measures with respect to external border controls, asylum, immigration and
the prevention and combating of crime.’
= it is an area without internal frontiers (cf. SEA) → no extensive border control
ð this will be used by EU citizens, but also by TCN
ð it will be used by criminals, whatever their nationality might be
AFSJ is not only about migration and asylum : also about criminal law, cooperation of civil
and commercial judges → we won’t talk about these other matters, but the idea is the
same : if no internal borders, need for common policy
Article 67 TFEU
1. The Union shall constitute an area of freedom, security and justice with respect for
fundamental rights & the different legal systems and traditions of the Member States.
ð EU migration and asylum law have to respect fundamental rights, often in cases
of this area it is about fundamental rights & freedoms
ð respect of the different legal systems and traditions of the MS is key in migration
and asylum law when making common rules → highly necessary when trying to
create a joint policy for 27 States
2. It shall ensure the absence of internal border controls for persons and shall frame a
common policy on asylum, immigration and external border control, based on
solidarity between Member States, which is fair towards third-country nationals. For
the purpose of this Title, stateless persons shall be treated as third-country nationals.
…
6
, ð Internal border controls goes with a reflection on common policies on external
aspects
ð solidarity between the MS is important because MS are not facing same
challenges : e.g. bigger amount of arrivals in Greece than in Germany → different
impact on the different MS → MS have to cooperate and alleviate their burdens
ð also need for solidarity towards TCN → it has to be fair for TCN
The European Council : defines strategic guidelines & operational planning (Art.68 TFEU)
European council is composed of heads of States + the president of European Council & the
President of the Commission → its role is to define political priorities of EU, no legislative
powers (the Council is a more technical body composed of ministers depending on the topic)
Prominent role because the matter is so highly sensitive
Classic tools for legal intervention by the EU in the field – e.g. the legislative procedures,
the role of CJEU (cfr infra)
Special Review mechanism (Art.70 TFEU) → EU will monitor regularly if MS are correctly
applying EU law and if improvement of EU law in the area is possible
Guardian of the EU Treaties = the Commission : checks if EU law is complied with – if not it
can take the case to Court, in the area of migration & asylum the Council will also be
monitoring what’s going on
Exclusions of EU interference
Art.72 TFEU, the Title …
‘…shall not affect the exercise of the responsibilities incumbent upon Member States with
regard to the maintenance of law and order and the safeguarding of internal security.’
Whatever the EU does on matters of migration & asylum, if cannot have such an effect that
it prevents the MS from protecting the maintenance of law & order and safeguarding
internal security
ð This argument is often used by MS to defend themselves when not complying with EU
law → CJEU hasn’t accepted an argument based on art 72 yet, it says that the MS
have to comply because they decided to participate in this area of law
e.g. status of refugee can be revoked if it can be established that you are a threat to public
order, this is constructed in the legal regime, so you cannot use art 73 because the
directive is binding on you
7
, Art.77(4) TFEU, the Article…
‘…shall not affect the competence of the Member States concerning the geographical
demarcation of their borders, in accordance with international law.’
ð EU migration and asylum law will not call into question how each MS has defined its
own national borders (can be very sensitive – Croatia had some border conflicts – EU
law is not meant to affect this)
Art.79(5) TFEU, the Article…
‘… shall not affect the right of Member States to determine volumes of admission of third-
country nationals coming from third countries to their territory in order to seek work,
whether employed or self-employed.
ð EU law cannot have an impact on volumes of admission, we may have EU rules that
favour a certain type of migration e.g. seasonal workers of highly skilled workers BUT
EU law cannot force a MS to adopt a certain volume (quantity) of people
ð MS are always free to decide to scale down on the number of people who are allowed
to come in
Common principle for EU intervention in matters of border checks, asylum and immigration =
principle of solidarity & fair sharing of responsibilities
Art.80 TFEU
‘The policies of the Union set out in this Chapter and their implementation shall be
governed by the principle of solidarity and fair sharing of responsibility, including its
financial implications, between the Member States. Whenever necessary, the Union acts
adopted pursuant to this Chapter shall contain appropriate measures to give effect to this
principle.’
Note that some institutional oddities of the AFSJ inherited from the former third pillar do not
apply to EU migration and asylum law
in the area of criminal law there are very specific mechanisms to allow MS to control more
what is happening in EU law, but they don’t apply to migration and asylum
2. BORDER CHECKS [MORE IN LECTURE 8]
Objectives of the EU in the field of border checks : see Art.77(1) TFEU – the objective of the EU
is to develop a policy ensuring the absence of control on persons whatever their personality
when crossing internal borders + trying to identify common ways of checking persons crossing
external borders
8
, Tools for EU intervention in the field of border control
Article 77(2) TFEU - Ordinary Legislative Procedure
= commission proposes, then there is a back & forth between the Parliament & the Council,
ideally, they come to a joint agreement
→ key point : if all goes well, decisions are taken by a simple majority in the Parliament and a
qualified majority voting in the Council
→ Because we have the supranational method – even in this highly sensitive matter – EU can
have EU legislation even if some MS disagree
Eg. Regulation 2019/1896 on the European Border and Coast Guard and repealing
Regulations (EU) No 1052/2013 and (EU) 2016/1624
Article 77(3) TFEU - Special Legislative Procedure
= the Council decides by qualified majority voting
= procedure that can be used to facilitate the exercise of the rights of EU citizens
3. ASYLUM, SUBSIDIARY PROTECTION AND TEMPORARY PROTECTION [MORE IN LECTURE 9]
Objectives of the EU in the field of asylum, subsidiary protection and temporary protection :
see Art.78(1) TFEU → organise a special regime for those in need of protection, who is in need
of protection & what type of protection will we offer at EU level
Tools for EU in the field of asylum, subsidiary protection and temporary protection :
Article 78(2) TFEU - Ordinary Legislative procedure = low vote requirement
Eg. Regulation (EU) 2021/2303 on the European Union Agency for Asylum and repealing
Regulation (EU) No 439/2010
Article 78(3) TFEU - Special Legislative procedure → has been used in very sensitive
circumstances in recent years because it is a legal basis that allows to adopt EU legislation in
order to address a situation of emergency characterised by a sudden inflow of TCN
Parliament is only consulted, decision is made by the Council (with QVM)
e.g. Syria 2015
4. IMMIGRATION POLICY [MORE IN LECTURE 10]
Objectives of the EU for a common immigration policy : see Art.79(1) TFEU
Tools for a common immigration policy :
Article 79(2) TFEU - Ordinary Legislative procedure
9
