EU Human Mobility: Immigration, Asylum & Schengen Policies Overview - Prof. González, Apuntes de Derecho

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TOPIC 1: INTRODUCTION The concepts of migration, citizenship and international protection • Migration • Citizenship or nationality • International protection ASYLUM & MIGRATION TRENDS IN THE EU • The problems of official data: Source: Eurostat, Frontex and states Access to recent data Concepts: e.g. European citizens and third-country nationals legal & illegal migration (not migrants!) illegal border crossings & overstayers  Ways to measure Apart from methodological problems, the political use or misuse of data ILLEGAL BORDER CROSSINGS IN THE EU * http://frontex.europa.eu/trends-and-routes/migratory-routes-map/ 2008 2009 2010 2011 2012 2013 2014 2015 2016 0 200 400 600 800 1000 1200 1400 225 264 259 309 335 431 627 1322 1236 In 1000 applicants ASYLUM APPLICANTS IN THE EU- 28 ASYLUM APPLICATIONS IN EU MEMBER STATES (2016) BE DE EL ES FR IT LT LU NL PL PT RO Nu m. 14250 722.265 51.110 15.570 75.990 121.185 410 2.065 19.285 9.780 710 1855 % wit hin EU 1.2 60 1.3 6.3 10.1 0.0 0.2 1.6 0.8 0.1 0.2 THE POWERS OF THE EU TOWARDS HUMAN MOBILITY: HISTORICAL APPROACH (II) Powers towards immigration of third-country nationals: reactive rather than proactive policies • Schengen Agreement (1985) and Schengen Implemeting Convention (1990): intergovernmental system to supress internal border controls and harmonize external border controls and short-time Schengen visas • Dublin Convention (1990): intergovernmental system to avoid asylum shopping • Maastricht Agreement (TUE, 1992): immigration & asylum as matters of common interest in Justice and Home Affairs (Tit. VI) • Treaty of Amsterdam (1998): immigration & asylum within the first EC pillar; incorporation of Schengen into the TEU • Treaty of Lissabon (2009): TEU & Treaty on the Functioning of the EU (TFUE): migration & asylum as EU policies within the Area of Freedom, Justice and Security THE POWERS OF THE EU TOWARDS HUMAN MOBILITY: CURRENT SITUATION • Art. 3.2 TUE • Art. 6. TUE • European citizenship (arts. 20 and 21 TFUE) • Powers regarding immigration & international protection (arts. 67.1, 77, 78 and 79 TFUE) • Shared competences (art. 2.2 and 4 TFUE) • Ordinary legislative procedure (art. 294 TFUE) Art. 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. Art. 67 TFUE 1. The Union shall constitute an area of freedom, security and justice with respect for fundamental rights and the different legal systems and traditions of the Member 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. Shared competences (art. 4.2 j and 2.2 TFUE) Art. 4. 2. Shared competence between the Union and the Member States applies in the following principal areas: (j) area of freedom, security and justice; Art. 2.2: When the Treaties confer on the Union a competence shared with the Member States in a specific area, the Union and the Member States may legislate and adopt legally binding acts in that area. The Member States shall exercise their competence to the extent that the Union has not exercised its competence. The Member States shall again exercise their competence to the extent that the Union has decided to cease exercising its competence. Art. 79.1 2 TFUE (Immigration) • 1. The Union shall develop a common immigration policy aimed at ensuring, at all stages, the efficient management of migration flows, fair treatment of third-country nationals residing legally in Member States, and the prevention of, and enhanced measures to combat illegal immigration and trafficking in human beings. • 2. For the purposes of paragraph 1, the European Parliament and the Council, acting in accordance with the ordinary legislative procedure, shall adopt measures in the following areas: • (a) the conditions of entry and residence, and standards on the issue by Member States of long- term visas and residence permits, including those for the purpose of family reunification; • (b) the definition of the rights of third-country nationals residing legally in a Member State, including the conditions governing freedom of movement and of residence in other Member States; • (c) illegal immigration and unauthorised residence, including removal and repatriation of persons residing without authorisation; • (d) combating trafficking in persons, in particular women and children. Art. 78.2, 3 TFUE (Asylum) c) a common system of temporary protection for displaced persons in the event of a massive inflow; (d) common procedures for the granting and withdrawing of uniform asylum or subsidiary protection status; (e) criteria and mechanisms for determining which Member State is responsible for considering an application for asylum or subsidiary protection; (f) standards concerning the conditions for the reception of applicants for asylum or subsidiary protection; (g) partnership and cooperation with third countries for the purpose of managing inflows of people applying for asylum or subsidiary or temporary protection. 3. In the event of one or more Member States being confronted by an emergency situation characterised by a sudden inflow of nationals of third countries, the Council, on a proposal from the Commission, may adopt provisional measures for the benefit of the Member State(s) concerned. It shall act after consulting the European Parliament. The Schengen Area: internal and external borders Schengen Agreement (1985) and Schengen Implemeting Convention (1990): 5 countries decide to abolish gradually internal border controls and have common rules for external border controls Enlargement of the Schengen Area Schengen Area is not equivalent to the territory of the EU: Not in Schengen Area: UK, IRE, RO, BULG, CRO In Schengen Area: NO, CH, ICE, LIECH Schengen aquis within EU Law Art. 77.1 TFUE The Union shall develop a policy with a view to: (a) ensuring the absence of any controls on persons, whatever their nationality, when crossing internal borders; b) carrying out checks on persons and efficient monitoring of the crossing of external borders; (c) the gradual introduction of an integrated management system for external borders. Schengen Borders Code Regulation (EU) 2016/399 of the European Parliament and of the Council -general application, binding in its entirety and directly applicable in the MS -structure: subject matter (art. 1), definitions (art. 2), scope (art. 3) Schengen Borders Code: external borders Entry conditions of third country nationals (art. 6) Border checks on persons (art. 8): minimum and thorough checks Relaxation of border checks (art. 9) Border guards Operational cooperation: Frontex Measures in case of serious deficiencies relating to external border control (art. 21): recommendations of the Commission & possible reintroduction of internal border control by MS (art. 29) Schengen Borders Code: internal borders • Absence of any border control as general rule (art. 22) • Checks within the territory (art. 23): not equivalent effect to border checks • Temporary reintroduction of internal border controls:  art. 25: serious threat to public policy or internal security in a MS. Up to 30 days; renewable periods of up to 30 days; maximum 6 months or 2 years: criteria and procedure: MS’s decision Art. 28: cases requiring immediate action: up to 10 days; renewable periods of up-to 20 days; maximum of 2 months: MS’s decision Art. 29: exceptional circumstances at external borders put the overall functioning of the system at risk; renewable periods of up to 6 months (3 times max): criteria and procedure: MS’s decision but Council recommendations (11.11.2016; 7.2.2017; 11.5.2017)