EU Asylum and Immigration Law and Policy December 2013 Professor Adam Cygan

From Maastrich to Lisbon Treaty of Maastricht: EU competences in the field of immigration, asylum, visas, cecks on borders (inter- govermental cooperation third pillar) Treaty of Amsterdam: communitarization of the competences in the field. TFEU: articles (Title V, Chapter 2: P olicies on border checks, asylum and immigration)

EU immigration policy: 3 main fields (A) EU general normative framework: rules concerning the legal entry and residence of citizens of third States in the territories of EU Member States, their rights and their status (B) EU normative framework concerning the fight against the illegal immigration (C) EU normative framework concerning the international protection

(A) Free entry and residence of citizens of third States (1) Purpose: the free movement of Union citizens could not be reached keeping internal border controls in order to distinguish between citizens of the EU and non-EU nationals Consequences: the remouval of internal borders required a strengthened management of the Union’s external borders as well as common rules concerning the controls at the EU external borders

Free entry and residence of citizens of third States (2) States’ reluctance to give the EC the power to establish requirements and procedures to enter into their territories for third States’ nationals Conclusion of Schengen Agreement (1985) and its implementing Convention (1990) Since 1995: abolition of controls at the internal borders of the signatory States and creation of a single external border where immigration checks were carried out in accordance with identical procedures and common rules Treaty of Amsterdam: the Schengen Agreement, its implementing Convention and acts adopted on the basis of them incorporated into the EU legal order transformed in decisions, directives, and regulations

Free entry and residence of citizens of third States (3) Regulation 562/2006 establishing a Code containing rules governing the movement of persons across borders (Schengen Borders Code) Regulation 2007/2004 estalishing Frontex, an EU Agency empowered to monitor the EU external borders

Schengen Borders Code (1) Regulation 562/2006 lays down the entry conditions for third-country nationals for stays not exceeding three months Conditions: (a) to possess a valid travel document or documents authorising them to cross the border; (b) to possess a valid visa if required pursuant to regulation 539/2001 listing the third countries whose nationals must be in possession of visas

(c) to justify the purpose of the intended stay (d) to have sufficient means of subsistence, both for the duration of the intended stay and for the return to the country of origin; (e) not to be persons for whom an alert has been issued in the “Sistema Informativo Shengen” for refusing entry (See case C-503/03) or, more generally, not to be considered a threat to internal security, public health or international relations of any of the Member States Schengen Borders Code (2)

Schengen Borders Code (3) Individuals who do not fulfil all the entry conditions are not allowed to entry. Persons refused entry will have the right to appeal BUT the lodging of such an appeal does not have suspensive effect on the decision to refuse entry.

Directive 2003/86/EC on the right to family reunification of third-country nationals (1) Adopted on the basis of art. 63 (3) EC Treaty (now art. 79 (3) TFEU) providing the EU’s power to adopt acts defining the rights of third- country nationals residing legally in a Member State The directive determines the conditions for the exercise of the right to family reunification of third country nationals (sponsors) residing lawfully in the territory of the Member States. Art. 3: the directive applies where the sponsor: - is holding a residence permit issued by a Member State of one year or more - has reasonable prospects of obtaining the right of permanent residence

Directive 2003/86/EC (2) Art. 7: Member States may require the sponsor to provide evidence that he has: - an accommodation regarded as normal for his family - a sickness insurance for himself and the members of his family; - stable and regular resources which are sufficient to maintain himself and the members of his family, without recourse to the social assistance system of the Member State concerned Art. 8: Member States may require that the sponsor have resided lawfully in their territory for a period of two years (o less) before applying for the family reunification See Chakroun case (March 2010)

Directive 2003/109/EC concerning the status of third-country nationals who are long-term residents (1) It provides for a special status of third-country nationals who have legally and continuously resided in the territory of one member State for more than 5 years Conditions for acquiring long-term resident status: - providing evidence that they have, for themselves and for their family members, stable and regular resources which are sufficient to maintain himself and his family without recourse to the social assistance system of the Member State of residence - having a sickness insurance

Directive 2003/109/EC (2) Long-term resident permit is valid for 5 years and renewable on expiry. Art. 11: long-term residents enjoy equal treatment with nationals as regards: - access to employment and self-employed activities - education and vocational training, including study grants - recognition of professional diplomas, certificates and other qualifications - social security, social assistance and social protection - tax benefits; - free movement within the territories of the Member States.

Art. 14: long-term residents have the right to reside in the territory of Member States other than the one which granted him the long-term residence permit for a period exceeding three months in order to: - perform an economic activity; - undertake studies or vocational training; - for other purposes decided by each Member State. Directive 2003/109/EC (2/a)

(B) EU normative framework concerning the fight against the illegal immigration Art. 79 (2) (c) TFEU: The Union is competent to adopt measures relating to illegal immigration and unauthorised residence, including removal and the repatriation of persons residing without authorisation.

Directive 115/2008/EC on common standards and procedures in Member States for returning illegally staying third- country nationals (1) : General principle: any third country national staying illegally on the territory of Member States has to be repatriated. Period for volountary departure (exceptions: risk of absconding or the person is a risk for the national security) If the obligation to return has not been complied with within the period for voluntary departure Member States can take all necessary measures to enforce the return decision using, if necessary but as a last resort, coercive measures.

Member States may keep in detention a third-country national who is the subject of return procedures in order to prepare his return (if less coercive measures cannot be applied), when: (a) there is a risk of absconding or (b) the third-country national avoids or hampers the preparation of return. See El Dridi case (C ‑ 61/11 PPU, 28 April 2011) Directive 115/2008/EC on common standards and procedures in Member States for returning illegally staying third- country nationals (2)

EU re-admission agreements Purpose: to establish (on the basis of reciprocity), rapid and effective procedures for the orderly return of persons staying illegally in their respective territories. Concluded between the EU and Hong Kong, Macao, Sri Lanka, Albania, Russia, Ukraine, FYROM, Bosnia & Herzegovina, Montenegro, Serbia, Moldova.

(C) EU normative framework concerning the international protection (1) Article 78 (1) TFEU (ex Articles 63 (1) and (2), and 64 (2) TEC): “The Union shall develop a common policy on asylum, subsidiary protection and temporary protection with a view to offering appropriate status to any third-country national requiring international protection and ensuring compliance with the principle of non-refoulement. This policy must be in accordance with the Geneva Convention of 28 July 1951 and the Protocol of 31 January 1967 relating to the status of refugees, and other relevant treaties”. It codifies the concept of international protection as stemming from the directives already adopted by the EU on: 1) asylum; 2) subsidiary protection; 3) temporary protection.

International protection (2) After the Lisbon Treaty: Policy of asylum expressly qualified as common policy (before the Lisbon Treaty the Union was simply competent to adopt minimum rules in this field) Principle of non refoulement in the EU Charter of fundamental rights (art. 19 (2)): “No one may be removed, expelled or extradited to a State where there is a serious risk that he or she would be subjected to the death penalty, torture or other inhuman or degrading treatment or punishment”.

International protection (3) Art. 80 TFEU: principle of solidariety Fair sharing of responsibility among Member States in the reception and management of refugees, including its financial implications

International protection (4) Legislative strategy to realize a commom asylum policy in two phase. First phase ( ) Tampere programme ( ) and The Hague programme ( ) aimed at: - reaching a minimum level of harmonization of the laws of member States concerning the refugees - setting up normative standards to grant a wider protection than that granted by the asylum (subsidiary protection and temporal protection). Second phase ( ) aimed at eliminating the difficulties raised during the application of directives and regulations adopted during the first phase and to progressively fill in the gaps left by such rules in order to set up a common system of asylum [The Stockolm programme, ].

Acts adopted during the first phase ( ) Directive 2003/09/EC laying down minimum standards for the reception of asylum seekers (direttiva accoglienza) Directive 2004/83/EC on minimum standards for the qualification as refugees or as persons who otherwise need international protection (direttiva qualifiche) Directive 2005/85/EC on procedures for granting and withdrawing refugee status (direttiva procedure) Regulation 343/2003/EC establishing the criteria for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national Directive 2001/55/EC on temporary protection in the event of a mass influx of displaced persons (direttiva sulla protezione temporanea)

Directive 2003/09/EC It establishes minimum rights that must be granted in each member State by asylum seekers to ensure them a dignified standard of living and comparable living conditions in all Member States Art. 5: Right to be informed about benefits and obligations relating to reception conditions and about organisations that provide specific legal assistance for asylum seekers Art. 6: Right to obtain a document certifying the status as an asylum seeker or that an individual is allowed to stay in the territory of the Member State while his/her application is pending Art. 7: Right to move freely within the territory of the host Member State or within an area assigned to asylum seekers Art. 8: Member States obligation to maintain as far as possible family unity within their territory Art. 14: Right to have an accommodation and to communicate with relatives, legal advisers, representatives of the United Nations High Commissioner for Refugees and non-governmental organisations Art. 15: Right to receive the necessary health care

Directive 2004/83/EC (1) ‘refugee’ means a third country national who, owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, political opinion or membership of a particular social group (see articles 9 and 10) is outside the country of nationality and is unable or unwilling to avail himself/herself of the protection of that country ‘refugee’ means also a stateless person, who, being outside of the country of former habitual residence for the same reasons as mentioned above, is unable or unwilling to return to it. ‘person eligible for subsidiary protection’ means a third country national or a stateless person who does not qualify as a refugee but in respect of whom substantial grounds have been shown for believing that the person concerned, if returned to his/her country of origin (or, in the case of a stateless person, to his/her country of habitual residence), would face a real risk of suffering serious harm as defined in article 15.

Directive 2004/83/EC (2) Individuals who can be qualified as asylum seekers or subsidiary protection seekers are not only those scaping from serious harms that may be caused by State organs but also who escapes from violence by non-State actors like political parties, organisations controlling the State or a substantial part of the territory of the State, or simply private individuals.

Directive 2004/83/EC (3) Article 15 A serious harm consists of: a) death penalty or execution; b) torture or inhuman or degrading treatment or punishment of an applicant in the country of origin; or c) serious and individual threat to life by reason of indiscriminate violence in situations of international or internal armed conflict Interpretative difficulties raised by art. 15: see the European Court of Justice’s judgment in the Elgafaji case (C-465/07, 17 February 2009)

Regulation 343/2003/EC It establishes the criteria for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national The purpose is to avoid as much as possible the asylum shopping, that is to say the asylum seekers’ attitude to move within the Union in order to apply for the asylum in those countries where it’s more likely to obtain such a status. See articles 7, 8, 9, 10, 12, 13.

Directive 2001/55/EC (1) Beneficiaries of the termporary protection: “displaced persons”, that is to say third-country nationals or stateless persons who have had to leave their country of origin, or have been evacuated, and are unable to return in safe conditions because of the situation in that country, who may: - fall within the scope of application of art. 1A of the Geneva Convention, that is individuals who may apply for the refugee status; - persons who have fled areas of armed conflict or endemic violence; - persons at serious risk or who have been the victims of systematic or generalised violations of their human rights; When it can be granted? In cases of mass influx of displaced persons in a Member State because there might be the the risk that the asylum system will be unable to work because of the huge number of people asking for the asylum status

Directive 2001/55/EC (2) Temporary protection and refugees status Temporary protection does not prejudge the recognition of refugee status under the Geneva Convention. It means that a person enjoying temporary protection may apply for asylum and, if his applicatoin will be rebutted, he will not be deprived of the temporary protection. What about the lenght of temporary protection? It lasts one year. It may be extended two times, each time for six months. Who will authorize the issuing of permits for temporary protection? Not Member States autonomously, but the Council (of ministers), which establishes the existence of a mass influx of displaced persons by a decision adopted by a qualified majority on a proposal of the Commission. The Commission has to examine any request by a Member State, and can submit a proposal to the Council. The Council decision shall have the effect of introducing temporary protection for the displaced persons in all the Member States.

Directive 2001/55/EC (3) Rights of individuals enjoing the temporary protection - Member States must provide persons enjoying temporary protection with residence permits. - Member States are obliged to authorise, for a period not exceeding that of temporary protection, persons enjoying it to engage in employed or self- employed activities, as well as in the educational system for minors, or in the educational opportunities and vocational training for adults (but for reasons of labour market policies, Member States may give priority to EU citizens). - Member States are bound to ensure that persons enjoying temporary protection have access to suitable accommodation, medical care, social assistence and means of subsistence if they do not have sufficient resources.