EU Immigration and Asylum Law [3 ed.] 1509957316, 9781509957316

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EU Immigration and Asylum Law Article-by-Article Commentary

edited by

Daniel Thym Kay Hailbronner

Third edition 2022

Published by Verlag C.H.Beck oHG, WilhelmstraBe 9, 80801 Milnchm, Germany, email: [email protected]

Co-published by Han Publishing. Kemp House, Oiawley Park, Cwnnor Hill, Olford OX2 9PH, United Kingdom, online at: www.hartpub.co.uk and Nomos Verlagsgesellschaft mbH & Co. KG WaldseestraBe 3-5, 76530 Baden-Baden, Germany,

email: [email protected] Published in Nonh America by Hart Publishing An Imprint of Bloomsbury Publishing 1385 Broadway, Sew York. NY 10018, USA

Recommended citation: [Author's name), in: Thym/Hailbronner (eds.), EU Immigration and Asylum Law. Article-by-Article Commentary, 3rd edition (C.H. Beck/Hart/Nomos, 2022), Article (#), mn [#)

www.beck.de ISBN 978 3 406 77969 5 (C.H.BECK) ISBN 978 l 5099 5731 6 (HART) ISBN 978 3 8487 7248 3 (NOMOS) C 2022 Verlag C.H.Beck oHG Wilhelmstr. 9, 80801 Milnchen Printed in Germany by F.bcrl & Koesd GmbH & Co. KG Am Buchweg I, 87452 Altusried-Krugull Typeset by Rcemers Publishing Services GmbH, Krefdd Cover: Druckrrei C.H.Beck N0rdlingm

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Preface Immigration and asylum policy have become the object of intense political disputes in many Member States and at supranational level. Their legal dimension is increasingly influenced by EU directives and regulations on various aspects of entry, border controls, visas, immigration and asylum - as the policy crisis of 2015/16 demonstrated exemplarily. Legal and political debates at the national and supranational level often revolve around the contents of EU legislation which determines the outcome of court cases throughout the continent and guides national parliaments when adopting domestic rules. After more than 20 years of legislative activities at EU level and more than 200 judgments of the Court of Justice in Luxembourg, it has become difficult to keep an oversight of the diverse instruments adopted on a variety of topics ranging from visa applications in consulates abroad and border controls at sea over the entry and stay of family members, students or intra-corporate transferees to reception conditions and procedural guarantees for asylum seekers. This Commentary pursues the objective of assisting readers to confront the complexity of supranational legislation. The publication of a new directive or regulation in the Official Journal is the beginning of an occasionally cumbersome process of implementation, enforcement and adjudication at the national and supranational level. This Commentary aims to support those involved in different functions and at various levels in interpretating and applying supranational rules: judges at domestic courts, officials working for administrative authorities or national ministries, members of civil society, academics, practicing lawyers or civil servants with an EU institution. To support all these potential readers required the authors to pay attention to both the seemingly technical detail and the grand scheme connecting different instruments. Four thematic introductions, written by the lead editor, are meant to allow newcomers to keep an oversight of a highly complex area of the law, thus recognising the proverbial forest behind the trees. Detailed comments no less than 20 different instruments provide an in-depth analysis of the most important pieces of legislation written by eminent experts from both academia and legal practice from across Europe. In order to provide a comprehensive overview, this book employs the method of a 'commentary' in the German tradition explaining the contents and legal context of each legislative instrument article by article. Thus, the chapter on a specific directive or regulation will not usually be read from A to Z like a book. Rather, readers will consult the information on a specific article and will then be re-directed, by means of crossreferences, to related information elsewhere in the Commentary. By way of example, someone interested in the scope and interpretation of the public policy exception in Article 6 Long-Tenn Residents Directive 2003/109/EC will open the relevant pages on this article and look for the information she requires. Reading the more specific comments, she will be directed to horizontal information on the interpretation of the public policy standard in the introductory chapter on the legal framework for EU immigration policy. They explain how the ECJ case law on different instruments feeds into a more or less consistent whole. However, not all provisions have been subject to court rulings at the national or supranational level. In such cases, the authors of the chapter may present legal argument how the provision should be interpreted in light of the interpretative standards described in the general introduction explaining the constitutional framework. V

Preface We have bee careful to bring together a rich collection of authors with various backgrounds from across Europe. Some are experienced practitioners with a high expertise in the field they are writing on. Others are senior academics or promising young researchers involved in debates about immigration and asylum. Not all authors contributing to this book will necessarily share the same opinions on specific topics. Therefore, different views cannot be excluded; they are the hallmark of legal debates on controversial topics. We are united by the ambition to provide our readers with reliable and in-depth materials on a complex area. It is a characteristic of immigration and asylum law that its interpretation is the object of legal and political disputes and disagreements. For that reason, reliability is a core features of this Commentary. Each chapter provides a trustworthy overview of the state of the art, including court judgments. Whenever there is room for disagreement, existing opinions in the literature shall be presented, possibly together with a proposal by the author how the question should be resolved. In doing so, the contributors participate in the doctrinal reconstruction of the law in line with the continental tradition of interpretative hermeneutics in areas where no case law exists so far. As a transnational undertaking, it is not the purpose of this Commentary to inform our readers how the Member States implement European rules. Rather, it has the objective of describing the contents of EU legislation, of identifying open questions of interpretation and of providing argwnents what a potential answer might be. Given that the EU is a multilingual polity, we have invited authors to include case law by national courts from across Europe and academic writing in different languages. The third edition was delayed as a result of the ongoing reform of asylum policy, which the Commission had kickstarted with several legislative initiatives during 2016. For many years, we had assumed - and hoped - that the EU institutions would agree on a compromise that would help overcome the structural deficits of supranational asylum policy. That did not happen. Similarly, the 'Pact on Migration and Asylum', presented by the Commission in September 2021, seems not to have reversed the political stalemate. At the time of writing, discussions within the Council were ongoing at a technical level and the European Parliament was preparing to adopt its position; it remained uncertain whether the package would ever be adopted. Even if that happened, we may expect the contents of the final legislation to differ markedly form the Commission's proposals in important respects as a result of inter-institutional compromises. We have decided, therefore, to publish the third edition on the basis of secondary legislation as it stood during the spring of 2021. At the same time, failure of policy reform reinvigorates the idea behind the Commentary: to analyse highly complex legislation that raises formidable questions of interpretation when being applied to scenarios the legislature did not necessarily have in mind. We hope that the common methodological concept underlying a Commentary article-by-article will be useful for both practitioners and academics working on domestic or supranational immigration and asylum law. Of course, there may be gaps and omissions. The editors and authors therefore appreciate any suggestion how to improve the general scheme or individual chapters in subsequent editions of this book. They should be directed to Prof. Dr. Daniel Thym University of Konstanz Research Centre Immigration & Asylum Law Universititsstrafie 10, D-78457 Konstanz, Germany [email protected]

VI

Acknowledgments The editors express their gratitude to the researchers and assistants of the University Chair of European and International Law and the Research Centre Immigration & Asylum Law at the University of Konstanz. Professor Kay Hailbronner, who held the university chair until 20 I 0, initiated the idea of the Commentary whose first edition was published in 2010. It has been managed by his successor Professor Daniel Thym ever since the second edition, published in 2016. The editors owe great debt to Sabine Gerber who did an excellent coordination work for the first edition. The second edition saw substantial changes that have been diligently administered by Carolin Beverungen Arevalo, Sigrid Gies and Dr. Tobias Klarmann. Marie-Louise Reuter deserves much appreciation for the skilful, trustworthy and cooperative way in which she managed the manuscripts submitted by the authors for the third edition. This time-consuming project could not have been completed without the invaluable help provided by the student assistants of the university chair. For the third edition they include: Jule Arwinski; Johanna Bottyanfy; Iris Imgrund; and Anna Schilling. All the people mentioned above did a wonderful job in preparing the word files for the commentary and in checking compliance with the style guide. Our contact persons with the publisher, Thomas Klich and Dr. Wilhelm Warth, deserve credit for their reliable and flexible cooperation.

VII

Summary of Contents Preface ·································································-······· ... ·.................. .......................................................... V Acknowledgments ........... -······-······-················-····-·································································-······........ VII List of Authors............................................................................................................................................ XXVII List of Abbreviations................................................................................................................................. XXIX PartA

Overarching Tbcmcs Chapter l. Constitutional Framework and Principles for Interpretation (Daniel Thym) ...........

Part B Secondary l..egillatlon on Entry and Bonier Controls

Legal Framework for Entry and Border Controls (Daniel Thym)............................... 47 Visa Code Regulation (EC) No 810/2009 (Annalisa Meloni)....................................... 84 Sea Borders Regulation (EU) No 656/2014 (Bernard Ryan)......................................... 179 Schengen Borders Code Regulation (EU) 2016/399 (Sarah Progin-Theuerkaufl Astrid Epiney) .........·-··············........................ _....................................................................... 216 Chapter 6. Frontex Regulation (EU) 2019/1896 (Bernard Ryan) ..................................................... 283 Chapter 2. Chapter 3. Chapter 4. Chapter 5.

PutC

Secondary Leglslatlon OD lmmipatlon Chapter 7. Legal Framework for EU Immigration Policy (Daniel Thym) ..................................... 383 Chapter 8. Family Reunification Directive 2003/86/EC (Tonas Bornemann/Caroline Arevalo! Tobias Klarmann) ................................................................................................................... 432 Chapter 9. Long-Term Residents Directive 2003/ 109/EC (Daniel Thym)...................................... 540 Chapter 10. Human Trafficking Directive 2004/81/EC (Marcel Kau) .............................................. 642 Chapter 11. Return Directive 2008/ l l 5/EC (Fabian Lutz/Sergo Manana.shvili/ Madalina Moraru) ................................................................................................ .................. 692 Chapter 12. Blue Card Directive 2009/50/EC (Tulia Herzog-Schmidt/Roman Lehner) .................. 805 Chapter 13. Employers Sanctions Directive 2009/52/EC (Florian Schierle) ..................................... 869 Chapter 14. Single Permit Directive 2011/98/EU (Sara Iglesias Sanchez) ........................................ 910 Chapter 15. Seasonal Workers Directive 2014/36/EU (Anja Wiesbrock!Cliodhna Murphy) ....... 959 Chapter 16. Intra-Corporate Transfer Directive 2014/66/EU (Hendrik Lorges) ............................. 1002 Chapter 17. Students and Researchers Directive (EU) 2016/801 (Roman Lehner/Sigrid Gies) ... 1048 PutD

Secondary Legialatlon on Aaylum Chapter 18. Legal Framework for EU Asylum Policy (Daniel Thym) ........................·-···················· 1129 Chapter 19. Temporary Protection Directive 2001/55/EC (Achilles Skordas) ................................. I In Chapter 20. Asylum Qualification Directive 2011/95/EU (Harald Dorigllngo Kraft/Hugo

Storey/Hemme Battjes) ·······-··-··-..······················································································-- 1229 Chapter 21. Asylum Procedures Directive 2013/32/EU (Tens Vedsted-Hansen) ............................. 1429 Chapter 22. Asylum Reception Conditions Directive 2013/33/EU (Lilian Tsourdi) ...................... 1540 Chapter 23. Dublin Ill Regulation (EU) No 604/2013 (Constontin HruschlCJJ./Francesco Maiani) ...................................................................................................................................... 1639 Chapter 24. Resettlement Regulation (Proposal) (Meltem Ineli-Ciger) ............................................. 1764

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Table of Contents Preface·············································································································-··········································· V Acknowledgments.-····-···· ..······ ..··-······-···· ..-···· ..······-········-·.. ···-······-·····-·······-····-·············-·············· VII List of Authors. ........................................................................................................................................... XXVII List of Abbreviations ................................................................................................................................. XXIX Put A Overarcblng Tbema

Cllaptcr I. C.Omtitutlonal Framework and Prindpla for lntaprctatlon (Donia T1tym)..... I. General Remarks..................................................................................................................................... 11. Overarching Principles.......................................................................................................................... Ill. Territorial Scope (Member State Participation) .............................................................................. IV. Human Rights and International Law...............................................................................................

I 2 9 32 37

PutB Secondary Legislation on Entry and Border C.Ontrols

Chapter 2.1.epl Framework for Entry and Border C.Ontrola (Doniel T1tym)........................... I. General Remarks ..................................................................... ·-····························································· II. Treaty Guidance under Article 77 TFEU .......................................................................................... Ill. Overarching Principles ................................................................................................ .......................... rv. Human Rights and International Law............................................................................................... Visa Code Regulation (EC) No 810/2009 (Annlllisa Mdonl) ···························-······· Objective and scope................................................................................................................. Definitions···········································-···················································································· Third-country nationals required to hold an airport transit visa ................................ Authorities competent for taking part in the procedures relating to applications ... Member State competent for examining and deciding on an application ................. Consular territorial competmce........................................................................................... Competence to issue visas to third-country nationals legally present within the territory of a Member State ........................................... ·-····················································· Article 8. Representation arrangements .................................... -.......................................................... Article 9. Practical modalities for lodging an application................................................................ Article 10. General rules for lodging an application............................................................................ Article 11. Application form ...................................................................................................................... Article 12. Travel document ...................................................................................................................... Article 13. Biometric identifiers................................................................................................................ Article 14. Supporting documents............................................................................................................ Article 15. Travel medical insurance....................................................................................................... Article 16. Visa fee-······-·························-······························································-·································· Article 17. · Service fee ......................................................................................................·-························· Article 18. Verification of consular competence .............................·-········-········································· Article 19. Admissibility .............................................................................................. _............................. Article 20. Stamp indicating that an application is admissible......................................................... Article 21. Verification of mtry conditions and risk assessment ..................................................... Article 22. Prior consultation of central authorities of other Member States................................ Article 23. Decision on the application .......................... -····-······-· ..................................- ................... Article 24. Issuing of a uniform visa····················································-················································· Article 25. Issuing of a visa with limited territorial validity ............·-··············································· Article 25a Cooperation on readmission ...................................... _......................................................... Article 26. Issuing of an airport transit visa···················-················· ..············.. ·-································· Article 27. Filling in the visa sticker........................................................................................................

Chapter 3. Article I. Article 2. Article 3. Article 4. Article 5. Article 6. Article 7.

47 48

53 66

74 84 85

97 99

101 102

104 105 105 108 111 112

113 114 118 121 122

125 126 126 129 129 132

135 137 140 145 149

150 XI

Table of Contents Article 28. Invalidation of a completed visa sticker............................................................................. 150 Article 29. Affixing a visa sticker............................................................................................................. 150 Article 30. Rights derived from an issued visa...................................................................................... 150 Article 31. Information of central authorities of other Member States .........................................• 151 Article 32. Refusal of a visa........................................................................................................................ 151 Article 33. Extension ................................................................................................ ................................... 159 Article 34. Annulment and revocation ....................................................................·-···················--········ 161 Article 35. Visas applied for at the external border............................................................................. 163 Article 36. Visas issued to seafarers in transit at the external border............................................. 164 Article 37. Organisation of visa sections................................................................................................ 165 Article 38. Resources for examining applications and monitoring visa procedures .................... 165 Article 39. Conduct of staff....................................................................................................................... 167 Article 40. Consular organisation and cooperation ............................................................................. 167 Article 42. Recourse to honorary consuls............................................................................................... 168 Article 43. Cooperation with external service providers..................................................................... 168 Article 44. Encryption and secure transfer of data.............................................................................. 171 Article 45. Member States' cooperation with commercial intermediaries ...................................... 171 Article 46. Compilation of statistics....................- .......... _....................................................................... 171 Article 47. Information to the general public ........... -......-................................................................... 171 Article 48. Local Schengen cooperation between Member States' consulates ................................ 172 Article 49. Arrangements in relation to the Olympic Games and Paralympic Games................ 174 Article 5 I. Instructions on the practical application of this Regulation.......................................... 174 Article 5 I a. Exercise of the delegation...................................................................................................... 174 Article 52. Committee procedure ......... -................ ·-········ ........ _............................................................ 174 Article 53. Notification.............................................................................................................................. 175 Article 54. Amendments to Regulation (EC) No 767/2008............................................................... 175 Article 56. Repeals........................................................................................................................................ 175 Article 57. Monitoring and evaluation .................................................................................................... 175 Article 58. Entry into force........................................................................................................................ 175 C.bapter 4. Article I. Article 2. Article 3. Article 4. Article 5. Article 6. Article 7. Article 8. Article 9. Article 10. Article 11. Article 12. Article 13. Article 14. Article I 5.

Sea Borden Regulation (EU) No 656/2014 (Bernard Ryon) ...................................... Scope ........................................................................................................................................... Definitions ................................................................................................................................. Safety at sea............................................................................................................................... Protection of fundamental rights and the principle of non-refoulement................... Detection .................................................................................................................................... Interception in the territorial sea ................................................................... -········-·········· Interception on the high seas ................................................................................................ Interception in the contiguous zone.................................................................................... Search and rescue situations................................................................................................. Disembarkation ........................................................................................................................ Amendment to Regulation (EC) No 2007/2004 ....... -.................................. -.............. _.. Solidarity mechanisms ........................................................................................... - ............. Report ......................................................................................................................................... Effects of Decision 2010/252/EU ......................................................................................... Entry into force........................................................................................................................

179 180 186 188 189 197 198 202 207 208 212 214 215 215 215 215

Chapter 5. Sdlengm Borden Code Regulation (EU) 2016/399 (Sarah Progln-Tlteuerlum/1

Astrid Eplney) .......................................................................................................................... . 216 Article I. Article 2. Article 3. Article 4. Article 5. Article 6. Article 7. Article 8. Article 9. Article 10.

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Subject matter and principles .............................................................................................. . Definitions ................................................................................................................................ . Scope ......................................................................................................................................... .. Fundamental Rights ............................................................................................................... . Crossing of external borders ................................................................................................ . Entry conditions for third-country nationals ................................................................... . Conduct of border checks .................................................................................................... .. Border checks on persons .................................................................................................... .. Relaxation of border checks ................................................................................................. . Separate lanes and information on signs .......................................................................... .

217 227

232 233 234

237 244 245 253 253

Table of Contents Article 11. Article 12. Article 13. Article 14. Article 15. Article 16. Article 17. Article 18. Article 19.

Stamping of the travd documents....................................................................................... Presumption as regards fulfilment of conditions of duration of stay···-··············-···· Border surveillance········-··········· .. ·································-····-····················-······-··.................. Refusal of entry ............................... -...··············································-······························-···· Staff and resources for border control................ ·-····················-··--····-····-··············-···· Implementation of control .............................................................................·-······-······-···· Cooperation between Member States..·-··············-·································-····-···················· Joint control .......................·-·····························································································-····· Specific rules for the various types of border and the various means of transport used for crossing the external borders ...................................................... -.................·-···· Specific rules for checks on cenain categories of persons ·····························-········-···· Measures at external borders and support by the Agency ....................................·--·· .. Crossing internal borders .................................·-·····································-·····················....... Checks within the territory··········--······ ............-.... _......-..····-··············..-··-····················· Removal of obstacles to traffic at road crossing-points at internal borders.............. General framework for the temporary reintroduction of border control at internal borders......·-························-··..·····..····-············································........................................ Criteria for the temporary reintroduction of border control at internal borders..... Pnxedure for the temporary reintroduction of border control at internal borders under Article 25 ······················--······-······-······-··············..············--·············· ....................... Specific procedure for cases requiring immediate action ............................................... Specific proadure where exceptional ciraunstances put the overall functioning of the area without internal border control at risk............................................................... Criteria for the temporary reintroduction of border control at internal borders where exceptional circumstances put the overall functioning of the ana without internal border control at risk ...............................·-···························································· Informing the European Parliament and the Council ..........................·-······················· Provisions to be applied where border control is reintroduced at internal borders Report on the reintroduction of border control at internal borders··-······················· Informing the public ............... -.............. ·-······-··························.......................... _............... Confidentiality ..........................................·-···················································.......................... Amendments to the Annexes ........................................................................·-······.............. Exercise of the ddegation ............·-··..····-······-..··································· ..-······ ...................... Committee pnxedure ........·-··-··.. ····-·· .. ········ ..······················ .. ····-············-··........... ............. Notifications ..............................................·-··························································................... Local border traffic······················-···········-·····························-····-··········-··········.................. CClrta and Melilla.·-····················-············-······-····································································· Notification of information by the Member States...................................·-···················· Evaluation mechanism .....·--······-..·-············-·····................-......-...................................... Repeal .......................................................·-··--·····.................................................................... Entry into force ......................................................·-··················.............................................

272 272 273 273 273 273 280 280 280 280 280 280 280 281 281 281

Chapter 6. Fronta: Regulation (EU) 2019/1896 (Bernard Ryan).................................................. Article 1. Subject matter ........................... ·-····························································································· Article 2. Definitions................................................................................................................................. Article 3. European integrated border management ···················································-···················· Article 4. European Border and Coast Guard ..... ·-······-····································································· Article 5: European Border and Coast Guard Agency...................................................................... Article 6. Accountability ................................. ·-······················································································· Article 7. Shared responsibility······································································································-······· Article 8. Multiannual strategic policy cycle for European integrated border management.... Article 9. Integrated planning ........................................................................................................ _....... Article 10. Tasks of the European Border and Coast Guard Agency ...............................·-············ Article 11. Duty to cooperate in good faith........................................................................................... Article 12. Obligation to a:change information ................................................................................... Article 13. National contact points···································-····································································· Article 14.. Communication network ....................................................................................................... Article 15. Information exchange systems and applications managed by the Agency·-············· Article 16. Technical standards for information exchange ................................................................

283 284 290 294 296 296 297 298 300 300 301 304 305 305 305 305 305

Article 20. Article 21. Article 22. Article 23. Article 24. Article 25. Article 26. Article 27. Article 28. Article 29. Article 30.

Article 31. Article 32. Article 33. Article 34. Article 35. Article 36. Article 37. Article 38. Article 39. Article 40. Article 41. Article 42. Article 43. Article 44. Article 45.

254 256 257 258 261 261 261 262 262 263 263 264 265 265 268 268 269 270 270

XIII

Table of Contents Article 17. Article 18. Article 19. Article 20. Article 21. Article 22. Article 23. Article 24. Article 25. Article 26. Article 27. Article 28. Article 29. Article 30. Article 31. Article 32. Article 33. Article 34. Article 35. Article 36. Article 37. Article 38. Article 39. Article 40. Article 41. Article 42. Article 43. Article 44. Article 45. Article 46. Article 47. Article 48. Article 49. Article 50. Article 51. Article 52. Article 53. Article 54. Article 55. Article 56. Article 57. Article 58. Article 59. Article 60. Article 61. Article 62. Article 63. Article 64. Article 65. Article 66. Article 67. Article 68. Article 69. Article 70.

XIV

Information assurance···································································-······-····........................... 305 EUROSUR .....................................·-············································.. ·········· ................................. 305 Scope of EUROSUR .............................................................................................................. _ 306 EUROSUR components····-······ .............. -................... _......................................................._. 307 National coordination centres···························································································-· 307 EUROSUR Handbook............................................................................................................ 307 Monitoring of EUROSUR...................................................................................................... 307 Situational pictures .... -..............·-······ ..······-····························································-············· 307 National situational pictures .......-................................- ................................................... _. 307 European situational picture................................................................................................. 307 Specific situational pictures ......................................................................................... -........ 308 EUROSUR fusion services·-·········· ...................................... _......................................... _.. _. 308 Risk analysis .............................. ·-········-·······..··········· ..-·-.......................................... -............ 308 Determination of external border sections ........................................................................ · 309 Agency liaison officers in Member States ..................................·-····································· 309 Vulnerability assessment .................................... _.................. -.............. -.....·--·· .. ··········-···· 311 Synergies between the vulnerability assessment and the Schengen evaluation mechanism .........................................................................................- ..................................... 314 Attribution of impact levels to enema! border sections ...·-·······................................... 315 Reaction corresponding to impact levels .................................... -...................................... 316 Actions by the Agency at the external borders................................................................. 317 Initiating joint operations and rapid border interventions at the external borders. 318 Operational plans for joint operations................................................................................ 319 Procedure for launching a rapid border intervention .......·-········································-· 322 Migration management support teams................................................... ·-························· 322 Proposed actions at the external borders ........................................................................... 323 Situation at the external borders requiring urgent action .............................................. 324 Instructions to the teams···················································-··························-············-········ 327 Coordinating officer................................................................................................................ 328 Costs ................................................................................................ ........................................... 329 Decisions to suspend, terminate or not launch activities............................................... 329 Evaluation of activities .........................................................................- ..........................·-···· 331 Return ......................................................................................................................................... 331 Information exchange systems and management of return .......................................... 333 Return operations ··················-·· .. ····································-·································· .................... 333 Pool of forced-return monitors............................................................................................ 333 Return teams............................................................................................................................. 334 Return interventions ................................................................................................ ............... 335 European Border and Coast Guard standing corps ........................-............................... 335 Statutory staff in the standing corps·····-··················....··························-.. ························ 335 Member States' participation in the standing corps through long-term secondment ·················-······························-·································································· 335 Member States' participation in the standing corps through short-term deplo)'lllents ................................................................................................ .................... 335 Member States' participation in the standing corps through the reserve for rapid reaction .................................................................·-··································································· 335 Review of the standing corps ...................................................................-........................... 335 Antenna offices......................................................................................................................... 336 Financial support for the development of the standing corps ...................................... 336 Training...................................................................................... ·-············································· 336 Acquisition or leasing of technical equipment ................................................................. 338 Technical equipment pool..................................................................................................... 338 Reporting on the Agency's capabilities ............................................................................... 338 Research and innovation ........·-····················· .. ········-········································-··-······-······ 338 ETIAS Central Unit ............................................................. ·-················································· 339 Cooperation of the Agency with Union institutions, bodies, offices, agencies, and 339 European cooperation on coast guard functions.............................................................. 339 Cooperation with Ireland and the United Kingdom....................................................... 339

Table of Contents Article 71. Article 72. Article 73. Article 74. Article 75. Article 76. Article 77. Article 78. Article 79. Article 80. Article 81. Article 82. Article 83. Article 84. Article 85. Article 86. Article 87. Article 88.

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Cooperation with third countries ····-·············-···························-··--·································· Cooperation of Member States with third countries ...................................................... . Cooperation between the Agency and third countries .................................................. . Technical and operational assistance provided by the Agency to third countries ... Exchange of information with third countries in the framework of EUROSUR ..... Role of the Commission with regard to cooperation with third countries ............... . Liaison officers in third countries ....................................................................................... . Observers participating in the Agency's activities............................................................ ·······-······-.. ····-························-·································· ........... -··················································· Protection of fundamental rights and a fundamental rights strategy_........................ Code of conduct .............................·-······················································································· Tasks and powers of the members of the teams·········-.. ·············································-·· Accreditation document ......................................................................................................... Civil liability of the members of the team......................................................................... Criminal liability of the members of the teams .......... ·-··················································· General rules on processing of personal data by the Agency ....................................... Purposes of processing of personal data ............................................................................ Processing of personal data collected during joint operations, return operations, return interventions, pilot projects, rapid border interventions, and migration management support team deployments........................................................................... Article 89. Processing of personal data in the framework of EUROSUR ................................... _.. Article 90. Processing of operational personal data............................................................................. Article 91. Data retention ..................................... ·-··················································································· Article 92. Security rules on the protection of classified information and sensitive nonclassified information.............................................................................................................. Article 93. Legal status and location ................... -··············-······-············-············································· Article 94. Headquarters agreement ................... _........................................................................... ........ Article 95. Staff················································-·······················································································-·· Article 96. Privileges and immunities...................................................................................................... Article 97. Liability..-............................................................................................ ···································-·· Article 98. Actions before the Court of Justice························-··························································· Article 99. Administrative and management structure of the Agency............................................ Article I00. Functions of the management board·············-······-·······················································-·· Article IO I. Composition of the management board............................................................................ Article 102. Multiannual programming and annual work programmes ........................................... Article 103. Chair of the management board·······-············-··································································· Article 104. Meetings of the management board·-················································································· Article 105. Voting ......................................................................................................................................... Article 106. Functions and powers of the executive director ..-........................................................... Article 107. Appointment of the aecutive director and the deputy executive directors .............. Article 108. Consultative forum .................................................................................................................. Article 109. Fundamental rights officer .................................................................................................... Article 110. Fundamental rights monitors............................................................................................... Article 111. Complaints mechanism .......................................................................................................... Article 112. Interparliamentary cooperation ............................................................................................ Article 113. Language arrangements .................................................................... ·-········ ...................... _... Article 114. Transparency and communication ...................................................................................... Article 115. ·eudget ......................-··················-······--·············-············-················-············-··················-·· Article 116. Implementation and control of the budget ....................................................................... Article 117. Combating fraud ................................·-··················································································· Article 118. Prevention of conflicts of interest........................................................................................ Article I 19. Administrative inquiries ........................... ·-··············-··························································· Article 120. Financial provision..................................................................................................................

355 356 356 356 357 357 357 357 358 361 362 362 362 363 363 365 367 368 371 372 378 378 378 379 379 379 380 380 380

Article Article Article Article

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121. Evaluation ....·-······-·································---·············································································· 122. Committee procedure······································································································-····· 123. Repeal and transitional provisions....................................................................................... 124. Entry into force and applicability···························-····················································.......

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Table of Contents Part C Secondary Legialatlon on llllllligration Chapter 7. Lep1 Framework for EU Immigration Policy (Danhl 17,ym) .................................. I. General Remarks ............................................................................................................................... :..... II. Treaty Guidance under Article 79 TFEU .......................................................................................... III. Overarching Principles .........................................................................................-............................... IV. Human Rights and International Llw ...............................................................................................

Cllapta 8. Family RmnlftcatJon Directive 2003/86/EC (Jon111 Bomemonn/ CoroUne Armlo/Tol,uu Klonnonn) ...................................................... -.......................... Article I. ..................................................................................................................................................... Article 2. ······································•·············································································································· Article 3. ··················································································································································.· Article 4. Article 5. Article 6. Article 7. Article 8. Article 9. Article 10. Article 11. Article 12. Article 13. Article 14. Article 15. Article 16. Article 17. Article 18. Article 19. Article 20. Article 21. Article 22. Chapter 9. long-Term Residents Directive 2003/109/EC (Ih,niel Thym) ................................... Article I. Subject matter ........................................................................................................................... Article 2. Definitions ................................................................................................................................. Article 3. Scope ........................................................................................................................................... Article 4. Duration of residence ............................................................................................................. Article 5. Conditions for acquiring long-term resident status················································-······ Article 6. Public policy and public security···························-···························································· Article 7. Acquisition of long-term resident status ............................................................................ Article 8. Long-term resident's EC residence permit ........................................................................ Article 9. Withdrawal or loss of status .............................................-······-···············--··················--····· Article 10. Procedural guarantees ............................................................................................................. Article 11. Equal treaunent ................................................................................................ ·····-················· Article 12. Protection against expulsion ................................................................................................. Article 13. More favourable national provisions······-······-······················-················-························ Article 14. Principle ..................................................................................................................................... Article 15. Conditions for residence in a second Member State....................................................... Article 16. Family members....................................................................................................................... Article 17. Public policy and public security·····································--······························ ..················ Article 18. Public health ............................................................................................................................. Article 19. Examination of applications and issue of a residence permit....................................... Article 19a. Amendments of long-term resident's EU residence permits......................................... Article 20. Procedural guarantees............................................................................................................. Article 21. Treatment granted in the second Member State ..... ·-························--............................ Article 22. Withdrawal of residence permit and obligation to re.admit.......................................... Article 23. Acquisition of long-term resident status in the second Member State ....................... Article 24. Report and rendez-vous clause .............................................................................................

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Table of Contents Anicle 25. Article 26. Article 27. Anicle 28.

Contact points ·······-························-····--····-······-······································· ····-············-······ Transposition ................................................................................................ ............................ Entry into force ............................·-······································................................................... Addressees···-··············································-············-·····························.................................

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Chapter 10. Human Tnfflddng Directive 2004/81/EC (Morul Iuiu) ......................................... Article I. Purpose ....................................................................................................................................... Article 2. Definitions ................................................................................................................·-········-···· Article 3. Scope ...............................·-·····················-···························..................................... _............... Article 4. More favourable provisions ........................................................ _......................................... Anicle 5. Information given to the third-country nationals concerned ....................................... Article 6. Reflection period ................·-········-································ .. ·············································· ......... Anicle 7. Treatment granted before the issue of the residence permit......................................... Article 8. Issue and renewal of the residence permit ........................................................................ Article 9. Treatment granted after the issue of the residence permit............................................ Article 10. Minors ........................................................................................................................................ Article 11. Work, vocational training and education .......................................................................... Article 12. Programmes or schemes for the third-country nationals concerned.......................... Anicle 13. Non-renewal .............................................................................................................................. Anicle 14. Withdrawal .................·-································-···················································-····················· Article 15. Safeguard clause····················-····-······--····--····--··---················· ..······························-······ Article 16. Report .........................·-······························-·······-····--···································· ...···-······ .. ······Article 17. Transposal ·········································-······································-·············································· Article 18. Entry into force·········································-----·····································-·············· Article 19. Addressees ........................................................·-············-························································ Chapter 11, Return Directive 2008/115/EC (Folnon Lutz/Ser-go Monaruuhvilil Modollno Moron,) ............................................................................................................... . Article I. Subject maner .......................................................................................................................... . Article 2. Scope ................................................................................................................................... -..... . Article 3. Definitions ................................................................................................................................ . Article 4. More favourable provisions ...........................................................................·-·············........ Article 5. Non-refoulement, best interests of the child, family life and state of health............ . Article 6. Return decision ..............................................................·-······························· ........................ Article 7. Voluntary departure ............................................................................................................... . Article 8. Removal ..................·-············· .................................................................................................. .. Article 9. Postponement of removal ...................................................................................................... Article 10. Return and removal of unaccompanied minors .............................................................. . Article 1 I. Entry ban ................................................................................................................................. .. Article 12. Form .......................................................................................................................................... . Article 13. Remedies···················-······ ..-······-···· .................. ·-································ ................................... . Article 14. Safeguards pending retum .........·-·····················································-·································· Article 15. Detention ········-············--······-·-··············-·· .. ··-····-········-··················· .................................. . Article 16. Conditions of detention ··-····················································-······································ ........ . Anicle 17. Detention of minors and families··························-··············-····························· ............... Article 18. Emergency situations····························-········-····-······················-·····································-· Article 19. Reporting··-········-······--········· ........ _............ _........ _.... _...... _............... ··································· Article 20. Transposition ............................................................................................................................ Article 21. Relationship with the Schengen Convention .................................................................... Article 22. Entry into force ....................................................................................................................... . Article 23. Addressees ............................................................................................................................... ..

642 643 648 650 652 653 657

Chapter 12. Blue Card Directive 2009/50/EC (Julio HnrDg-SchmiJt/Romon Ldtner) ............ Article I. Subject maner ................................................................................................ ........................... Article 2. Definitions................................................................................................................................. Article 3. Scope........................................................................................................................................... Article 4. More favourable provisions ................................................................................................... Article 5.· Criteria for admission ..................................................·-················· ....................................... Article 6. Volumes of admission ............................................................................................................ Article 7. EU Blue Card............................................................................................................................

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Table of Contents Article 8. Article 9. Article 10. Article 11. Article 12. Article 13. Article 14. Article 15. Article 16. Article 17. Article 18. Article 19. Article 20. Article 21. Article 22. Article 23. Article 24. Article 25.

Grounds for refusal ····························-······-······-······-·········································· ................. 830 Withdrawal or non-renewal of the EU Blue Card .................................·-······················· 833 Applications for a.dmission ................ -···········································································-····· 837 Procedural safeguards·-········-·-··-····-···················································· ........................... .·· 838 Labour market access ............................................ ·-······························································· 839 Temporary unemployment.................................................................................................... 844 Equal treatment ........................................................................................................................ 846 Family members ....................................................................................................................... 852 EC long-term resident status for EU Blue Card holders ..................... ·-·········............. _ 856 Long-term residence permit .................................................................................................. 857 Conditions ............................................ -... ···-······-··································................................. 860 Residence in the second Member State for family members ........................................ 864 Implementing measures ............................................................................................. -.......... 867 Reports ....................................................................................................................................... · 868 Contact points.......................................................................................................................... 868 Transposition............................................................................................................................ 868 Entry into force........................................................................................................................ 868 Addressees ................................................................................................ ................................. 868

Cbaptcr 13. Employers Sanctlom Directive 2009/52/EC (Flarlan ~ ) ···························-·· Article I. Subject matter and scope···--······-····-··················-················-··············-········-···········....... Article 2. Definitions····························-······-···· .. -······-······-····························-····................................. Article 3. Prohibition of illegal employment ............................................................ -............... _........ Article 4. Obligations on employers...................................................................................................... Article 5. Financial sanctions·····································-··············-························ .. ······-··············--··· .. ···· Article 6. Back payments to be made by employers.......................................................................... Article 7. Other measures ................................................................................................ ........................ Article 8. Subcontracting .......................................................................................................................... Article 9. Criminal offence....................................................................................................................... Article 10. Criminal penalties .................................................................................................................... Article 11. Liability of legal persons ................................................................................................ ........ Article 12. Penalties for legal persons ................................................................................................ ..... Article 13. Facilitation of complaints...................................................................................................... Article 14. Inspections................................................................................................................................. Article 15. More favourable provisions ....................................................................................... -.......... Article 16. Reponing ...................................................................................... - ........................................... Article 17. Transposition ...........................................................................................................·-·············· Article 18. Entry into force ..............................................................................................................·-······· Article 19. Addressees .................................................................................................................................

Cbapter 14. Single Permit Directive 2011/98/EU (Sara lglulas Sdnchn:) .................................. Article 1. Subject matter ........................................................................................................................... Article 2. Definitions····································--····-········-····-············································-····················· Article 3. Scope.·-···································-······-········.................................................................................. Article 4. Single application procedure···························-·························· .. ·······································. Article 5. Competent authority .........................................·-··········································· .................... -.. Article 6. Single permit ............................................................................................................................. Article 7. Residence permits issued for purposes other than work................................................ Article 8. Procedural guarantees............................................................................................................. Article 9. Access to information ............................................................................................................. Article 10. Fees ........................ ·-······················-··············-······-·································-········-······················ Article 11. Rights on the basis of the single permit............................................................................. Article 12. Right to equal treatment ........................................................................................................ Article 13. More favourable provisions ..............................................................................·-·················· Article 14. Information to the general public .......................... ·-············ .................... -......................... Article 15. Reporting................................................................................................................................... Article 16. Transposition............................................................................................................................ Article 17. Entry into force ........................................................................................................................ Article 18. Addressees .................................................................................................................................

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939 941 942 942 945 956 957 957

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Table of Contents Chapter IS. Seasonal Worbn Directive 2014/36/EU (An.Jo Wiobrock/Qlodllu Murphy). 959 Article 1. Subject-matter............................... ·-········-··············-············-·············································-·· 960 Article 2. Scope····························--··......................................................................................................... 962 Article 3. Definitions................................................................................................................................. 964 Article 4. More favourable provisions ................................................................................................... 966 Article 5. Criteria and requirements for admission for employment as a seasonal worker for stays not exceeding 90 days ................................................................................................... 967 Article 6. Criteria and requirements for admission as a seasonal worker for stays exceeding 90 days ........................................................................................................................................ 970 Article 7. Volumes of admission ............................................................................................................ 973 Article 8. GroW1ds for rejection ............................................................................................................. 974 Article 9. Withdrawal of the authorisation for the purpose of seasonal work ............................ 9n Article 10. Obligation of cooperation ...................................................................................................... 979 Article 11. Access to information ............................................................................................................. 979 Article 12. Authorisations for the purpose of seasonal work ............................................................ 980 Article 13. Applications for a seasonal worker permit........................................................................ 982 Article 14. Duration of stay ....................................................................................................................... 983 Article 15. Extension of stay or renewal of the authorisation for the purposes of seasonal work ............................................................................................................................................ 984 Article 16. Facilitation of re-entry............................................................................................................ 986 Article 17. Sanctions against employers.................................................................................................. 987 Article 18. Procedural safeguards ............................................................................................................. 990 Article 19. Fees and costs ........................................................................................................................... 991 Article 20. Accommodation ....................................................................................................................... 992 Article 21. Placement by public employment services ........................................................................ 993 Article 22. Rights on the basis of the authorisation for the purpose of seasonal work............... 993 Article 23. Right to equal treatJnent ................................................................................................ ........ 994 Article 24. Monitoring. assessment and inspections ............................................................................ 998 Article 25. Facilitation of complaints ................................................................................................ ...... 999 Article 26. Statistics ...................................................................................................................................... 1000 Article 27. Reporting ................................................................................................................................... 1000 Article 28. Transposition ............................................................................................................................ 1000 Article 29. Entry into force ........................................................................................................................ 1001 Article 30. Addressees ................................................................................................................................. 1001 Chapter 16. lntra-C.orporate Tramfer Directive 2014/66fEU (Hendrllc UJ,ro) ....................... 1002 Article 1. Subject-matter.................................................................................................................... ·-···· 1003 Article 2. Scope ........................................................................................................................................... 1005 Article 3. Definitions ................................................................................................................................. 1007 Article 4. More favourable provisions ................................................................................................... 1012 Article 5. Criteria for adrnission ............................................................................................................. 1013 Article 6. Volumes of admission ............................................................................................................ l O17 Article 7. GroWlds for rejection ............................................................................................................. 1018 Article 8. Withdrawal or non-renewal of the intra-corporate transferee permit................. ·-···· 1021 Article 9. Sanctions .................................................................................................................................... 1023 Article 10. Access to information ............................................................................................................. 1024 Article 11. Applications for an intra-corporate transferee permit or a permit for long-term mobility ...................................................................................................................................... 1025 Article 12. Duration of an intra-corporate transfer ............................................................................. 1026 Article 13. Intra-corporate transferee permit ........................................................................................ 1027 Article 14. Modifications affecting the conditions for admis.sion during the stay ........................ 1029 Article 15. Procedural safeguards ............................................................................................................. 1029 Article 16. Fees...............................................·-························· ..································································· l030 Article 17. Rights on the basis of the intra-corporate transferee permit ........................................ 1031 Article 18. Right to equal treatment ................. -······-······-····························································· ........ 1031 Article 19. Family members ....................................................................................................................... 1036 Article 20. Mobility ...................................................................................................................................... 1037 Article 21. Shon-term mobiliry................................................................................................................. 1038 Article 22. Long-term mobility ................................................................................................................. 1041 XIX

Table of Contents Article 23. Article 24. Article 25. Article 26. Article 27. Article 28. Article 29.

Safeguards and sanctions·······························-··········································-····················-···· I044 Statistics................. ·--···········································-················································-··············-· I046 Reporting···········-················-······························································································-··- I046 Cooperation between contact points ........................................................·-····················-·· 1047 Transposition ..........·-···········-························································-········································ 1047 Entry into force ........................................................................................................................ 1047 Addressees ........................................... ·-······················································............................. 1047

Chapter 17. Students and Raearcben Dlrecdft (EU) 2016/801 (Roman Lehner/ Sl,rfll Gia) ......................................................................................................... ·-·················· 1048 Article l. Subject matter .................................................................................................................... ·-···· 1049 Article 2. Scope .................................................................................................................................... ·-···· 1050 Article 3. Definitions ................................................................................-............................................... 1053 Article 4. More favourable provisions ...................................................................... ·-·························' 1066 Article 5. Principles ................................................................................................ ···············-·········.. ······· 1068 Article 6. Volumes of admission ···································-···················· .. ··········-········-··············· ............ 1072 Article 7. General conditions................................................................................................................... 1072 Article 8. Specific conditions for researchers .............................................................................. -...... 1080 Article 9. Approval of research organisations ..................................................................................... 1084 Article 10. Hosting agreement ........................................................... -..................................................... 1086 Article II. Specific conditions for students ......................·-··············-··················································· 1089 Article 12. Specific conditions for school pupils ...... ·-·················· .. ··-······ .................. _........ _.............. 1090 Article 13. Specific conditions for trainees ......................................................................... ·-········-······· 1091 Article 14. Specific conditions for volunteers ........................................................................................ 1093 Article 15. Approval of higher education institutions, education establishments, organisations responsible for a voluntary service scheme or entities hosting trainees ..................... 1094 Article 16. Specific conditions for au pairs ............................................................................................ 1095 Article 17. Authorisations .......................................................................................................................... 1096 Article 18. Duration of authorisation ...................................................................................................... I 097 Article 19. Additional infonnation ...............................................................................................--········ 1098 Article 20. Grounds for rejection .............................·-··············-· .. ········· .. ··················-·············· ............. 1100 Article 21. Grounds for withdrawal or non-renewal of an authorisation ................................-..... 1104 Article 22. Equal treattnent ........................................................................................................................ 1107 Article 23. Teaching by researchers ......................................................................................................... 1108 Article 24. Economic activities by students ........................................................................................... 1109 Article 25. Stay for the purpose of job-searching or entrepreneunhip for researchers and students-············-············--·····································-··············-·· .. ··········································· 1110 Article 26. Researchers' family members ............................................... ·-··········· ................................... 1112 Article 27. Intra-EU mobility····························································-···············-······ .. -·.. ························ 1114 Article 28. Short-term mobility of researchers ................·-··············-········-·· .. ···········-·· .. ···················· 1115 Article 29. Long-term mobility of researchers·································-······-·················-············-·········· 1117 Article 30. Mobility of researchers' family mernbers ..............·-······················ .................................... 1120 Article 31. Mobility of students·······················-··············-····················· ...·················· ............................. 1121 Article 32. Safeguards and sanctions in cases of mobility .................................................................. 1123 Article 33. Sanctions against host entities ......-······-··················· .. ········ .. ····.............. _........................... 1125 Article 34. Procedural guarantees and transparency························································-················· 1125 Article 35. Transparency and access to information .................................................·-······················· 1125 Article 36. Fees..................................................·-······-······-··························· .............................................. 1126

Part D Secondary Legislation on Asylum Chapter 18. Lepl Framework for EU Asylum Policy (Doniel Thym) .......................................... 1129 l. General Remarks .....................................- ...................................·-····-··................. __ .... - .................. _. 1130 II. Treaty Guidance under Article 78 TFEU .......................................................................................... 1138 Ill. Overarching Principles .......................................................................................................................... 1156 IV. International Law and Human Rights .................................................................. ·-··· ....................... 1162

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Table of Contents Chapter 19. Tanponry ProtectJon Directive 2001/SS/EC (Aclailla Slamltu) .......................- .. 1177 Article I. Article 2. Article 3. Article 4. Article 5. Article 6. Article 7. Article 8. Article 9.

·······-······················································-············-······-······························ .... - .......................... 1178 ·······-······-·· ...................................... _.......................................................................................... 1183 ·······-······················································································· .............- ...................................... 1191 ·······-······-··························· ......................................................................................................... 1193 ......................................................................................................................... - .......................... 1194 ..................................................................................................................................................... 1197 ..................................................................................................................................................... 1199 ..................................................................................................................................·-··············.. 1200 ..................................................................................................................................................... 1201

Article I 0. Article 11. Article 12. Article 13. Article 14. Article 15. Article 16. Article 17. Article 18. Article 19. Article 20. Article 21. Article 22. Article 23.

·······-··············-·······································-··········································· .................................... _.. 1202 ·······-······-···············································-···.. ·········· ................................................................ _.. l202 ·······-······-·············································································································· .. ···················· 1203 ·······-······-······-··············-········-······--···························· ............................................................ 1204 ·······-······················································----.... _...................................................... 1205 ·····················································-····-··-·····-······················· ..................................................... 1206 ···············-······································-·······-·····-············································································ 1211 ···············-······································-··-···-·····-···········..·-····-········-···· ..······-···· .... ·············-······· 1212 ·······-······-······-····························-··..-··································· ···································-·······-······· 1213 ·······-······-······-··································-·······..·-·····.................. ···································-·············-· 1214 ·······-······-······································-··-···-····-············-···· .......................... - ............- .......- .... _.1215 ·······-············································································································································ 1216 ....... - ...... - .................................................................................................................................... 1217 ..................................................................................................................................................... 1219

Article 24. Article 25.

......................................................·-···························································································· l220 ..................................................................................................................................................... 1220

Article 26. Article 27. Article 28. Article 29. Article 30. Article 31. Article 32. Article 33. Article 34.

·······-············································································································································ 1222 ..................................................................................................................................................... 1222 ..................................................................................................................................................... 1223 ..................................................................................................................................................... 1225 ..................................................................................................................................................... 1226 ..................................................................................................................................................... 1226 ..................................................................................................................................................... 1227 ..................................................................................................................................................... 1227 ..................................................................................................................................................... 1227

Chapter 20. Asylum Qualification Directive 2011/9S/EU (Harald Dllrlgllngo Kraft/ Article I. Article 2. Article 3. Article 4. Article 5. Article 6. Article 7. Article 8. Article 9. Article 10. Article 11. Article 12. Article 13. Article 14. Article 15. Article 16. Article 17. Article 18. Article 19. Article 20. Article 21.

Hugo Storey/Hanme Battju) ............................................................................................. 1229 Purpose ....................................................................................................................................... 1231 Definitions ................................................................................................................................. 1237 More favourable standards ..........................................................................- ........... ·-········-1244 Assessment of facts and circumstances .........................·-·················································· 1248 International protection needs arising sur place ......... -............................ ·-···················· 1260 Actors of persecution or serious harm ......................... ·-·········· ..·······························-······ 1266 Actors of protection ··-··.. -······················-....................... _...... - .......................................... -.1270 Internal protection ............................................·-············-······················································ 1276

Acts of persecution····························-·········· .......... _•..... -............-.. ··········-···· .... ··-············- 1286

Reasons for persecution ....................................- ......- ........................................................ _.1305 Cessation ................................................................. ·-·······························-····························-· 1314 Exclusion .......................................... ·-···············-········-·········································-··············... 1323 Granting of refugee status................................. _............................................................. - .... 1351 Revocation of, ending of or refusal to renew refugee status............... ·-················ ........ 1353 Serious harm·-·····················································-············-············ ..................-.................. _. 1362 Cessation ................................................................................................................................. -.1376 Exclusion ................................................................................................................. _................. 1379 Granting of subsidiary protection status ...................... ·-·································.................. 1383 Revocation of, ending of or refusal to renew subsidiary protection status ................ 1384 General rules ............................................................................................................................. 1386 Protection from refoulement ................................................................................................. 1394

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Table of Contents Article 22. Article 23. Article 24. Article 25. Article 26. Article 27. Article 28. Article 29. Article 30. Article 31. Article 32. Article 33. Article 34. Article 35. Article 36. Article 37. Article 38. Article 39. Article 40. Article 41. Article 42.

Information·································-·····-··················................................·-············· .. ·········-······ 1397 Maintaining family unity ................................... _.................................................................. 1398 Residence permits ...................... _.... _...... _.............................................................. ·-····--··-· 1404 Travel document················-······-····-········-······--··-·· .. ······················-···················-·······•.•··· 1408 Access to employment ....................·-····················································································· l409 Access to education··················-······-····-········ ..···· ..-········ ............................ _...... ··-············· 1412 Access to procedures for recognition of qualifications ....-········-···· .............-.... _.... __ .. 1414 Social welfare ···················-··········· ..--•....•_........-.... _...... _........ _............................................ 1415 Healthcare ......................--..········ ..···•· ....--......-............--........-............................................. l418 Unaccompanied minors-······-········-····-···········································-································- 1419 Access to accommodation ............·-················-·· ..·············.. ········ .............. _......................... l421 Freedom of movement within the Member State ............................................................ 1422 Access to integration facilities ..................................... ·-··················-····················.. ········--· 1424 Repatriation··················-----·-··················-······-··············--········-···························:. 1425 Cooperation ..........................-·····-······-····-········--············-········-········································· 1425 Staff················-····················-············-··············-·········-········-·········································-····-· 1425 Reports ·························-····-····-····--·······-····-··-··············-············ ······················-············-· 1426 Transposition ......·-············-·-············-····-············································································-1426 Repeal·······························-······················-························-········-·········································-· 1427 Entry into force ..............................·-··--·········--······-····-········-···················· ........................ 1427 Addressees·········-·····················-············-································-·············· ................................. 1427

Cllapter 21. Asylum Proceduns Directive 2013/32/EU (/au Vwwl-H11nsm) ........................ 1429 Article 1. Purpose..........................................·-·······.. ···· ..······ ........................................ _.................... _..... l430 Article 2. Definitions·······-·· .. ·········..···· ................ _.............. _................................................................... 1435 Article 3. Scope ............................ ·-····· ............................................................................................... _.... _ 1438 Article 4. Responsible authorities ........................................................................................................... 1440 Article 5. More favourable provisions .........................................-................................ -...................... 1443 Article 6. Access to the procedure ......................................................................................................... 1443 Article 7. Applications made on behalf of dependants or minors ..................... _.......................... 1447 Article 8. Information and counselling in detention facilities and at border crossing points. 1449 Article 9. Right to remain in the Member State pending the examination of the application 1451 Article 10. Requirements for the examination of applications ................... -..............................-..... 1453 Article 11. Requirements for a decision by the determining authority ........................................... 1455 Article 12. Guarantees for applicants-······· ..... _...................................................................................... l457 Article 13. Obligations of the applicants ................................................................................................ 1459 Article 14. Personal interview ...-...........·-·······...................... -...... _...... -........--...·-·····.......................... l461 Article 15. Requirements for a personal interview ..................-........... ·--·..·-··-................................. 1464 Article 16. Content of a personal interview .................................... -............. -...................................... 1466 Article 17. Report and recording of personal interviews .............................................................. _.... 1467 Article 18. Medical aamination ................................................. ·-··············· ..········-··.. ····················-·· .... l469 Article 19. Provision of legal and procedural information free of charge in procedures at fint instance .. -............................. -...........·-····-·..·············-····-·········· .. ····· ...-......-...................... _. 1471 Article 20. Free legal assistance and representation in appeals procedures ............................... _.. 1473 Article 21. Conditions for the provision of legal and procedural information free of charge and free legal assistance and representation .................................... -................-.............. 1474 Article 22. Right to legal assistance and representation at all stages of the procedure ............... 1476 Article 23. Scope of legal assistance and representation·-· .. ·····.. ··-........-........-..............-.......... _.... 14n Article 24. Applicants in need of special procedural guarantees .............................-...·-···..···......... 1479 Article 25. Guarantees for unaccompanied minors ............................................................................. 1482 Article 26. Detention .............................................................-......................... -................·-·········...-........ 1486 Article 27. Procedure in the event of withdrawal of the application ...-........ -............ -.................. 1488 Article 28. Procedure in the event of implicit withdrawal or abandonment of the application 1489 Article 29. The role of UNHCR. ..................................................................................... _........................ 1491 Article 30. Collection of information on individual cases .................................... _............ -.............. 1492 Article 31. wmination procedure .....................................-.....................-........-......-.......................... 1494 Article 32. Unfounded applications ................-................ ·-···· .. ······ .. ········ ............................................ _ 1500 Article 33. Inadmissible applications .................................................................................................-.. -1501 Article 34. Special rules on an admissibility interview ............................. -......-.............. -................. 1505

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Table of Contents Article 35. Article 36. Article 37. Article 38. Article 39. Article 40. Article 41. Article 42. Article 43. Article 44. Article 45. Article 46. Article 47. Article 48. Article 49. Article 50. Article 51. Article 52. Article 53. Article 54. Article 55.

The concept of first countty of asylum-················ ............................................................ 1507 The concept of safe country of origin ...... -.....................................................- .................. 1509 National designation of third countries as safe countries of origin ............................. 1512 The concept of safe third country ....................................................................................... 1514 The concept of European safe third country ..............................·-···....·····-···.................. 1518 Subsequent application ................._.... -........................................................... _..................... 1520 Exceptions from the right to remain in case of subsequent applications ................... 1523 Procedural rules ...................................................................... -.....................·-·····-..··· ........... l524 Border procedures ........ -......................................................................................................... 1525 Withdrawal of international protection .................................................... -........................ 1528 Procedural rules ................ _......................................................................- .........- .................. 1528 The right to an effective renxdy ....... -.............. -..............-............................ -................... 1529 Challenge by public authorities ...............................................-...... _................................... 1536 Confidentiality .......................- ....................................................... _........................- .............. 1536 Cooperation ............................................................................................................................... 1536 Report ...... -........................ -....................................................................................................... 1537 Transposition .....................................-......................- ............................................................. 1537 Transitional provisions ............. -····-.. ····-··············-······· .. ······-............................................. 1537 Repeal ...·-····-·.. ·····-···························· ..···················-···················· ............................................ 1538 Entry into force and application .......................................................................................... 1538 Addressees ........................................... _.................................................................................... 1538

Chapter 22. Alylum Reception Conditiom Directiw 2013/33/EU (Liluin T,011rdi) ......... -..... 1540 Article I. Article 2. Article 3. Article 4. Article 5. Article 6. Article 7. Article 8. Article 9. Article 10. Article I I. Article 12. Article 13. Article 14. Article 15. Article 16. Article 17. Article 18. Article 19. Article 20. Article 21. Article 22. Article 23. Article 24. Article 25.

Purpose ................ -..................................................................................................................... 1541 Definitions ................................................................................................................................. 1544 Scope ........................................................................................................................................... 1550 More favourable provisions ................................................................................................... 1554 Information ............................................................................................................................... 1555 Documentation ......................... -...................................................................................... -...... 1558 Residence and freedom of movement ................................................................................. 1562 Detention ................................................................................................................................... 1568 Guarantees for detained applicants ..................................................................................... 1576 Conditions of detention ......................................................................................................... 1580 Detention of vulnerable persons and of applicants with special reception needs .... 1583 Families ...................................................................................................................................... 1588 Medical screening ... -.......... -................................................................................................... 1589 Schooling and education of minors ..................................................................................... 1590 Employment .............................................................................................................................. 1595 Vocational training .................................................................................................................. 1599 General rules on material reception conditions and health care .................................. 1600 Modalities for material reception conditions .................................................................... 1606 Health care ............................................................................................. _................................. 1611 Reduction or withdrawal of material reception conditions ........................................... 1613 General principle........................................................ -............................................................ 1619 Assessment of the special reception needs of vulnerable persons ................................ 1621 Minors ........................................................................................................................................ 1624 Unaccompanied minors ......................................................................................................... 1627 -Victims of torture and violence ............................................................................................ 1630

~~: ;~: ~~;~;··~~~~ri~;;~·:::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: !:!;

Article 28. Article 29. Article 30. Article 31. Article 32. Article 33. Article 34.

Guidance, monitoring and control system ........................................................................ 1635 Staff and resources ................................................................................................................... 1635 Reports ....................................... -................................................ -............................................ 1636 Transposition ............................................................................................................................ 1636 Repeal ...........................·-···· .. ····· ... -...........................................-..............................- .... -........ 1637 Entry into force ........... -................................-......................................................................... 1637 Addressees ................................................................................................................................. 1637

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Table of Contents Cllapter 23. Dublin Ill Rqulation (EU) No 604/2013 (Constantin Hrusdtbl Article I. Article 2. Article 3. Article 4. Article 5. Article 6. Article 7. Article 8. Article 9. Article 10. Article 11. Article 12. Article 13. Article 14. Article 15. Article 16. Article 17. Article 18. Article 19. Article 20. Article 21. Article 22. Article 23. Article 24. Article 25. Article 26. Article 27. Article 28. Article 29. Article 30. Article 31. Article 32. Article 33. Article 34. Article 35. Article 36. Article 37. Article 38. Article 39. Article 40. Article 41. Article 42. Article 43. Article 44. Article 45. Article 46. Article 47. Article 48. Article 49.

Francaco Ml,lanl) ....................................-······-······-··························································· l639 Subject matter ........................................................................................................·-············-·· 1641 Definitions························-································-······················-············ ................................. 1644 Access to the procedure for enmining an application for international protection 1651 Right to information ............................................................................................................... 1657 Personal interview ................................................................................................................... 1659 Guarantees for minors ........................................·-·········································· ....................... l662 Hierarchy of criteria ................................................................................................................ 1666 Minors ........................................................................................................................................ 1669 Family members who are beneficiaries of international protection ............................ 1673 Family members who are applicants for international protection ............................... 1673 Family procedure .................................................................................................................. _. 1674 Issue of residence documents or visas .............................................................................:.. 1676 Entry and/or stay ..................................................................................................................... 1679 Visa waived entry··················································-································································ 1682 Application in an international transit area of an airport ............................................. 1682 Dependent persons ............................ ·-········ .. ··················•·····................................................. 1683 Discretionary clauses ............................................................................................................... 1688 Obligations of the Member State responsible ................................................................... 1697 Cessation of responsibilities .................................................................................................. 170 I Start of the procedure ............................................................................................................. 1704 Submitting a take charge request ......................................................................................... l 707 Replying to a take charge request ........................................................................................ 1710 Submitting a take back request when a new application has been lodged in the requesting Member State ....................................................................................................... 1714 Submitting a take back request when no new application has been lodged in the requesting Member State ....................................................................................................... 1716 Replying to a take back request. ........................................................................................... 1719 Notification of a transfer decision .................................................... ................. .................. 1720 Remedies .................................................................................................................................... 1TI3 Detention ................................................................................................................................... 1729 Modalities and time limlts ..................................................................................................... 1734 Costs of transfer ....................................................................................................................... 1739 Exchange of relevant information before a transfer is carried out .............................. 1740 Exchange of health data before a transfer is carried out................................................ 1742 A mechanism for early warning. preparedness and crisis management .................... 1743 Information sharing .......................................... ·-··················· ................................................ 1747 Competent authorities and resources .................................................................................. 1750 Administrative arrangements ................................................................................................ 1752 Conciliation ............................................................................................................................... 1753 Data security and data protection ................... - ................................................................... 1754 Confidentiality .......................................................................................................................... 1754 Penalties ..................................................................................................................................... 1754 Transitional measures ............................................................................................................. 1756 Calculation of time limits ...................................................................................................... 1756 Territorial scope ....................................................................................................................... 1757 Committee ................................................................................................................................. 1758 Exercise of the delegation ...................................................................................................... 1759 Monitoring and evaluation .................................................................................................... 1760 Statistics ...................................................................................................................................... 1760 Repeal ......................................................................................................................................... 1761 Entry into force and applicability ........................................................................................ 1762

Chapter 24, Racttlemcnt Regulation (Propoul) (Mdlem lnai-Clger) ································-··... 1764 Article I. Article 2. Article 3. Article 4.

XXN

Subject matter ........................................................................................................................... 1765 Resettlement .............................................................................................................................. 1775 Union Resettlement Framework .......................................................................................... 1778 Regions or third countries from which resettlement is to occur .................................. 1781

Table of Contents Artide 5. Artide6. Article 7. Artide8. Artide 9. Artide 10. Article l l. Article 12. Article 13. Article 14. Artide 15. Article 16. Artide 17. Article 18. Artide 19.

Eligibility criteria ......................·-··············-·· ...·-··············································· ...................... 1785 Grounds for exclusion ............................................................................................................ 1792 Annual Union resettlement plan .......... ·-······-······-··························································-· 1796 Targeted Union resettlenient schemes.·-············································································ l796 Consent ..............................................·-··················································································· 1796 Ordinary procedure ................................................................................................................. 1797 Expedited procedure···-·······..·-················ ..-·.-····························.. ······.......... _..................... l803

Operational cooperation..........-·······························································-······················ ...... 1805

Committee·--············-······································· .. -······-······-···· 1805 Exercise of the delegation .......- ........- .... --····-············································· .. ···· .................. l805 Committee procedure ............................................................................................................. 1805 Association with Iceland, Liechtenstein, Norway, and Switzerland ............................. 1805 High•l...evel Resettlement

Amendments to Regulation (EU) No 516/2014 ··-···················.. ······································ 1806 Evaluation and Review ......... -...·-··············································································· ........... 1806 Entry into force ................................·-··················-····-··································· ........................ 1806

XXV

List of Authors Carolin Amalo, Lawyer at Agora Cultural and Education Center, Legal Support to the AntiDiscrimination Offices in North Rhine Westphalia, Germany [Chapter 8 Articles 1-5]

Hemme Battjes, Prof. Dr., Professor at the VU University Amsterdam/The Netherlands [Chapter 20 Articles 20-42] Jo11111 Bornemann, LL.M., Research Assistant at the Chair for Public Law, International and European Law, University of Konstanz/Germany [Chapter 8] Harald D6rlg, Pro[ Dr., Judge at the Federal Administrative (Supreme) Court (retired), Leipzig/ Germany, Professor at the University of Jena/Germany [Chapter 20 Articles 1-10] Astrid Epiney, Prof. Dr., Professor at the University of Fribourg/Switzerland. Managing Director of the Institute for European Law, Rector of the University of Fribourg/Switzerland [Chapter 5] Sigrid Gies, Legal Officer at the Bureau of the Provincial Commissioner for Animal Welfare (Baden-Wiirttemberg, Germany), former Research Assistant at the Chair for Public Law, International and European Law, University of Konstanz/Germany [Chapter 17] Julia Henog-Scbmidt, Dr., Legal consultant and researcher [Chapter 12] Constantin Hruschka, Dr., Senior Researcher at the Max Planck Institute for Social Law and Social Policy, Munich/Germany and Lecturer at the Universities of Bielefeld/Germany, St. Gallen/Switzerland and Bern/Switzerland [Chapter 23] Sara lglesiu Sanchez, Dr., Referendaire, Court of Justice of the European Union [Chapter 14] Meltem lneli-Clger, Dr., Assistant Professor at the Suleyman Demirel University, Isparta/furkey Member of the Odysseus Network of Academic Experts on Immigration and Asylum Law in Europe [Chapter 24] Marcel Kau, Dr., LLM. (Georgetown), Associate Professor at the University of Konstanz/Germany [Chapter IO] Toblu Klarmann, Dr., Research Assistant at the Chair of Constitutional Law, Public International Law and Human Rights Law, University of Tubingen/Germany [Chapter 8 Articles 6-22] lngo Kraft, Prof. Dr., Presiding Judge at the Federal Administrative (Supreme) Court, Leipzig/ Germany. Professor at the University of Leipzig/Germany [Chapter 20 Articles 11-14] Roman Lehner, Dr., Privatdozent at the University of G6ttingen/Germany [Chapter 12, 171 Hendrik Larges, LL.M., Legal Officer at the German Federal Ministry of the Interior, Berlin/ Germany [Chapter 16] Fabian Lutz, Dr., Senior Legal Expert, European Commission, DG Migration and Home Affairs [Chapter 11 Articles 1-11, 14, 18] Francesco Malanl, Prof. Dr., Professor in European Law at the University of Lausanne/Switzerland [Chapter 23] Sergo Mananashvili, Dr., International Centre for Migration Policy Development (ICMPD) [Chapter II Articles 12-13, 15-17, 19-23] Annalisa Meloni, Dr., Senior Lecturer in Law, University of East London/United Kingdom [Chapter 3] Madalina Moraru, Dr., Research Fellow, Centre for Judicial Cooperation, European University Institute, Florence/Italy and Lecturer in European Union Law, Judicial Studies Institute, Masaryk University, Brno/Czech Republic [Chapter 11 Articles 12-13, 15-17, 19-23] CIJodlma Murphy, Dr., Associate Professor, Maynooth University/Ireland (Chapter IS] Sarah Progin-Theuerkauf, Prof. Dr., Professor for EU Law and Migration Law, Co-Director of the Centre for•Migration Law, University of Fribourg/Switzerland [Chapter 5]

XXVII

List of Authors Bernard Ryan. Prof. Dr., Professor of Migration Law, University of Leicester/United Kingdom [Chapter 4, 6)

Florian Schierte, Head of Division at the Federal Ministry of Labour and Social Affairs. Berlin/ Germany [Chapter 13)

Achllla Skonlu. Prof. Em. Dr., University of Bristol/United Kingdom, Senior Research Fellow, Mu Planck Institute for Comparative Public Law and International Law, Heidelberg [Chapter 19)

Hugo Storey, Judge at the UK Upper Tribunal Immigration and Asylum Chamber (retired) [Chapter 20 Articles 15-19)

Daniel Tbym, Prof. Dr., Professor of European and International Law at the University of Konstanz (Germany), Director at the Research Centre Immigration & Asylum Law, Member of the Odysseus Network of Academic Experts on Immigration and Asylum Law in Europe [Chapter 1, 2. 7, 9, 18)

Evangelia (Lilian) Taourdi, (PhD, Universit~ libre de Bruxelles) Assistant Professor and Dutch Research Council grantee (NWO VENl) at the Faculty of Law and the Maastricht Centre for European Law of the University of Maastricht [Chapter 22)

Jem Veclsted-Hamen. Prof. Dr., Professor at Aarhus University/Denmark, Member of the Odysseus Network of Academic Experts on Immigration and Asylum Law in Europe [Chapter 21) Anja Wiabrock. Dr., Senior Judicial Adviser at the Research Council of Norway [Chapter IS)

XXVIII

List of Abbreviations ADD .................................. . AFSJ .................................... AG ...................................... . AMIF .................................. Asylum and Migration Interoperability Regulation (EU) 2019/ 818 ······································ Asylum Procedures Directive 2013/32/EU ..... former Asylum Procedures Directive 2005/85/ EC ...................................... .

Asylum Qualification Directive 2011/95/EU .....

former Asylum Qualification Directive 2004/ 83/EC ................................ .

Asylum Reception Directive 2013/33/EU .....

former Asylum Reception Directive 2003/9/EC Blue Card Directive 2009/50/EC ...................... .

Borders and Visa Interoperability Regulation (EU) 2019/ 817 ············--························ BVerfGE ....:...................... . BVerwGE .......................... .

addendum Area of Freedom, Security and Justice Advocate General Asylum, Migration and Integration Fund

Regulation (EU) 2019/818 of the European Parliament and of the Council of 20 May 2019 on establishing a framework for interoperability between EU information systems in the fields of police and judicial cooperation, asylum and migration (OJ 2019 L 135/27) Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection (OJ 2013 L 180/60)

Council Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status (OJ 2005 L 326/13) Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 on standards for the qualification of thirdcountry nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted (OJ 201 I L 337/9)

Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted (OJ 2004 L 304/12) Directive 2013/33/EU of the European Parliament and of the Council of 26 June 20 I 3 laying down standards for the reception of applicants for international protection (OJ 2013 L 180/96) Council Directive 2003/9/EC of 27 January 2003 laying down minimum standards for the reception of asylum seekers (OJ 2003 L 31/18) Council Directive 2009/50/EC of 25 May 2009 on the conditions of entry and residence of third-country nationals for the purposes of highly qualified employment (OJ 2009 L 155/17)

Regulation (EU) 2019/817 of the European Parliament and of the Council of 20 May 2019 on establishing a framework for interoperability between EU information systems in the fields of borders and visa and amending (OJ 2019 L 135/27) Decision of the German Federal Constitutional Court Decision of the German Federal Administrative Court

XX.IX

List of Abbreviations c .......................................... CAT .................................... CEAS ................................. . CEPS ................................... CISA .................................. . cf ........................................ CF! ...................................... CFR .................................... . Citizenship Directive 2004/38/EC ...................... .

CJEU .................................. . CML Rev. ······-·················· CoE .................................... . COM ................................. . Convention Implementing the Schengen Agreement ........................ :......... .

CoR .................................... . COREPER ···-···················· CRC ................................... . CUP ................................... . doc...................................... Dublin II Regulation (EC) No 343/ 2003 ................................... .

Dublin Ill Regulation (EU) No 604/ 2013 ····································

e.g...................................... . EASO ................................. . EASO Regulation (EU) No 439/2010 .................... .

EBGT ................................. . EC ....................................... ECHR ................................ . ECJ ...................................... ECR .................................... . ECRE ................................. .

XXX

Commission Documents relating to official instruments for which the Commission has sole responsibility Convention against Tonure and Other Cruel, Inhuman or Degrading Treatment or Punishment Common European Asylum System Centre for European Policy Studies see Convention Implementing the Schengen Agreement confer Court of First Instance of the European Union (until 2009; thereafter. General Court) Charter of Fundamental Rights of the European Union Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States (OJ 2004 L 158/77), as amended last by Regulation (EU) No 492/2011 (OJ 2011 L 141/1) Court of Justice of the European Union Common Market Law Review Council of Europe Commission Documents for the other institutions (legislative proposals, communications, repons, etc.)

Convention implementing the Schengen Agreement of 14 June 1985 between the Governments of the States of the Benelux Economic Union, the Federal Republic of Germany and the French Republic on the gradual abolition of checks at their common borders of 19 June 1990 (OJ 2000 L 293/19). Committee of the Regions Committee of Permanent Representatives of the Government of the Member States Convention on the Rights of the Child Cambridge University Press Document Council Regulation (EC) No 343/2003 of 18 February 2003 establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national (OJ 2003 L 50/1) Regulation (EU) No 604/2013 of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person (OJ 2013 L 180/31) for example European Asylum Support Office Regulation (EU) No 439/2010 of the European Parliament and of the Council of 19 May 2010 establishing a European Asylum Suppon Office (OJ 2010 L 132/11). European Border Guard Team European Community (-ies) Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights) European Court of Justice European Court Reports European Council on Refugees and Exiles

List of Abbreviations ECtHR ............................... . ed/eds ............................ _... EDPS -····--················ ..-···· EEA .. ·-··············-················

EEC ..................................... EES ............................... ·-···· EES Regulation (EU) 2017/2226 .............. _

EFfA -············-···············-· EJ(L ...•................................ EJML ................................ . EL Rev.····························-· ELJ ············-················ ........ Employers Sanctions Directive 2009/52/EC .....

EP ···········-············--····-·····

ESC .. ·-··························-··-

et al ..•................................

et seq -································ et seqq ............................... . etc.················-····················· ETS ···-······-····-············-····

EU .................................•.... EuConst ............................ . Eurodac Regulation (EU) No 603/2013 .....................

EUROSTAT ...................... Family Reunification Directive 2003/86/EC ..... Free Movement Directive 2004/38/EC ...............

FRONTEX ........................ .

European Court of Human Rights editor/editon European Data Protection Supervisor European Economic Area European Economic Community Entry/Exit System Regulation (EU) 2017/2226 of the European Parliament and of the Council of 30 November 2017 establishing an Entry/Exit System (EES) to register entry and exit data and refusal of entry data of thirdcountry nationals crossing the external borders of the Member States and determining the conditions for access to the EES for law enforcement purposes (OJ 2017 L 327/28). European Free Trade Association European Journal of International Law European Journal of Migration and Law European Law Review European Law Journal Directive 2009/52/EC of the European Parliament and of the Council of 18 June 2009 providing for minimum standards on sanctions and measures against employers of illegally staying third-country nationals (OJ 2009 L 168/24) European Parliament Economic and Social Committee et alii/and othen et sequentes/following et sequentes/and the following et cetera European Treaty Series European Union European Constitutional Law Review Regulation (EU) No 603/2013 of the European Parliament and of the Council of 26 June 2013 on the establishment of 'Eurodac' for the comparison of fingerprints for the effective application of Regulation (EU) No 604/2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person and on requests for the comparison with Eurodac data by Member States' law enforcement authorities and Europol for law enforcement purposes, and amending Regulation (EU) No 1077/2011 establishing a European Agency for the operational management of large-scale IT systems in the area of freedom, security and justice (OJ 2013 L 180/1) Statistical Office of the European Union Council Directive 2003/86/EC of 22 September 2003 on the right to family reunification (OJ 2003 L 251/12) Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family memben to move and reside freely within the territory of the Member States (OJ 2004 L 158m), as amended last by Regulation (EU) No492/2011 (OJ 2011 L 141/1) European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union

XXXI

list of Abbreviations Frontex Regulation (EU) 2019/1896 ..........................

former Frontex Regulation (EC) No 2007/2004 ................... . FYROM ............................ . GAMM ............................. . GATS ................................. . GAIT ................................ . GC ....................................... GC ...................................... . GC ...................................... . Geneva Convention ........ GLJ ...................................... HRL Rev............................ HRC .................................... Human Trafficking Directive 2004/81/EC .....

i.e ........................................ .

ibid. .................................... . ICC .................................... . ICC Statute ....................... ICJ ...................................... . ICJ Statute ........................ .

JCT ...................................... JCT Directive 2014/66/ EU ...................................... .

ICCPR ................................ ICESCR .............................. ICLQ ................................... ICON ................................. . ICRC .................................. . (JRL .................................... .

ILO ...................................... IM Rev ............................... IMO .................................... 10 ........................................

IOM ................................... . ISCED ................................ JEMS ······-··························· JCMS ................................. . JRSt. ................................... .

lit ........................................ Long-Tenn Residents Directive 2003/109/EC ...

XXX:11

Regulation (EU) 2019/1896 of the European Parliament and of the Council of 13 November 2019 on the European Border and Coast Guard and repealing Regulations (EU) No 1052/2013 and (EU)_ 2016/ 1624 (OJ 2019 L 295/1) Council Regulation (EC) No 2007/2004 of 26 October 2004 establishing a European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union (OJ 2004 L 349/1) Fonner Yugoslav Republic of Macedonia Global Approach to Migration and Mobility General Agreement on Trade in Services General Agreement on Tariffs and Trade General Court of the European Union (since 2009) Grand Chamber Geneva Convention See Refugee Convention German Law Journal Human Rights Law Review Human Rights Committee Council Directive 2004/81/EC of 29 April 2004 on the residence permit issued to third-country nationals who are victims of trafficking in human beings or who have been the subject of an action to facilitate illegal immigration, who cooperate with the competent authorities (OJ 2004 L 261/19) id est/that is/means ibidem/in the same place/the same International Criminal Court (Rome) Statute of the International Criminal Court International Court of Justke Statute of the International Court of Justice intra-corporate transferee Directive 2014/66/EU of the European Parliament and of the Council of 15 May 2014 on the conditions of entry and residence of thirdcountry nationals in the framework of an intra-corporate transfer (OJ 2014 L157/l) International Covenant on Civil and Political Rights International Covenant on Economic, Social and Cultural Rights International and Comparative Law Quanerly International Journal of Constitutional Law International Committee of the Red Cross International Journal of Refugee Law International Labour Organization International Migration Review International Maritime Organization International Organization International Organization for Migration International Standard Classification of Education Journal of Ethnic and Migration Studies Journal of Common Market Studies Journal of Refugee Studies litera/letter Council Directive 2003/109/EC of 25 November 2003 concerning the status of third-country nationals who are long-term residents (OJ 2004 L 16/44), as amended last by Directive 2011/51/EU (OJ 2011 L 132/1)

List of Abbreviations MBA ................................... MN·····-··························-·· MoU ···-····-······-··--········-··

NGO···············-··--············

No_ .................................... . OJ···········-··························· OSCE ...................·--·····.. ··· OUP ................................... . p.lpp. ·································· para ·············--············-······

paras ···········-······-······-······

Posted Workers Directive 96/71/EC ................... .

Refugee Convention ........

Rec.·····································

former Researchers Directive 2005/71/EC .....

REV············-······················

Return Directive 2008/ 115/EC .............................. .

SAR Convention ............. . Schengen Borders Code Regulation (EU) 2016/ 399 ······································

former Schengen Borders Code Regulation (EC) No 562/ 2006 ····················-·············· Schengen Implementing Convention ......·-······-...... Sea Borders Regulation (EU) No 656/ 2014 ····-·-···························

Seasonal Workers Directive 2014/36/EU ...............

SEC .................................... . senL -··········--····-······-······

Master of business administtation margin number/note Memorandum of Understanding Non-Governmental Organisation number Official Journal of the European Union Organisation for Security and Cooperation in Europe Oxford University Press page/pages paragraph paragraphs Directive 96/71/EC of the European Parliament and of the Council of 16 December 1996 concerning the posting of workers in the framework of the p~ion of services (OJ 1997 L 18/1), as amended last by Directive (EU) 2018/957 (OJ 2018 L 173/16) Geneva Convention relating to the Status of Refugees of 28 July 1951 as amended by the New York Protocol of 21 January 1967 Recommendation Council Directive 2005/71/EC of 12 October 2005 on a specific procedure for admitting third-country nationals for the purposes of scientific research (OJ 2005 U89/15)

revised Directive 2008/ l l 5/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals (OJ 2008 L 348/98) International Convention on Maritime Search and Rescue (I 979)

Regulation (EU) 2016/399 of the European Parliament and of the Council of9 March 2016 on a Union Code on the rules governing the movement of persons across borders (Schengen Borders Code) (OJ 2016 L 77/1), as amended last by Regulation (EU) 2019/817 (OJ 2019 L 135/27)

Regulation (EC) No 562/2006 of the European Parliament and of the Council of l 5 March 2006 establishing a Community Code on the rules governing the movement of persons across borders (Schengen Borders Code) (OJ 2006 L 105/1)

see Convention Implementing the Schengen Agreement Regulation (EU) No 656/2014 establishing rules for the surveillance of the external sea borders in the context of operational cooperation coordinated by the European Agency for the Management of Operational Cooperation al the External Borders of the Member States of the European Union (OJ 2014 Ll89/93) Directive 2014/36/EU of the European Parliament and of the Council on the conditions of entry and stay of third-country nationals for the purpose of employment as seasonal workers of 26 February 2014 (OJ 2014 L 94/375) Commission Documents which cannot be classified in any of the other series sentence

XXXIII

list of Abbreviations SlAC .................................. . Single Permit Directive 2011/98/EU .......................

SIS ........................·-············ SIS II Regulation (EC) No 1987/2006 .................. .

SIS Border Checks Regulation (EU) 2018/ 1861 .....................................

SIS Return Regulation (EU) 2018/ 1860 .................................... Social Security Coordination Regulation (EC) No 883/2004 .................... .

SOLAS Convention ._ ...... Students and Researchers Directive (EU) 2016/ 801 ..................................... .

former Students Directive 2004/ 114/EC .............

TEC .................................... . TEC (Nice version) ........ . TEC (Maasbicht version) ................................... . TEC (Amsterdam version) ................................... . Temporary Protection Directive 2001/55/EC .....

TEU ................................... . TEU (Nice version) ........ . TEU (Maasbicht version) ....................................

XXXIV

Special Immigration Appeals Commission Directive 2011/98/EU of the European Parliament and of the Council of 13 December 2011 on a single application procedure for a .single permit for third-country nationals to reside and work in the territory of a Member State and on a common set of rights for third-country workers legally residing in a Member State (OJ 2011 L 343/1) Schengen Information System Rqulation (EC) No 1987/2006 of the European Parliament and of the Council of 20 December 2006 on the establishment, operation and use of the second generation Schengen Information System (SIS II) (OJ 2006 L 381/4), with later amendments Regulation (EU) 2018/1861 of the European Parliament and of the Council of 28.11.2018 on the establishment, operation and use of the Schengen Information System (SIS) in the field of border checks (OJ 2018 L 312/14) Regulation (EU) 2018/1860 on the use of the Schengen Information System (SIS) for the return of illegally staying third-country nationals (OJ 2018 L 312/1)

Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security system (Tat with relevance for the EEA and for Switzerland) (OJ 2004 Ll66/ 1), as amended last by Regulation (EU) 2019/1149 (OJ 2019 Ll86/21) Safety of Life at Sea Convmtion (1974)

Directive (EU) 2016/801 of the European Parliament and of the Council of 11 May 2016 on the conditions of entry and residence of third-country nationals for the purposes of research, studies, training, voluntary service, pupil achange schemes or educational projects and au pairing (OJ 2016 Ll32/21) Council Directive 2004/114/EC of 13 December 2004 on the conditions of admission of third-country nationals for the purposes of studies, pupil exchange, unremunerated training or voluntary service (OJ 2004 L375/12) Treaty establishing the European Community EC Treaty (as amended by the Treaty of Nice) EC Treaty (as amended by the Treaty of Maasbicht) EC Treaty (as amended by the Treaty of Amsterdam) Council Directive 2001/55/EC of 20 July 2001 on minimum standards for giving temporary protection in the event of a mass influx of displaced persons and on measures promoting a balance of efforts between Member States in receiving such persons and bearing the consequences thereof (OJ 2001 L 212/12), as amended last by Commission Decision 2003/690/EC (OJ 2003 L 251/23) Treaty on European Union EU Treaty (as amended by the Treaty of Nice) EU Treaty (as amended by the Treaty of Maastricht)

List of Abbreviations TEU (Amsterdam version) ................................... . TFEU ................................. . UDHR ............................... . UK ...................................... . UN ..................................... .

UN CLOS .......................... . UNHCR ............................ . Visa Code Regulation (EC) No 810/ 2009 ···································· VIS ..................................... . VIS Regulation (EC) No 767/2008 .................... .

Visa List Regulation (EU) 2018/ 1806 ................................... .

former Visa List Regulation (EC) No 539/ 2001 ····································

EU Treaty (as amended by the Treaty of Amsterdam) Treaty on the Functioning of the European Union Universal Declaration of Human Rights United Kingdom United Nations United Nations Convention on the Law of the Sea (1982) United Nations High Commissioner for Refugees Regulation (EC) No 810/2009 of the European Parliament and of the Council of 13 July 2009 establishing a Community Code on Visas (Visa Code) (OJ 2009 L 243/1 ), as amended last by Regulation (EU) 2019/1155 (OJ 2019 L 188/25) Visa Information System Regulation (EC) No 767/2008 of the European Parliament and of the Council of 9 July 2008 concerning the Visa Information System (VIS) and the exchange of data between Member States on short-stay visas (VIS Regulation) (OJ 2008 L 218/60), with later amendments Regulation (EU) 2018/1806 of the European Parliament and of the Council of 14 November 2018 listing the third countries whose nationals must be in possession of visas when crossing the external borders and those whose nationals are exempt from that requirement (OJ 2018 L 303/39), as amended last by Regulation (EU) 2019/592 (OJ 2019 L1031/1) Council Regulation (EC) No 539/2001 of 15 March 2001 listing the third countries whose nationals must be in possession of visas when crossing the external borders and those whose nationals are exempt from that requirement (OJ 2001 L 81/1)

XXXV

PART A OVERARCHING THEMES Chapter 1. Constitutional Framework and Principles for Interpretation Select Bibliography ( - uo the aclected blbliognphlel for the lntrodactory cbapten oo aitry and bonier cootrola, uyhun and im.mlgntlon polkla): Acosta Arcaraw/Murphy (eds), EU Security and Jwtice Law (Han, 2014); Azoulai/de Vries (eds), EU Migration Law (OUP, 2014); Bast, Aufrnthaltsrecht und Migrationssteuerung (Mohr Siebeck, 2011); Boeles/den Heijcr/Lodder/Wouters, European Migration Law, 2nd edn (lntersentia, 2014); Otetail/De Bruycker/Maiani (eds), Reforming the Common European Asylum System (Bruylant, 2016); Costello, The Human Rights of Migrants and 8,efugees in European Law (OUP, 2016); Craig. EU Administrative Law, 3n1 edn (OUP, 2018); De Bruycker/De Somer/De Brouwer (eds), From Tampere 10 to Tampere 2.0 (EPC. 2019); Groenendijk, 'Recent Devdopments in EU law on Migration: The Legislative Patchwork and the Coun's Approach', EJML 16 (2014), p. 313-335; Funke, 'Primirrechtliche Grundlagen', in: Wollenschllger (ed), Enzyklopddie Europarteht, Band X, 2 nd edn (Nomos, 2021), § 16; Guild, Immigration Law in the European Community (Martinus Nijhoff, 2001); Guild/Minderhoud (eds), The First Decade of EU Migration and Asylum Law (Martinus Nijhoff, 2012); HailbroMer, Immigration and Asylum Law and Policy of the European Union (Kluwer, 2000); Icard (cd), Les Jlwc migratoires au sein de l'Union europlenne (Bruylant, 2018); Monar, The Area of Freedom, Security and Justice', in: von Bogdandy/Bast (eds), Principln of European Constitutional Law, 2nd edn (Han, 2009), p. 551-585; Majcher, The European Union Returns Dir«tiw and its Compatil,ility with International Human Rights Law (Brill Nijhoff, 2020); Moreno-Lax, Accessing Asylum in Europe (OUP, 2017); Papagianni, Institutional and Policy Dynamics of EU Migration Law (Maninus Nijhoff, 2006); Peen, EU Justice and Home Affairs Law. VoL 1, 4 th edn (OUP, 2016); Peers/Heivey/Kenner/Ward (eds), The EU CJaarter of Fundamental Rights. A Commentary (C.H. Beck/Han, 2014); Reneman, 'Asylum and Article 47 of the Chaner', in: Crescenzi/Forastiero/ Palmisano (eds), Asylum and the EU Charter of Fundamental Rights (Editoriale Scientifica, 2018), p. 59-78; Thym, 'Between • Administrative Mindset" and "Constitutional Imagination•. The Role of the Court of Justice in Immigration, Asylum and Border Control Policy', European law Review 44 (2019), p. 138-158; Thym, 'EU Migration Policy and its Constitutional Rationale', CML Rev. SO (2013), p. 709-736; Thym, 'A Bird's Eye View on ECJ Judgments on Immigration, Asylum and Border Control Cases', EJML 21 (2019), p. 166-193; Thym, Migrationsverwaltungsrecht (Mohr Siebeck, 2010); Thym, 'Supranational Differentiation and Enhanced Cooperation', in: Tridimas/Schiitze (eds), The Oxford Prindples of European Union Law. VoL I: The European Union Legal Order (OUP, 2018), p. 847-883; Walker (ed), Europe's Area of Freedom, Security and Justice (Han, 2004); Wiesbrock, Legal Migration to the European Union (Martinus Nijhoff, 2010).

Note that literature in the selected bibliography will be mentioned in an abbreviated version in the text below. referring to the authors(s) and a short title only. C.Onteot

mo.

I. General Remarks............................................................................................. 1. Evolution of the Treaty Regime.............................................................. 2. Objectives for Law-Making ..............·-··············-·······.............................. 3. Political Programming....................................... ·-····································· II. Overarching Principles.................................................................................. 1. Interpretation of EU Legislation ............................................................. 2. General Principles (including Proportionality)................................... 3. More Favourable National Provisions................................................... 4. Application in Domestic law .............................................·-····-·········... 5. Procedural Fundamental Rights Guarantees-............................·-·······

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Constitutional Framework and Principles for Interpretation III. Territorial Scope (Member State Participation) ...................................... I. Denmark....................................................................................................... 2. Ireland (and the United Kingdom)........................................................ IV. Human Rights and International Law....................................................... I. Charter of Fundamental Rights............................................................... 2. European Convention on Human Rights ............................................. 3. Refugee Convention and International Human Rights..................... 4. Other International Agreements .................·-·········································

38 40 42

46. 47 51 53 56

I. General Remarks 1. Evolution of the Treaty Regime

I

EU immigration and asylum legislation is nowadays adopted on the basis of Articles 77-80 TFEU. These provisions have been finnly embedded into the supranational legal order of the EU Treaties since the entry into force of the Treaty of Lisbon on l December 2009. Prior to this date, the situation was different. To a large degree, early EU immigration and asylum law had been dominated by ad hoc inter-governmental cooperation between some or all Member States outside of the supranational Treaty framework. Informal cooperation had existed since the early 1970s 1 and was subsequently transformed into binding international treaties such as the original Schengen Agreement of 1985, the Scbmgen Implementing Convention of I990, in which the Member States took the initiative and side-lined the supranational institutions (see Thym, Legal Framework for Entry and Border Controls, MN l), and the Dublin Convention of 1990 (see Thym, Legal Framework for EU Asylum Policy, MN l). More detailed rules were laid down in the decisions of the Schengen Executive Committee and other bodies established under said Conventions, where national interior ministers adopted multiple implementing decisions, intergovernmental resolutions or similar arrangements (this mode of decision-making was often criticised as intransparent and undemocratic2). These rules later became known as the 'Schengen Acquis' and formed the backbone of EU immigration and asylum law, which will be discussed in this volume. While the UK and Ireland remained outside the Schengen framework. most other Member States joined Schengen (see below MN 42). 2 In 1992, the Treaty of Maastricht established a framework for decision-making on justice and home affairs within the newly founded European Union, which retained intergovernmental characteristics. At the time, the EU Treaty only allowed for the adoption of non-binding joint positions or the elaboration of international treaties (not supranational directives and regulations) to be ratified by national parliaments. 3 They complemented informal cooperation, which had existed prior to the Treaty of Maastricht on a purely intergovernmental basis. 4 Rules on intergovernmental justice and 1 Cooperation within the so-called TREVI group, which focused on internal security in response to terrorist attacks and selected asylum matters; see the historic study of Oberloskamp, Codename TREV! (De Gruyter Oldenbourg. 2016); on political debates on the use of supranational EEC competences throughout the 1980s, see Papagianni, Institutional and Policy Dynamics, p. 3-16. 2 See Curtin/Meijers, 'The Principle of Open Government in Schengen and the European Union', CML Rev. 32 (1995 ), p. 391-442; for improvements after the integration into the EU legal order, see Thym, 'The Schengen Law: A Challenge for Legal Accountability in the European Union', ELI 8 (2002), p. 218, 221-233. 3 Cf. Article K.3(2) EU Treaty as amended by the Treaty of Maaslricht of 7 February 1992 (OJ 1992 C 191/1); for further comments, see McMahon, 'Maastticht's Third Pillar: Load-Bearing or Purdy Decorative?', Legal Issues of European Integration 22 (1995), p. 51-64. • See, e.g. on the so-called Ad-hoc group on immigration AHIC and the London Resolutions on asylum of 1992, Denza, The lntergo~rnmental Pillars of the European Union (OUP, 2002), ch. 3.

2

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Chp. I home affairs in the Maastricht Treaty proved rather inefficient and produced little legally binding output. 5 Nevertheless, the informal arrangements provided a bedrock of common standards which the EU institutions could build on once the Treaty of Amsterdam established a more robust Treaty base for migration and asylum law within the supranational EC Treaty. 6 To satisfy British, Irish and Danish demands, these states were granted an opt-out (see below MN 38-45). At the same time, the Schengen Acquis was incorporated into the EU framework, thereby giving more substance to the new Treaty bases (see Thym, Legal Framework for Entry and Border Controls, MN 2-3). Since the entry into force of the Treaty of Amsterdam, the EU institutions have been 3 allowed to adopt regular Community instruments, in particular directives and regulations, which can be directly applicable and benefit from primacy over domestic law in cases of conflict, in line with the established principles of the supranational legal order. Nonetheless, the transfer of immigration, asylum and border controls to the supranational 'first pillar' remained incomplete, since the Treaties of Amsterdam and Nice continued specific institutional arrangements that diverged from the supranational decision-making method. 7 This was deemed necessary in order to take account of the political 'sensitiveness' of matters which had hitherto belonged to the core issues of national sovereignty. 8 For that reason, the Council acted unanimously on proposals from the Commission or a Member State in most subject areas and the European Parliament was only consulted. Moreover, not all domestic courts could make preliminary references to the Court of Justice. 9 The Treaty of Nice, which entered into force in 2003, extended today's ordinary legislative procedure to some policy fields 10 and one year later the Council activated a bridging clause in the EC Treaty rendering more areas subject to qualified-majority voting in the Council and co-decision powers of the European Parliament. 11 However, full supranationalisation was brought about only by the entry into force of the Treaty of lisbon, which aligned immigration and asylum law with the orthodoxy of supranational decision-making. In the age of the Lisbon Treaty we may conclude that the former 'ghetto' 12 has been gentrified; Articles 77-80 TFEU are part and parcel of the supranational integration method. 13 The Treaty of Lisbon not only streamlined decision-making procedures; it also 4 consolidated the scope of Union competences through a substantive revision of today's Articles 77-80 TFEU in line with the proposal of the erstwhile Constitutional Treaty, which never entered into force. The European Convention, which drafted the Constitutional Treaty, was particularly active in the field of justice and home affairs and its s See Hailbronner, Immigration and Asylum Law. p. 47-52; Guild, Immigration Law, p. 255-273; and Monar/Morgan (eds), The Third Pillar of the European Union (Peter Lang. 1995). • Cf. Articles 61-69 EC Treaty as amended by the Treaty of Amsterdam of 2 October I 997 (OJ 1997 C 340/173); on the negotiating history, see Guild, Immigration Law, p. 295-311. 7 See Hailbronner, "European Immigration and Asylum Law under the Amsterdam Treaty', CML Rev. 35 (1998), p. 1047-1067; Papagianni, Institutional and Policy Dynamics, p. 25-51; and Labayle. 'Un espace de 1ibenc!, de securitc! et de justice', Revue trimestrielle de droit europeen 33 (1997), p. 813-881. 8 See Walker, 'In Search of the Area of Freedom, Security and Justice', in: ibid. (ed), Europe's Arca, p. 3, 16-20. • See Articles 67, 68 EC Treaty (OJ 1997 C 340/173), which also provided for some qualified-majority voting in the Council after a five-year-period; and Hailbronner, Immigration and Asylum Law, p. 92-103. 1°Cf. Anide 67(5) EC Treaty as amended by the Treaty of Nice of 26 February 2001 (OJ 2006 C 321E/ 37) and the Protocol (No 35) on Article 67 (OJ 2006 C 321E/317); for commenu see Papagianni, Institutional and Policy Dynamics, p. 88-100. 11 See Decision 2004/927/EC (OJ 2004 L 396/45); and Kuijpcr, The Evolution of the Third Pillar from Maastricht 10 the European Constitution: Institutional Aspects', CML Rev. 41 (2004), p. 609, 613-619. 12 Peers, EU /wtict and Home Affairs Law, I" edn (Longman, 2000), p. 2. " See Peers. EU Justice, p. 8-17; and Labayle, 'La nouvelle architecture de l'espace de libent!, de securitc! et de justice', in: Kaddous/Dony (eds), D'Amsterdam d Li.sbonne (Hdbing Lichtenhahn, 2010), p. 3-28.

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conclusions on immigration and asylum retain full relevance. since they were later integrated in the Lisbon Treaty without major changes.1 4 To understand the meaning of Treaty formulations such as 'integrated management system for external borders' (Article 77(2)(d) TFEU), it is helpful to consult the drafting documents of the European Convention. 15 The relevance of these debates for the scope of EU competences will be discussed in more detail in the introductions to the different chapters of this commentary dealing with border controls and visas (see Thym, Legal Framework for Entry and Border Controls, MN 7-24), immigration (see Thym, Legal Framework for EU Immigration Policy, MN 9-27) and asylum (see Thym, Legal Framework for EU Asylum Policy, MN 8-36). 2. Objectives for law-Making

Besides the consolidation of Union competences, the Treaty of Lisbon endorsed the self-sufficiency of EU immigration and asylum law in line with the reform steps agreed upon in the debate leading towards the Constitutional Treaty (see above MN 4). EU activity on the basis of Articles 77-80 TFEU is no longer presented as a spillover of the single market in line with the original assumption that the abolition of border controls within the Schengen area necessitated 'flanking measures' compensating Member States for the loss of control options at domestic borders (see Thym, Legal Framework for Entry and Border Controls, MN 3). Instead, immigration and asylum law was reaffirmed as a self-sufficient policy field in its own right within the area of freedom, security and justice,1 6 which Article 3(2) TEU lists among the central objectives of the European project. The concept of the 'area of freedom, security and justice' was first introduced first by the Treaty of Amsterdam and was later reinforced by the Treaty of Lisbon (in line with the Constitutional Treaty). It was conceived of as a grand design mirroring earlier projects to realise a single market or economic and monetary union, which were similarly based on a political vision to be realised through lawmaking, for which Treaty changes established new competences subject to streamlined decision-making procedures, thereby pushing the process of European integration into new directions. 17 In the case of justice and home affairs, the success of this venture was complicated by the difficulty that it was not immediately clear what exactly the 'area of freedom, security and justice' was meant to mean. 6 The conceptual autonomy of the area of freedom, security and justice confirms that EU immigration and asylum law does not replicate the mobility regime for Union citiz.ens. Two basic features define the new Treaty regime and illustrate that the area of freedom, security and justice differs from the historic template of Union citizenship:

5

14 Anides 77-80 TFEU correspond to Articles III-265-268 Treaty establishing a Constitution for Europe of 24 October 2004 (OJ 2004 C 310/1 ), which never entered into force; for the draft of the European Convention of 18 June 2018 see OJ 2003 C 169/1. 15 For details, see Ladenburger/Verwilghen, 'Policies Relating to the Area of Freedom, Security and Justice', in: Amato/Bribosia/de Wine (eds), Geneu et destinee de la Constitution europeenne (Bruylant, 2007), p. 743-772; Thym. The Area of Freedom, Security and Justice in the Treaty establishing a Constitution for Europe, WHI Paper 12/2004, http://www.whi-berlin.cu/docwnents/whi-paperl204.pdf [last accessed 1 June 2021 I; Labayle, 'L'espace de libene, 54!curite et justice dans la Constitution pour !'Europe', Revue trimestrielle de droit europeen 41 (2005), p. 437-472; Weber, 'Das Europiische Flilchtlings- und Migrationsrecht im Lichte des EU-Verfassungsentwurfs', in: Pache (ed), Die Europai.sche Union - Ein Raum der Freiheit, tier Sicherheit und des Rechts? (Nomos, 2005), p. 59, 74-89; and den Boer, 'The European Convention and Its Implications for Justice and Home Affairs Cooperation', in: Apap (ed), Justice and Home Affairs Law in the EU (Elgar, 2004), p. 121-13-4. 16 At a textual level, Article 67 TFEU defines the area of freedom, security and justice without reference to the concept of flanking measures (as did Article 61 lit. a EC Treaty-Amsterdam/Nice). 1, See Monar, The Area of Freedom, p. 554-555.

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Chp. I firstly, legislation concerning third country nationals is not usually based on individual rights to cross-border movement at constitutional level (see Thym, Legal Framework for EU Immigration Policy, MN 28-36}; secondly, justice and home affairs are typified by a collection of diverse objectives laid down in the EU Treaties, which were introduced by the Treaty of Lisbon. The abolition of internal borders is complemented by 'enhanced measures to combat illegal immigration' 18, which • nevertheless, must be in 'compliance with the principle of non-refoulement.' 19 Generally speaking. 'the efficient management of migration flows' 20 is to be accompanied by 'fair[ness] towards third country nationals.' 21 The combination of three broad theoretical concepts, which can have diverse - and potentially contradictory - meanings depending on the context and the ideological predisposition in the notion of 'area of freedom, security and justice' reinforces the underlying uncertainty. 22 These objectives may be summarised under the heading of 'migration governance' - a choice of terminology recognising that the migration control perspective of state authorities should ideally be accommodated with the legitimate interests of migrants.23 Given the multitude of policy objectives whose interaction needs to be adjusted in the legislative process the abstract designation of 'justice and home a.ffain' might be more appropriate than the grand slogan of an 'area of freedom, security and justice', which hints at an underlying normative vision that might not exist. The EU legislature benefits from principled discretion when realising the Treaty 7 objectives. The EU institutions are bound to promote the Treaty objectives, even if they do not regularly translate into judiciable yardsticks for secondary legislation 24 - mirroring the constitutional status of the overarching aims in Articles 4 and 21 TEU. Academics may criticise the predominance of securitarian approaches focusing on migration control, 25 but such criticism remains a conceptual critique with no immediate legal implications as long as it does not fall foul of judiciable constitutional requirements, such as human rights. This principled discretion on the side of the legislature in realising the Treaty objectives is confirmed, within the area of freedom, security and justice, by the inherent contradictions between different objectives: judges are badly placed to decide how to balance the 'fair treatment'26 of third country nationals and 'enhanced measures to combat illegal immigration' 27 short of human rights standards, which individuals can rely on in courts (see below MN 46-55). Moreover, EU immigration and asylum law is not only bound to promote the objectives laid down in Articles 77-80 TFEU, since it must also contribute to the realisation of general objectives, such as 'full employment' (Article 3(1) TEU), which arguably supports 11

Article 79(1) TFEU. Article 78(1) TFEU. lO Article 79(1) TFEU. 21 Article 67(2) TFEU; similarly, Artide 79( I) TFEU; for the meaning of the different Treaty o b ~ see, again, Monar, The Area of Freedom, p. 552-562; Costello, 'Administrative Governance and the Europeanisation of Asylum and Immigration Policy', in: Hofmann/Turk (eds), EU Administrative Governance (Elgar, 2006), p. 287, 289-293; and the introductory chapters on entry and border controls, immigration and asylum in this Commentary. 22 See Monar, The Area of Freedom, p. 552-562; and Walker, 'In Search of the Area of Freedom, Security and Justice', in: ibid. (ed), Europe's Area, p. 3, 5-10. 23 See Thym, EU Migration Policy, p. 718-723. 2~ See Thym. Migrationsverwaltungsrecht, p. 96-99; and Bast, Aufenthaltsrecht, p. 141-144. 21 By way of example, see Guiraudon, 'European Integration and Migration Policy', JCMS 38 (2000), p. 251-271; Acosta Arcara.zo/Martire, Trapped in the Lobby: Europe's Revolving Doors and the Other as Xenos', EL.Rev. 39 (2014), p. 362-379. 26 Article 67(2) TFEU. 21 Article 79(1) TFEU; emphasis added. 19

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restrained rules on the access of lesser qualified migrants for as long as unemployment remains ubiquitous among Union citizens. 28 The same applies to the objectives of external action, which include, among other things, the eradication of poverty in developing countries. 29 7a Among the objectives listed in the EU Treaties, the 'fair treatment of third country nationals' (Article 79(1) TFEU; similarly, Article 67(2) TFEU; French: traitement equitable; German: angemessene Behandlung) deserves closer attention, since it takes up a basic notion of social justice. While the formulation sounds grand at first reading. closer inspection advises caution. Firstly, the provision presents itself as a negative comparison with the 'equal treatment' of Union citizens, thereby signalling that primary law allows for a lesser degree of protection for third country nationals (see Thym, Legal Framework for EU Immigration Policy, MN 33-36). 30 The expression was used first in the conclusions of the Tampere European Council (see below MN 8) that also promised more advanced rights for long-term residents, while employing 'fair treatment' as the standard formula for other third country nationals who reside legally. 31 Historically, the term 'fair treatment' resonates with customary international rules on the treabnent of foreigners, more specifically adequate standards for compensation.32 Secondly, the meaning of 'fairness' is, like 'justice'33 , notoriously difficult to determine. John Rawls may have built a theory of justice around the concept of 'fairness':M, which, nonetheless, remains an essentially contested concept. To paraphrase constitutional theorist Jeremy Waldron: there are many of us and we disagree about fairness. 35 Thirdly, the concept of fairness may indicate that the Treaties aim at a level of protection that transcends the minimum requirements of fundamental rights. 36 Nevertheless, it will be difficult to deduct 211 With regard to third countries, the objective of combating poverty (Article 21(2)(d) TEU) calls for measures to counter the 'brain drain' of highly qualified migrants from developing countries. :19 Cf. Article 21(2) TEU, which can be used as a legal argument to prevent 'brain-drain.' JO Similarly on the implicit distinction from Union citizens, see Wilderspin. 'Article 79 TFEU', in: KeUerbauer/Klamenffomkin (eds), The EU Treaties and the Charter of Fundamental Rights. A Commentary (OUP, 2019), para 8; Funke, Primmechtliche Grundlagen, paras 13, 58; Iglesias Stnchez, 'Constitutional Identity and Integration: EU Qtizenship and the Emergence of a Supranational Alienage Law', GLJ 18 (2017), p. 1797, 1803; and Sternffohidipur, 'Migration von Drittstaatsangchorigen', in: von Amauld (ed), Enzyklopadie Europarecht. Band X: Europaische Auflenbeziehungen (Nomos. 2014), § 14 para 122. 31 Sec European Council, Presidency Conclusions of the Meeting on 15/16 October 1999 in Tampere, paras 18, 21; for further comments see Thym, Long-Term Residents Directive 2003/109/EC, Article 1 MN8. 32 Other language venions demonstrate a direct linguistic similarity with the so-called Hull Doctrine requiring 'adequate' compensation in case of expropriation, which similarly aimed at different standards for nationals and foreignen, albeit under reverse circumstances, since the objective was to treat foreigners better than nationals who often received nothing in case of expropriation; I would like to thank Sara Iglesias Sanchez for pointing out the similarity to me; on the background, see Jennings/Watts, Oppenheim 's International Law,~ edn (OUP, 1992), p. 910-926. 33 Note that the English version employs the normative term 'justice' (French: justice), while other language versions use the more technical word 'law' (German: Recht; Dutch: rrcht); be it as it may, there was no common widentanding about what the highly abstract term was meant to express; see Monar, The Area of Freedom, p. 560-562. 34 Sec Rawls, A Theory of Justice (Harvard UP, 1971). JS Cf. the first phrase of Waldron, Law and Disagreement (Qarendon, 1999), which refen to 'justice', not 'fairness.' 16 See Thym, Citizens and Foreigners in EU Law, ELJ 22 (2016), p. 296, 306-311; McCormack-George, 'Equal Treatment of Third-Country Nationals in the European Union: Why Not?', EJML 21 (2019), p. 53, 65; and Groenendijk. 'Legal Migration', in: De Bruycker et al., From Tampere 20, p. 61, 64; in any case, it cannot be understood as an authorisation to establish standards that are lower than the requirements of the Charter, as suggested by Frillriksd6ttir, What Happened to Equality? (Brill/Nijhoff, 2017), p. 327.

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Chp. I judiciable standards from the abstract notion of fairness beyond the legally binding minimum requirements of human rights law. 37 The legislature has a principled discretion when determining what it considers fair and how it relates to other Treaty objectives (see above MN 7).

3. Political Programming

Artide68 TFEU The European Council shall define the strategic guidelines for legislative and operational planning within the area of freedom, security and justice. In the initial stages of EU legislative harmonisation, the area of freedom, security 8 and justice established by the Treaty of Amsterdam was in search of an overarching rationale giving substance to the abstract notion of 'freedom, security and justice' (see above MN 6). An attempt to give justice and home affairs a political sense of direction was made by the programmes put forward by the European Council on the occasion of its meetings in Tampere (1999), 38 The Hague (2004), 39 Stockholm (2009)-40 and Ypres (2014) 41 , which were complemented by policy-specific guidelines, the intergovernmental Pact on Immigration and Asylum of 2008,42 the European Agenda on Migration of 2015 43 or the 'New Pact on Migration and Asylum' of 2020. 44 The theoretical underpinning of these programmes was met with criticism due to their lack of conceptual coherence across policy fields, 45 but the programmes served important functions from a political perspective. They served as points of reference and provided political backing by heads of state or government for those supporting common action, thus helping to overcome resistance among domestic actors, when the European Council 'urged' hesitant interior ministers to 'speed-up' legislation. 46 Article 68 TFEU, which explicitly mentions the strategic programming 37 Similarly, Funke, Primiirrechtliche Grundlagen, pan 22; see, however, Kosinska/Mikolajczyk., 'Does the Right to Migration Security Already Exist?', EJML 21 (2019), p. 83, 106-109; Herlin-Karnell, The Constitutional Structure of Europe's Area of 'Freedom, Security and Justice' and the Right to /wti.fication (Hart, 2019); and McCormack-George, 'Equal Treatment of Third Country Nationals in the European Union: Why Not?', EJML 21 (2019), p. 53, 65. J8 See the European Council, Presidency Conclusions of the Meeting on 15/16 October 1999 in Tampere; on the basis of the initial 'Vienna Action Plan' (OJ 1999 C 19/1). 39 The Hague Programme Strengthening Freedom, Security and Justice in the European Union (OJ 2005 C 53/1). 40 The Stockholm Programme: An Open and Secure Europe Serving and Protecting the Citizens (OJ 2010 C 115/1). 41 European Council, Conclusions of the Meeting on 26/27 June 2014 in Ypres, doc. EUCO 79/14, pans 1-1-3. u See Council doc. 13440/08 of 24 September 2008, which was spearheaded by France, Germany and the United Kingdom and reinvigorated the European debate. It was criticised for its focus on the perspective of interior ministers; cf. O'Dowd, 'Mutual Recognition in European Immigration Policy', in: Goudappel/Raulus (eds), The Future of Asylum in the European Union (Springer, 2011), p. 73, 77-78. 0 Commission Communication, COM(2015) 240 of 14 May 2015, which, as a Commission, had not officially been coordinated with the Council or the European Parliament. 44 See Commission Communication, COM(2020) 609 and the accompanying legislative proposals. which, similarly, did not necessarily reflect the Council's or the Parliament's view. ' 5 By way of example, see Monar, The Area of Freedom, p. 556-561. 46 See, e:g., the Seville European Council of 21/22 June 2002, Presidency Conclusions. Council doc. 13463/02 of 24 October 2002, para 37; see also Papagianni, Institutional and Policy Dynamics, p. 215-220.

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function, serves as a reminder of the initial significance of the European Council in the early 2000s. 47 8a It remains uncertain whereas the European Council stands ready to continue the political programming or whether the - comparatively meagre - Ypres conclusions effectively marked the endpoint The five-year cycle was not taken up in 2019, unless one counts the 'New Strategic Agenda 2019-2024'48 as a replacement, even though it covered diverse policy areas, not only justice and home affairs, and dealt with entry control, immigration and asylum on half a page only. Legally, it can be maintained that these abstract guidelines are sufficient.49 It could even be argued that the 'strategic guidelines' need not be enshrined in a single document, but can be issued on a case-by-case basis whenever questions require the attention of heads of state or government. 50 Apparently, the Council discussed more detailed draft strategic guidelines during March 2020, but failed to reach an agreement due to the opposition of two Member States.s 1 It is plausible that parallel debates within the Commission about the 'New Pact on Migration and Asylum' complicated an agreement among the Member States, since doing might have required the Council to deal with highly sensitive questions like refugee relocation. Sb Throughout the years, the focus of attention shifted in response to wider political and social developments in Europe and beyond. Such change of direction need not present itself as a disadvantage, since it is the purpose of strategic guidelines to 'define the general political directions and priorities's 2, which can evolve over time.s1 While the initial Tampere Programme was full of youthful enthusiasm mirroring the optimism of the period after the end of the Cold War, 54 The Hague Programme was dominated by the fight against terrorism and the Stockholm Programme made a deliberate effort, after heated political debates,ss to occupy a middle ground between security and control imperatives and human rights concerns in light of the new provisions of the Treaty of Lisbon. 56 By contrast, the Ypres Guidelines were noticeably shorter and comprised only a few paragraphs with little substantive guidance,s7 while the Strategic Agenda 2019-2024 covers diverse policy areas and deals with entry control, immigration and asylum on half a page. 58 47

Like the other Treaty provisions on the area of freedom, security and justice, Article 68 TFEU was

drafted in the early 2000s in the run-up to the erstwhile Constitutional Treaty (see above MN 4). 41

European Council, A New Strategic Agenda 2019-2024, Anna to doc. EUCO 9/19 of 20 June 2019,

p. 7. •• Note that Article 68 TFEU specifies neither the degree of detail nor the five-year time-cycle. 50 Note that the drafting history with its orientation at the historic model of the Tampere Conclusions argues against such an interpretation. si See the outcome of the 3756• Council Meeting. Council doc. 6582/20 of 13 March 2020, p. 3. si Article IS( I) TEU defining the general function of the European Council SJ By contrast, Treaty rules on monetary union and the single market have been criticised for enshrining policy preferences in primary law, thereby frustrating calls for a political change of direction; see Scharpf, 'The European Social Model', JCMS 40 (2002), p. 645-670; and Grimm, 'The Democratic Costs of Constitutionalisation. The European Case', ELJ 21 (2015), p. 460-473. 54 For a generic statement, see Francis Fukuyama, The End of History and the uut Man (Free Press, 1992). 55 See Carrera, 'The Impact of the Treaty of Lisbon over EU Policies on Migration, Asylum and Borders', in: Guild/Minderhoud (eds), The First Decade, p. 229, 239-243. 56 For an overview, see Murphy/Acosta Arcarazo, 'Rethinking Europe's Freedom, Security and Justice". in: ibid., EU Security, p. I, 4-9; Kostakopoulou/Acosta Arcarazo/Munk. 'EU Migration Law. The Opportunities and Challenges Ahead", in: Acosta Arcarazo/Murphy, EU Security, p. 129, 133 report that

the Council replaced the term 'fairness' with 'well-managed' in the preparation of the Stockholm Programme (see below MN 8). s7 See De Bruycker, 'The Missed Opportunity of the "Ypres Guidelines" of the European Council Regarding Immigration and Asylum', EUI Migration Policy Centre Blog on 29 July 2014. 511 See, again, European Council, A New Strategic Agenda 2019-2024, Annex to doc. EUCO 9/19 of 20 June 2019, p. 7.

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Chp. 1 The politkal programmes have lost their practical impact. Of course, ~ontroversial topics, such as the reform of the rules on asylum jurisdiction, may still be taken up at the highest political level, irrespective of whether they are addressed in medium-term 5 year programmes. From a legal perspective, the guidelines are political in the sense that institutions are 9 free to deviate from the contents in the legislative procedure; it would distort the institutional balance if the strategic guidelines under Article 68 TFEU prevented the Commission, the European Parliament and the Council from finding a different solution in the ordinary legislative procedure. 59 An example is the drafting history of the Long-Term Residents Directive, which departed from the political guidance by the European Council in Tampere when it laid down rules that were considerably stricter than the free movement of EU citizens.60 Doctrinally, the political programmes are political in nature and do not commit the other institutions legally, they are, therefore, less relevant than the Treaty objectives introduced by the Treaty of Lisbon, which are binding as a matter of principle, even though the EU institutions have much discretion in deciding how to implement them (see above MN 7). The limited legal weight of the political programmes does not detract from their political significance, if heads of state or government help overcoming political stalemate (see above MN 8). Moreover, earlier programmes cannot be relied upon any longer after the expiration of the period for which they had been adopted. They may serve, however, as a contextual element elucidating the telos and the drafting history of legal instruments adopted at the time (see Thym, Long-Term Residents Directive 2003/109/EC, Article l MN 8-ll). The loss of significance over demonstrates that the area of freedom, security and justice has reached a state of maturity. Change remains possible, but the various legislative instruments, which are commented upon in this volume, are now at the centre of attention. Abstract political programming has lost its relevance.

II. Overarching Principles 1. Interpretation

of EU Legislation

Immigration and asylum regulations and directives are interpreted in light of the 10 same principles that apply in other areas of EU law. These methods of statutory interpretation are well known in continental civil law jurisdictions, while experts socialised in common law countries are not always accustomed to them. 61 They are described by the ECJ in general terms: 'In accordance with the settled case-law of the Court, in interpreting a provision of EU law it is necessary to consider its wording, its origin, its context and the objectives punued by the legislation of which it forms part.' 62 Experts with a background in international law should recognise that the ECJ

has emphasised for decades that the supranational legal order created a legal system and is not subject, therefore, to the interpretative principles of public international law. 63 Closer inspection of ECJ practice demonstrates an emphasis on statutory interpretation "Similarly, sec Miiller-Graff, 'Article 68 TFEU', in: Pechstein/Nowak/Hiide (eds), Frankfurter Kommentar (Mohr Siebeck, 2017), para 4. 60 See Thym, Long-Term Residents Directive 2003/109/EC, Anicle l MN 9, 11. 61 On the civil law background. sec van Gestd/Micklitz, 'Why Methods Matter in European Legal Scholarship". ELJ 20 (2014), p. 292-316. 61 EC), Hassan, C-647116, EU:C:2018:368, para 40. 63 Cf. EC), Costa v. E.N.E.L, 6164, EU:C:1964:66; nevertheless, there is a certain parallelism between the interpretative principles of international treaty law and EU practice, in particular concerning the predominance of teleological interpretation prescribed in Articles 31-32 Vienna Convention on the Law

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with many judgments elaborating on the wording or general scheme of secondary legislation over dozens of paragraphs,64 while the earlier tendency for dynamic interpretation, which had defined the ECJ case law on primary law, has a lesser weight in migratory matters. 65 Nevertheless, the emphasis on statutory interpretation must be combined with mandatory respect for constitutional requirements, such as human rights or international law (see below MN 46-59) as well as the unwritten general principles of Union law (see below MN 21-27). When interpreting secondary legislation, the institutional practice of the ECJ supports cross-fertilisation between different areas of Union law: there are no specialised chambers dealing with immigration or asylum; judges may decide cases on asylum procedures, tax policy, environmental regulation or consumer protection during the same week. 66 The different chapters of this Commentary explore the interpretation of EU immigration and asylum instruments on the basis of the above-mentioned principles, including in situations where there is currently no ECJ case law on a specific question. 11 Dual indeterminacy of the supranational legal order and the political process mmpllcates the operatiooalisation of the interpretative standards in practice. As a supranational and multilingual order, EU law often lacks the precision of domestic legal systems where certain terms often have a precise doctrinal meaning that has been historically constructed.67 Experts with a background in domestic legal systems mirroring the rich German or Italian tradition will find the ECJ's approach a rough imitation of complex doctrinal arguments developing theoretically embedded legal concepts beyond a simple resolution of individual cases.68 By contrast, observers with a background in common law may be perplexed by the sincerity of the interpretative exercise. It is not only the ECJ practice which complicates the interpretative exercise. Debates in the Council and between the EU institutions tend to follow the tradition of diplomatic negotiations resulting in open compromise formulae instead of clear guidance. 69 Poor drafting and lack of coordination between working parties can further entail that EU immigration and asylum legislation occasionally employs similar terminology and concepts, albeit with separate meanings in different legislative acts. 70 In Mengesteab, for instance, the ECJ had to decide whether the initial asylum request with the border police or the official application with migration authorities defined time-limits under the Dublin system. After careful inspection of various methods of interpretation, including preparatory acts, the Court did not hide its apparent frustration when it concluded that the material 'does not appear to be conclusive.'7 1 of Treaties; but see de Wine. 'Retour a • Costa • - La primaute de droit communautaire ii la lumiere du droit international', Revue trimestrielle de droit europeen 20 (1984), p. 425-454. 64 See Thym. Bird's Eye View, p. 183-184. os See Thym, "Administrative Mindset" and "Constitutional Imagination", p. 148-157. 66 See Thym, Bird's Eye View, p. 168-169, 175; and Groenendijk, Recent Developments, p. 329. 67 On the relative doctrinal weakness of EU law, see Poiares Maduro, 'Interpreting European Law', Eur. J. Legal Stud. 2 (2007), Issue 2, p. I, 9-10; and von Danwitz, 'Funktionsbedingungen der Rechtsprechung des Europaischen Gerichtshof.s', Europarecht (2008), p. 769, 780-782. 61 See ltzcovich, 'The Interpretation of Community Law by the European Court of Justice', GLJ 10 (2009). p. 537-561; and Bomhoff, 'Perfectionism in EU Law', The C.ambridge Yearbook of European Legal Studies 12 (2014), p. 75-100. 69 See Sharpston, 'Transparency and Clear Legal Language in the European Union', The Cambridge Yearbook of European Legal Studies 12 (2009-2010), p. 409, 411-412. 70 See Hecker, 'Zur Europaisierung des Ausliinderrechts', Zeitschrift fiir Ausl.inderrecht (201 I), p. 46, 48-49. 7 1 ECJ. Mengesteab, C-670/16, EU:C:2017:587, para 100; and Thym, 'Judicial Maintenance of the Sputtering Dublin System on Asylum Jurisdiction', CML Rev. 55 (2018), p. 549, 558-560.

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Chp. I While the Court of Justice has acquired a certain celebrity for dynamic interpretation, 12 it should be noted that the most notorious examples of dynamic interpretation concerned essential components of the integration project, such as the primacy of Union law over domestic law, the realisation of the single market or the promotion of Union citizenship. By contrast, immigration and asylum law does not necessarily benefit from a similar constitutional predominance, since Treaty rules on the area of freedom, security and justice embrace diverse and occasionally conflicting objectives (see above MN 6-7a). It is convincing. therefore, that the ECJ exhibits more sensitivity towards the choices of the EU legialature in areas where the Treaties award the EU institutions greater leeway. In the case law on regulations and directives on migration, the majority of judgments is based on the wording, general scheme, objectives or other interpretative principles mentioned above - a tendency I described as the 'administrative ntlndset' of judges in Luxembourg.72 The Court's approach towards secondary legislation is, from a methodological perspective, more conservative than towards Treaty law, even though statutory interpretation need not result in pro-state outcomes. 73 The legislature holds the primary responsibility to define the contents of legislation in the ordinary legislative procedure on the basis of Articles n-80 TFEU. A core aspect of many ECJ rulings on migration is the assumption 'that, in 12a accordance with the need for a uniform application of EU law and the principle of equality, a provision of EU law which makes no express reference to the law of the Member States for the purpose of determining its meaning and scope must normally be given an autonomous and uniform interpretation throughout the European Uoion.'74 By emphasising the autonomous self-sufficiency of supranational rules towards domestic law, judges in Luxembourg defend the effet utile of supranational rules vis-avis national legal systems (see below MN 16). In the context of migration, it is usually relied upon by those challenging domestic practices, i.e. it is often the position of migrants which is vindicated when the ECJ insists on uniform interpretation. 75 The autonomy argument applies to overarching themes, such as the notion of 'public policy' (see Thym, Legal Framework for EU Immigration Policy, MN 42a-42d), as well as distinct questions which are specific to individual articles, such as the meaning of 'unaccompanied minor' to decide whether the application of family reunification rules depends on the age at the time of the initial asylum application or the subsequent administrative decision (see Bornemann/Arevalo, Family Reunification Directive 2003/ 86/EC, Article 4 MN 21). 76 It should be noted that uniform interpretation does not preclude a leeway of the Member States when applying supranational rules whenever autonomous interpretation supports that outcome. 77 Moreover, autonomy has an 'external' dimension,78 if the meaning of Union law differs from similar concepts under public international law, such as in the case of subsidiary protection (see Thym, Legal

See Thym, "Administrative Mindset" and "Constitutional Imagination", p. 148-157. See Thym, Bird's Eye View, p. 184-186. 74 ECJ, Belgischer Staat, C-133/19, C-136/19 & C-137/19, EU:C:2020:577, para 30; by contrast, in cases of references to domestic law the ECJ will usually refrain from defining the meaning, see ECJ, Kamberaj, C-571/10, EU:C:2012:233, para 77. 7s See Acosta Arcarazo, 'Civic Citizenship Reintroduced?', ELI 21 (2015), p. 200, 213-216. 76 ECJ, A & S, C-550/16, EU:C:2018:248, paras 37-64 opted for the former in the absence of clear statutory prescriptions. 77 By way of example, see ECJ, Bevandorlasi Menekiiltugyi Hivatal. C-519/18, EU:C:2019:1070, paras 44-45, 55-59; ECJ, Ben Alaya, C-491/13, EU:C:2014:2187, paras 23-27, 33; and ECJ, Saciri et aL, C-79/13, EU:C:2014:103; paras 47-51. 71 See Klamert, 'The Autonomy of the EU (and of EU Law)', EL Rev. 42 (2017), p. 815, 819-823; and Thym, Bird's Eye View, p. 1n-178. 72

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Framework for EU Asylum Policy, MN 21; and Storey, Asylum Qualification Directive 2011/95/EU, Article 15 MN 12-14). 12b While the wording usually serves as a starting point, it will rarely resolve the dispute at hand as a result of poor legislative drafting and the indeterminacy of the supranational legal order, which mostly lacks predefined doctrinal structures in the tradition of civil law jurisdictions (see above MN 11 and below MN 18). Moreover, multilingual character of Union law can complicate the interpretative exercise whenever different language veniom support diverging outcomes. According to settled case-law, 'where there is divergence between the various language versions of an EU legislative text, the provision in question must be interpreted by reference to the general scheme and the purpose of the rules of which it forms part.'79 Notwithstanding the factual predominance of English and French as the main working languages of the EU institutions and the Court of Justice, which holds its internal deliber~ in French, all language versions have the same legal signi.ficance.80 The same applies to the literature. Academics and judges should make an effort to build bridges between transnational debates in English and the enduring

domestic discuuions within the Member States in the respective national languages, 81 which the contributions to this commentary aim to integrate into their analysis. Commentators should not mistake the transnational debate in English for the only or main forum for legal debates about EU immigration and asylum law.82 13 Questions of interpretation frequently arise with regard to the drafting history of a directive or regulation. In earlier case law, the Court had generally attributed limited importance to the legislative history. 83 Even interpretative declarations of the Member States were considered irrelevant in light of the primary importance of the fundamental freedoms, 114 which realise the central Treaty concepts of the single market and Union citizenship (see above MN 12). In the area of freedom, security and justice, the Court takes the drafting history more seriously. Judgments regularly elaborate on 'the origin'85 of the rule under consideration. 86 It is recognised as an argument amongst others; in contrast to public international law, the preparatory work is not just supplementary. 87 In practice, digitalisation facilitates consideration of the drafting history when information on the position of various actors is easily accessible through the EUR-Lex portal of the EU institutions; 88 preparatory documents of the Council's working party can be 79 ECJ, Stadt Frankfurt am Main, C-18/19, EU:C:2020:51 I. para 33 with regard to Article 18 Return Directive. ., See Anick 342 TFEU; and Regulation No I detennining the languages to be used by the European Economic Community, Official Journal English Special Edition, Ser. I Vol. 1952-1958, p. 59. 81 See Thym, The Limits of Transnational Scholarship on EU Law. A View from Germany, EU! Working Paper LAW 2016/14, p. 2-16, available online at https://papers.ssm.corn/so13/papers.cfm? abstract_id=2785668 [last acce55ed I June 2021112 Not least as a result of Brexit and since Ireland does not participate in many immigration and asylum law initiatives; see below MN 42-45. 13 See Wendel, 'Renaissance der historischen Audegungsmethode?', Zeitschrift fur auslandischcs offentlichcs Recht und Vollr.errecht/Heidelberg Journal of International Law 68 (2008), p. 803, 807-811. 84 See, in the context of the free movement of EU citizens (not: third country nationals), ECJ, Antonissm, C-292/89, EU:C:1991:80, paras 17-18. 85 ECJ, Hassan, C-647/16, EU:C:2018:368, para 40. M By way of eumple, see ECJ, Orsz.dgos ldtgenrendtszeti F"igazgat6sag Dtl-alfdldi Regiondlis lgazgat6sag, C-924/19 PPU & C-925/19 PPU, EU:C:2020:367, para 263; ECJ, G.S. & V.G., C-381/18 & C-382/18, EU:C:2019:1072, para 59; ECJ, Hassan, C-647/16, EU:C:2018:368, paras 44-46; ECJ, Mengesteab, C-670/ 16, EU:C:2017:587, para 90; and ECJ, N, C-601/15 PPU, EU:C:2016:84, para 53. 17 Cf. Article 32 Article Vienna Convention on the Law of Treaties (adopted 23 May 1969, entered into force 27 January 1980) UNTS Vol. 1155, p. 331. 11 In the 'procedure' section, the EUR-Lex ponal offers detailed information for each legislative act, which may be identified through the EUR-La advanced search form (see hnp://eur-lex.europa.eu/

12

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Chp. 1 found via the public register of Council documents,89 at least once negotiations have been conduded. 90 This information is particularly useful when addressing questions that have not yet been discussed in ECJ case law - as many chapters to this Commentary illustrate. The newly found prominence of historic interpretation extends to the EU Treaties mutatis mutandi, since the drafting documents of the rules on immigration and asylum in the Treaty of Lisbon and the European Convention preparing the Constitutional Treaty (see above MN 5) are easily accessible online.91 Article 52(7) of the Charter expressly obliges judges at national and European level to give due regard to the official explanations. 92 In the field of asylum and immigration, human rights and international legal 14 standards have an enduring influence on the interpretation of EU law. In so far as public international law is concerned, the ECJ maintains that EU law must be interpreted in light of the international legal obligations of the European Union as a matter of principle, although there are some caveats concerning the direct applicability of international law as well as obligations of the Member States to which the EU has not signed up (see below MN 58-59). In practice, the Geneva Convention holds a special position which is confirmed by Article 78( l) TFEU (see Thym, Legal Framework of EU Asylum Law, MN 8, 47). When it comes to human rights, Article 6 TEU leaves no doubt that they must be respected; secondary legislation can be struck down or interpreted in conformity with human rigbts,93 as the ECJ reaffirmed in a number of cases on immigration and asylum. 94 In practice, the European Convention of Human Rights plays a central role, since it informs the interpretation of the EU Charter (see below MN 49). There have been cases, however, where judges in Luxembourg preferred to focus on the general scheme (see above MN 12) instead of embarking on a human rights analysis, especially in situations where the human rights dimension did not directly influence the outcome of the case.95 Moreover, experts on immigration and asylum should recognise that the ECJ pays due regard to other constitutional principles, such as the division of competences between the European Union and the Member States,96 which may entail that the assessment of national laws beyond the scope of EU advanad-search-form.html) or via the subsection on 'procedure' of the corresponding preparatory COM docwnent, available through the Commissions' search form(see https://eur-lex.emopa.eu/collection/eulaw/pre-acts.html; both accessed last on 1 June 2021 ). 89 Available online at https://www.consilium.europa.eu/en/documents-publications/public-regi.ster/publicregister-search [last accessed 1 June 2021); I recommend to search via the document number, e.g. 12026/20. 90 Beforehand, they are often leaked on the Statewatch website, online at www.statewatch.org [last accessed 1 June 2021 ]. 91 For the European Convention, see http://european-convention.europa.eu; and for the IGC for the Lisbon Treaty, see http://www.consilium.europa.eu/en/docurnents-publications/intergovemmental-conferences [both accessed last on I June 20211; for funher reflection, see Craig. 'The Detailed Mandate and the Future Methods of Interpretation of the Treaties', in: Pernice(ranchev (eds), Ceci n'est pas une Constitution - Constitutionalisation without a Constitution? (Nomos, 2008), p. 86-98. 92 See the Explanations Relating to the Charter of Fundamental Rights (OJ 2007 C 303/17). 0 Similarly, Groenendijk, Recent Developments, p. 330; and Gro1l, 'Europiiische Grundrechte als Vorgaben fur das Einwanderungs- und Asylrecht', Kritische Justiz (2001), p. 100-111. 04 Cf., by way of example, ECJ, E, C-635/17, EU:C:2019:192, paras 55; ECJ, Gnandi, C-181/16, EU: C:2018:465, paras 54-56; ECJ, X, Y & Z, C-199/12 & C-200/12, EU:C:2013:720, para 40; and ECJ, Kamberaj, C-571/10, EU:C:2012:233, para 34. ,s Cf., by way of a.ample, the silence on Article 8 ECHR in ECJ, K & B, C-380/17, EU:C:2018:877, paras 51 et seq.; and ECJ, Noorzia, C-338/13, EU:C:2014:2092; or the lack of comments on human dignity or Article 34 of the Charter in ECJ, Saciri et aL, C-79/13, EU:C:2014:103; see also Azoulai/de Vries, 'Introduction', in: ibid. (eds), EU Migration Law, p. I, 6-7. 06 See Horsley, 'Reflections on the Role of the Court of justice as the "Motor• of European Integration', CML Rev. 50 (2013), p. 931. 941-953; and Thym, 'Towards "Real" Citizenship?', in: Adams et al. (eds), Judging Europe's Judgrs (Han, 2013), p. 155-174.

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obligations are left to national constitutions and the ECHR (see below MN 47-48). The ECJ is not a specialised immigration and asylum tribunal, but rather a supreme court with broader constitutional responsibilities. 15 Together with the concept of direct effect, the category of individual rights plays a prominent role. 97 Judges recognised that migrants may have individual rights emanating from EU legislation 98 and that, in addition, exceptions should be construed narrowly. 99 On this basis, the position of migrants can be advanced through a rightsbased approach to statutory interpretation, 100 as the case law on the Dublin III Regulation exemplifies (see Hruschka/Maiani, Regulation 604/2013, Article 27 MN 7-8). At the same time, there is an important difference between migratory matters and other areas of Union law where individual rights played a prominent part in limiting state discretion, such as the single market or Union citizenship. In immigration and asylum legislation, individual rights of third country nationals do not usually flow directly from the EU Treaties (see below MN 20). 101 Human rights, in particular, do not typically comprise a guarantee to be granted access to the European territory (see Thym, Legal Framework for Entry and Border Controls, MN 32-36). Nevertheless, individual rights in secondary legislation can go beyond the level of protection prescribed by human rights, as the ECJ explicitly recognised in the case of family reunification. 102 When deciding on the scope of the statutory rights beyond human rights requirement, the EU legislature determines the conditions and limits set forth in legislative instruments. Judges should generally respect these legislative choices, even though the precise contents can be difficult to determine, as the example of pre-departure language skills illustrated (Bornemann/ Klarmann, Family Reunification Directive 2003/86/EC, Article 7 MN 25-29). The contours of individual rights in EU legislation have to be determined under recourse to the interpretative principles, such as the wording, the telos or the general scheme (see above MN 10-13). 103 16 EU law experts are aware that the ECJ frequently activates the principle of effet utile, supporting the domestic application of supranational rules. It was activated by the Court in immigration and asylum law, for instance when it prevented Member States from charging prohibitive fees that might render the realisation of statutory rights of migrants practically ineffective 104 or required renewed application of the Dublin III Regulation in case of double irregular secondary movements. 105 It is often applied in the form of a prohibition on undermining the objectives of secondary legislation to scrutinise domestic rules which are not covered by specific prescriptions in a directive or regulation (see below MN 2la). 106 Examples are language requirements for long-term '11 Generally, see Thorson, Individual Rights in EU Law (Springer, 2016), chs 7-8, 16-26 . .. By way of ex.ample, see ECJ, Chakroun, C-578/08, EU:C:2010:117, para 41. 99 By way of example, see ECJ, Arib et aL, C-444/17, EU:C:2019:220, para 50. 100 See Bast, Aufenthaltsrecht, p. 101-111; Groenendijk, Recent Developments, p. 329-330; and Boeles. 'What Rights Have Migrating Third country Nationals?', in: de Zwaan/Goudappel (eds), Freedom, Security and Justice in the European Union (T.M.C. Asser, 2006), p. 151, 152-162. 101 For further reading, see Thym, • Administrative Mindset" and "Constitutional Imagination", p. 151- I 52; and Thym, Constitutional Rationale, p. 718-721. 102 See ECJ, European Parliament v. Council, C-540/03, EU:C:2006:429, paras 59-60. 103 See Eilmansberger, 'The Relationship between Rights and Remedies in EC Law', CML Rev. 41 (2004), p. 1199, 1231-1245; Thorson, Individual Rights in EU Law (Springer, 2016); and the dynamic proposal by Warin, Individual Rights under European Union Law (Nomos, 2019). 11"' See ECJ, Chakroun, C-578/08, EU:C:2010:117, para 43; and ECJ, Commission v. Netherlands, C-5081 10, EU:C:2012:243, para 65. ,os See ECJ, Hasan, C-360/16, EU:C:2018:35, paras 71-80. 106 See Thym, 'Towards a Contextual Conception of Social Integration in EU Immigration Law', EJML 18 (2016), p. 89, 97-98.

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Chp. I residents 107 or the long list of cases limiting the criminalisation of irregular stay. 108 While the effet utile can work to the benefit of migrants, it is not intrinsically linked to this scenario, since it promotes the effectiveness of Union law as an end in itself. The effet utile supports individual rights whenever the latter coincide with broader objectives of the integration process, 109 whereas the effet utile will lead interpretation in other directions whenever Union law pursues different objectives. Thus, the ECJ emphasised that the Return Directive 2008/ 115/EC aims to establish an effective policy of removal and repatriation of illegally staying foreigners. 110 Unfortunately, the ECJ can be superfluous when identifying the aims pursued by 17 the EU legislatwe. 111 With regard to the Dublin III Regulation, for instance, it fluctuated between the prevention of secondary movements or 'forum shopping' in more restrictive cases 112 and swift processing by means of stable asylum jurisdiction in more lenient judgments 113 (both objectives should probably be considered to underlie the Regulation in paralld). Similarly, the Family Reunification Directive 2003/86/EC has been generally deemed to promote family reunification, 114 while Article 4( 5) establishing a minimum age of 21 years was considered to prevent forced marriages (an objective that may conflict with the promotion of family reunification). 115 To say, moreover, that the Long-Term Residents Directive 2003/109/EC pursues the objective of promoting the integration of long-term residents may conceal the complexity inherent in the meaning of the seemingly well-defined 'integration' objective (see Thym, Legal Framework for EU Immigration Policy, MN 43-47). Judgments on the Long-Term Residents Directive present different visions depending on the outcome of the case (see Thym, Directive 2003/109/EC. Article I MN 17a). Likewise, it can be treacherous to rely solely on a particular recital, since closer inspection of the instrument in question in the light of the drafting history (see above MN 13) will often expose that legislative acts pursue diverse and potentially conflicting objectives which reflect the diversity of opinions among various participants in the legislative process in a democratic and pluralistic society. 116 In such scenarios, courts should discuss the plurality of objectives openly and address them, where appropriate, in the balancing exercise that underlies the proportionality test (see below MN 26). It is not surprising that the ECJ supports the coherence of the supranational legal 18 order by interpreting similar terms in an identical fashion whenever appropriate. Doctrinal concepts developed for other segments of Union law are being applied to immigration and asylum legislation, 117 such as the concept of 'abuse', which was first See ECJ, P & S, C-579/13, EU:C:2015:369, paras 44 et seq. See ECJ, El Dridi, C-61/11 PPU, EU:C:2011:268, paras 57-59; and EC,, Sagor, C-430/11, EU: C:2012:777, paras 31--47, which distinguished between different criminal sanctions (not) impeding statutory objectives. 109 For a prominent critique, see Weiler, 'Van Gend en Loos: The Individual as Subject and Object and the Dilemma of European Legitimacy', International Journal of Constitutional Law 12 (2014), p. 94-103. 110 See EC,. El Dridi, C-61/11 PPU, EU:C:2011:268, para 59. 111 Generally. see Thym. Bird's Eye View, p. 186-187. 112 ECJ, N.S. et aL.C-411/10 & C-493/10, EU:C:2011:865, para 79; and ECJ, Mirza, C-695/15 PPU, EU: C:2016:188, para 52. 111 See ECJ. Gheulba.sh, C-63/15, EU:C:2016:409, para 52; ECJ, Mengesteab, C-670/16, EU:C:2017:587, paras 54, 73, 96; and ECJ, X & X, C-47117 & C-48/17, EU:C:2018:900, para 69. 114 ECJ, Chakrorm, C-578/08, EU:C:2010:117, para 43. m ECJ, Noorzia, C-338/13, EU:C:2014:2092, para 16. 11 • To pursue diverse and potentially conflicting aims is a hallmark of open democratic discourse, not a pathology. · n; See Groenendijk, Rrcent Developments, p. 329; and Jesse, The Value of "Integration" in European Law', ELI 27 (2011), p. 172-189. ia 7 108

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developed for economic market regulation (see Thym, Legal Framework for EU Immigration Policy, MN 48-49). As a matter of principle, the ECJ highlights in welcome clarity the objective of interpretative coherence: whenever two instruments use similar terminology, the same definition should be used '[w)ith a view to a consistent and uniform application of Union law on asylwn and immigration.' 118 However, panlld interpretation of llimilar terminology is no foregone conclusion, since it depends on the context of the statutory rule under consideration. Occasionally, the legislature may expressly define the meaning of a term for the purpose of specific instruments, 119 in line with the objective of terminological coherence in legislative drafting. 120 Nevertheless, the institutional practice is not always clear-cut. An eumple of incoherent terminology is the definition of the term 'third country national' which Article 2(a) Family Reunification Directive and Article 2(a) Blue Card Directive "define as any person who is not a Union citizen, while Article 3(1) Return Directive excludes those enjoying the right of free movement as a family member of Union citizens from the definition of third country nationals for the purposes of the directive. 121 In other scenarios, the application of interpretative criteria to the wording, general scheme. objective and drafting history of secondary legislation (see above MN 10-13) may support the conclusion that identical terms have distinct implications in different instrwnents. 122 The best example of the potential and limits of interpretative coordination In the ECJ cue law is the 'public policy' exception, in relation to which the ECJ recognised that it has a uniform meaning in different segments of Union law as a matter of principle, even though the interpretative exercise may result in legislation-specific outcomes (see Thym, Legal Framework for EU Immigration Policy, MN 42a-42d). It therefore has to be ascertained, in line with general interpretative criteria, whether and, if so, to what extent different legislative acts may be interpreted in parallel. 19 Case law on the Association Agreement between the EEC and Turkey and related Decisions of the Association Council, was often relied on as a harbinger of dynamic interpretation of similar terminology.1 23 It demonstrates both the potential and the limits of parallel interpretation. The 'so far as is possible' 124 formula employed by the ECJ reflects the wording of the Aasociation Agreement with Turkey which stipulates explicitly that rules on Turkish citizens should be approximated to the economic freedoms in the single market. 125 This implied, in tum, that parallel interpretation came to an end where the objectives and the general scheme of Union law and the 118

ECJ, Staatssecmaris van Justitie en Veiligheid, C-441/19, EU:C:2021:9, para 38.

Such official definitions can usually be found in the introductory operative articles of the directive or regulation and may be specific to it, i.e. other instruments may prescribe a different meaning. 11 9

120 The Joint Practical Guide of the European Parliament, the Council and the Commission for Persons Involved in the Drafting of European Union Legislation, July 2016, Guideline 6.3.1 calls for consistent terminology: 'Any given term is therefore to be used in a uniform manner to refer to the same thing ... This applies not only to the provisions or a single act, including the annexes, but also to the provisions or related acts.' 121 See Klarmann, Illegalisiene Migration. Die (De-)Konstruktion migrationsspezifischer lllegalitat im Unionsrecht (Nomos. 2021), p. 86-88. 122 See, by way or aample, the di~rgent interpretation of the term 'worker' and 'social a.uistance' in the contat of Union citizenship with regard to the Citizenship Directive 2004/ 38/EC and the Social Security Coordination Regulation (EU) No 883/2004 reaffirmed by ECJ, Brey, C-140/12, EU:C:2013:565. Ill See Barbou des Pl.aces, 'Droit communautaire de la libene de circulation et droit des migrations', in: L'Union europhnne: Union ck droit, Union des droits. Meuinges en /'honneur ck Philippe Manin (Pedone, 2010), p. 341, 344-350; Carrera/Wiesbrock, 'Whose European Citizenship in the Stockholm Programme?', EJML 12 (2010), p. 337, 347-349; and Groenendijk, Recent Developments. p. 321-324. 124 ECJ, Bozlcurt, C-434/93, EU:C:1995:168, para 20. 12 s See the Preamble and Article 12 Agreement Establishing an As.,oc:iation between the European Economic Community and Turkey or 12 September 1963 (OJ 1977 L 361/1).

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Chp. I Association Agreement diverged, for instance with regard to the notion of 'public policy' (see Thym, Legal Framework for EU Immigration Policy, MN 24b, 60). Considerations above demonstrate that it is a general feature of EU immigration and 20 asylum law that the interpretation of specific rules depends on the broader statutory and constitutional context. It is therefore not convincing to maintain the generic argument that the interpretation of secondary legislation on immigration and asylum by the ECJ will support a sort of domino effect that confers equal rights as Union citizens upon third country nationals. 126 There is no legal expectation enshrined at Treaty level that third country nationals and Union citizens should have limilar rights. EU citizens benefit from individual rights emanating from the Treaty concept of Union citizenship, while third country nationals cannot rely upon legal guarantees of cross-border movement with constitutional status in regular circumstances (see above MN 15). Judges in Luxembourg have repeatedly recognised that 'a particularly restrictive interpretation' 127 of derogations of the rights of Union citizens was required in the light of EU primary law. 128 This cannot be extended to the rules on immigration and asylum, which are an integral part of the area of freedom, security and justice in line with the diverse policy objectives laid down in the EU Treaty (see above MN 6-7), which distinguish the new policy field from the historic template of the single market and Union citizenship (see Thym, Legal Framework for EU Immigration Policy, MN 28-36). This different constitutional context for immigration and asylum law supports the search for autonomous solutions for third country nationals in light of the wording, the origin, the general scheme and legislative objectives as well as constitutional prescriptions and general principles of the supranational legal order.

2. Genenl Principles (including Proportionality) The supranational legal order comprises a number of unwritten general principles, 21 which were developed by the Court of Justice on the basis of the legal traditions common to the domestic legal orders of the Member States. 129 These general principles were developed by the ECJ over the past few decades and are now applied to immigration and asylum law as an integral part of the EU legal order. As unwritten rules, general principles apply without the need for references to them in secondary legislation. They can be relied upon to interpret measures adopted by the EU institutions and, in exceptional circumstances, they may serve as grounds for challenging the validity of secondary legislation.13° General principles are also binding on Member States when implementing Union law: state authorities and domestic courts must respect the general principles when they adopt decisions or render judgments whose outcome is determined by EU law mirroring the scope of the Charter of Fundamental Rights (see below MN 47-47a). Whenever Member States are not bound by general principles, they apply national 21a standards. including domestic constitutional guarantees. This concerns in particular 12• Such pmlictions usually rely on the abstract recognition that proportionality applies in both scenarios without considering the constitutional context; see, by way of example, Groenendijk, Rtcent Developments, p. 330-332; Wicsbrock, 'Granting Citizenship-related Rights to Third country Nationals', EJML 14 (2012), p. 63, 76-79; and Carrera, In Search of the Perfect Citizen? (Martinus Nijhoff, 2009), ch. 3. ir, By way of example, see ECJ, Orfanopoulos & Olivieri, C-482/01 & C-493/01, EU:C:2004:262, para 65. 1211 See also, Thym, Constitutional Rationale, p. 718-721. 129 For further miding. see Craig. Administrative Law, chs 15--21; and Tridimas, The General Principks of EC Law, 2nd edn (OUP, 2007). Do On the hierarchical superiority of the general principles in situations of judicial review, see ECJ, Audiolw:, C-101/08, EU:C:2009:626, para 63.

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questions that are not covered by secondary legislation, such as the status of nondeportable foreigners beyond the peripheral prescriptions in Article 14 Return Directive. In these areas, Union law and general principles do not apply as a matter of principle, even though judges may exceptionally limit state discretion if the latter undermines the effective realisation of the objectives of secondary legislation (see above MN 16). A fine example is the line of judgments limiting the criminalisation of illegal stay by the Member States following the initial El Dridi ruling (see above MN 16). 22 Human rights have traditionally been the most relevant unwritten general principles. Following the entry into force of the Treaty of Lisbon, the legally binding Charter of Fundamental Rights means that human rights are nowadays often discussed separately, as in this chapter (see below MN 47-50). General principles include the primacy and direct effect of Union law in national legal orders, when individuals rely upon EU rules that are clear, precise and unconditional in national courts and when the supranational rules prevail over domestic laws in cases of conflict (see below MN 34). Other principles include legitimate expectations and legal certainty 131 or damages Member States may have to pay to individuals for manifestly and gravely disrespecting their obligations under EU law, 132 which have not gained much practical relevance for migratory matters so far. General principles relating to the right to defence and judicial protection will be discussed below (see below MN 37-37c). 23 From a conceptual perspective, the general principles guarantee that EU immigration and asylum law is firmly embedded into the rule of law. Traditional notions of migration law and alienage as an exclave of legal protection, which prevailed in some Member States until recently, cannot be maintained. m Poland, for instance, cannot exclude the jurisdiction of domestic courts in a dispute concerning the denial of a visa. 114 The significance of the general principles comes to the fore after the end of the legislative procedure, once domestic courts and the ECJ begin to interpreting Union law. Unexpected legal effects flowing from the interpretation of secondary law in light of general principles are a common phenomenon, 135 even though judges in Luxembourg did not continue their earlier celebrity for dynamic interpretation when interpreting immigration and asylum legislation (see above MN 12). In its case, the ECJ adapts the bearing of general principles to the specificities of the area of freedom, security and justice whenever appropriate. 136 24 The general principle of proportionality is of great importance and has a dual relevance: it serves as a yardstick for the delimitation of EU competences 137 and defines Sec Craig, Administrative Law, ch. 18; and Wiesbrock, Legal Migration, p. 189-192. Cf. ECJ, Bra.sserie du plcheur & Factortame, C-46/93 & C-48/93, EU:C:1996:79 and any textbook on EU law. "' Cf. Thyrn, Migrationsverwaltungsrecht, p. 198-211; and Groenendijk, 'Citizens and Third Country Nationals', in: Carlier/Guild (eds), L'avenir de la libre circulation des personnes clans l'U. E. (Bruylant, 2006), p. 79, 98-100. u• Sec ECJ, El Ha.ssani, C-403/16, EU:C:2017:960, paras 39-41, even though it remained unclear, in light of the more elaborate opinion of AG Bobek, to what enent the verdict rested on the general assumption that states must provide for judicial review in areas where no statutory individual rights exist (see below MN 37c). 1J5 Similarly, De Bruycker, 'Legislative Harmonization in European Immigration Policy', in: Cholewinski et al. (eds), International Migration Law (T.M.C. Asser Press, 2007), p. 329, 343; and Kluth, 'Reichweite und Folgen der Europiisierung des Auslander- und Asylrechts', Zeitschrift fur Auslinderrecht (2006), p. 1, 6-7. 116 Sec Labayle/Berge, 'Les principes de l'Espace de liberte, de securite et de justice·, Revue trirnestrielle de droit europeen (2016), p. 589-610; and Herlin-Kamell, 'Constitutional Principles in the Area of Freedom, Security and Justice', in: Acosta Arcarazo/Murphy (eds), EU Security and Justice Law (Hart, 2014), p. 38-53. IJ; I.e. the definition of the scope of EU powers in line with Article 5(4) TIU. 1ll

IJ2

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Chp. I the limits of state action affecting individuals. 138 It is the second scenario that is especially relevant in the field of immigration and asylum. Generally speaking, any application of the principle of proportionality requires a multi-step test, which may ideally concern four questions: firstly, the state measure affecting individuals must pursue a legitimate aim; secondly, the measure must be suitable for achieving the objective; thirdly, the state action must be necessary to achieve the aim, since there are no less onerous ways available; finally, proportionality sensu stricto is assessed on the basis of a balancing exercise that takes the competing interests into account (although the ECJ sometimes merges the third and fourth criteria). 139 This four step test rationalises the application of the principle of proportionality and allows courts and academics to evaluate individual scenarios more easily. It is important to understand that, despite being based on objective standards, any 25 assessment of proportionality depends on the circumstances of the individual case. Closer inspection of the ECJ case law on migratory matters shows that proportionality is a uniform principle whose application is context-specific. 140 While judges often leave the EU institutions more leeway when assessing the proportionality of EU legislation, they are sometimes (not: always) stricter with regard to state action. 141 Unfortunately, it is difficult to discern a clear pattern as to when and why judges opt for a higher or lower level of scrutiny.' 42 The abstract criteria of the four-pronged test described above have to be assessed in light of the measure in question and the constitutional context. This dependence on context implies that the degree of judicial scrutiny may depend on the subject area under consideration. There may be good reasons to treat pre-departure language tests as a precondition for family reunification differently from police checks near internal Schengen borders, time limits for accelerated asylum procedures or the suitability of the refugee relocation scheme in light of Treaty objectives. 143 The argument in favour of a margin of appreciation by the EU legislature or domestic authorities is particularly strong when assessing questions in relation to which no distinct European position exists 144 , when courts lack information or expertise and when broader value judgments have to be made. 145 An important feature of the ECJ case law is the 'dear separation of functions between 25a the national courts and the Court of Justice' 146 under the preliminary reference procedure. While the ECJ remains responsible for interpreting Union law, any assessment of the facts as a matter for domestic courts. Since the principle of proportionality is in essence about a weighing exercise in light of the specificities of the legal and factual 138 In contrast to the German legal order, from which the EC) derived the principle of proportionality, its application is not limited to situations of state interference with individual rights; the EC) tends to apply proportionality as a limit lo stale power also in situations not covered by individual rights. 139 For details, see Tridimas, The General Principles of EC Law, 2nd edn (OUP, 2007), ch. 3. 140 See Thym, Bird's Eye View, p. 187-192. 141 See Craig. Administrative Law, chs 19-20; and Tridimas, The Principle of Proportionality', in: ibid. and Schutze (eds.), The Oxford Principles of European Union Law, Vol. I (OUP, 2018), p. 243, 251-262. 142 Cf. Zglinski, 'The Rue of Deference', CML Rev. 55 (2018), p. 1341-1385. 1H For these four examples, see ECJ, A, C-9/16, EU:C:2017:483, paras 60-61; ECJ, Samba Diouf. C-69/ 10, EU:C:2011:524, paras 66--68; and ECJ, Slovak Republic d: Hungary v. Council, C-643/15 & C-647/15, EU:C:2017:631, paras 206--224. 144 For the ECJ practice in the light of constitutional theory, see Dawson, The Governance of EU Fundamental Rights (CUP, 2017), p. 78-80; and Gerards. 'Pluralism, Deference and the Margin of Appreciation Doctrine', ELI 17 (2011 ), p. 80, 85-100. 145 For the differentiated ECJ approach to the principle of equality, see Croon, 'Comparative Institutional Analysis, the European Coun of Justice and the General Principle of Non-Discrimination-orAltemative Tales on Equality', EL) 19 (2013), p. 153-173. 146 ECJ, Dumond: Froment, C-235/95, EU:C:1998:365, para 25.

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situation, there are good reasons why the ECJ often leaves the proportionality test to domestic courta. In these cases, it remains the responsibility of national judges to apply supranational standards diligently; deference to domestic courts does not release them from the rule of law. Theoretical considerations invite the ECJ to treat domestic courts as partners and to seek a viable working relationship, since the domestic level is crucial for the effective application of supranational rules on the ground. 147 ECJ practice shows that the degree of deference can differ considenbly. While judges give detailed instructions in some cases, they limit themselves to abstract principles on other occasions and refrain from substantive guidance on how to apply the principle of proportionality in other judgments.1 48 Generally, there are good constitutional reasons that judges give domestic courts more leeway when the answer to a question requires an intimate knowledge of the facts, does not concern matters of great practical or conceptual importance for Union law or is intricately linked to the domestic legal context, not least in the field of administrative or judicial procedure. 149 26 In the evaluation of specific scenarios, it is necessary to clearly identify both the objective(s) pursued by state measures and individual interest(s) at stake. Without careful identification of the objectives and interests, the balancing exercise in the final proportionality assessment sensu stricto runs the risk of remaining aloof, since it ignores the relative weight of public policy objectives and private interests. It found, for instance, that national rules laying down a maximum period of eight months may be justified for third country nationals, although it violates the EU Treaties for Union citizens, whose special status bears greater weight in the proportionality assessment. 150 Unfortunately, the ECJ can be superfluous in the identification of the aim pursued by the EU legislature effet utile(see above MN 17). With regard to the Visa Code Regulation (EC) No 810/2009, judges highlighted the dual and potentially contradictory objective of facilitating legitimate travel and of preventing 'visa shopping.' 151 In such scenarios, judges should discuss the plurality of objectives openly and address them in the balancing exercise. When it comes to fundamental rights, there is often established ECtHR case law, which may serve as guideline for interpreting the Charter (see below MN 50). When statutory rights enshrined in EU legislation go beyond human rights requirements, for instance with regard to family reunification (see above MN 15), they have a greater weight in the weighing exercise. 27 An open question concerns the interaction between statutory rules and the principle of proportionality when legislative rules lay down general standards by requiring, for instance, immigrants to have a certain amount of money, comply with language requirements, meet time limits or demonstrate certain skills. A number of judgments can be read to supplant these general rules with an individualised assessment requiring the legislature or domestic authorities to set aside abstract prescriptions. 152 By 147 Sec the classic account by Alter. 'The European Court's Political Power', Western European Politics 19 (1996), p. 458, 466-471; remember that, without references from domestic courts, few cases would reach the EC), which, moreover, would not have enough capacities to handle a major increase of the caseload if it decided all matters independently without deference lo domestic courts. 141 See Thym, Bird's Eye View, p. 189-191; and Tridimas, 'Constitutional Review of Member State Action. The Virtues and Vices of an Incomplete Jurisdiction', ICON 9 (201 I), p. 737, 739-745. " 9 Thym, Bird's Eye View, p. 191-192. 150 Sec ECJ, Ordre des barreawc francophones et germanophone et eL, C-718/19, EU:C:2021:505, paras 65-72, which also mention procedural and contextual differences. m Sec ECJ, Koushlcaki, C-84/12, EU:C:2013:862, paras 52-53. 152 By way of cumple see, on language requirements. ECJ, K & A, C-153/14, EU:C:2015:453, paras 58-60 referring to both the principle of proponionality and Article 17 Family Reunification Directiw; on financial means see ECJ, X, C-302/18, EU:C:2019:830, para 39 highlighting the statutory requirement of

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Chp. I contrast, other rulings accepted dear-cut conditions or thresholds without requiring domestic authorities to embark on an investigation of whether the individual situation warranted a different treatment. 15l Unfortunately, the case law is not straightforward.1 54 It should be noted, in particular, that human rigbta do not prevent precise statutory conditions provided that an assessment of the legislation indicates that public policy objectives generally prevail over private interests insofar as the proportionality of the general rules is concerned.

3. More Favourable National Provisions Most directives on immigration and asylum contain an express provision stating that 28 it does not prevent Member States from introducing or retaining more favourable provisions - a discretion which most instruments adopted in recent years qualify to be limited 'insofar as these [national rules] are compatible with this Directive.1 55 These provisions in secondary legislation are generally understood to allow Member States to adopt rules in favour of third country nationals whose rights and duties are regulated by the Directive in question, 156 although the precise scope remains unclear. Both the new primary law framework of the Treaty of Lisbon and the aforementioned proviso concerning compatibility with the directive in question argue in favour of a cautious approach towards national deviations. It will be demonstrated in this section that, notwithstanding specific prescription in individual directives, Member States cannot deviate from common rules on the basis of generic clauses on more favourable rules whenever the instrument in question opts for full harmonisation. Before the entry into force of the Treaty of Lisbon, the Treaty allowed for the 29 adoption of 'minimum standards' only, while rules on immigration, border controls and visas had not been subject to a similar restriction. 157 It was often argued at the time that the limitation to 'minimum standards' in EU primary law and corresponding provisions in secondary legislation should be understood, in a similar way to international human rights law, as a minimum requirement for domestic legislation, while generally allowing for more generous rules for the benefit of migrants, especially in the field of asylum.•~ It is no longer relevant whether this was correct, since the Treaty of Lisbon abandoned the restrictive Treaty base, thereby permitting a higher degree of harmonisation (see above MN 3-4). New legislation on asylum has been adopted allowing for more favourable 'sufficient' resources in Anicle 5(1)(a) Long-Term Residents Directive; and on Union citizens and the loss of nationality see EC}, Tjebbes er al., C-221/17, EU:C:2019:189, paras 40-42. " 3 See, on the loss of long-term residence status, ECJ, Y.Z. er aL, C-557/17, EU:C:2019:203, para 73; on Union citizenship and social benefits ECJ, Alimanovic, C-67/14, EU:C:2015:597, paras 59-60; and on the loss of nationality AG Mengou.i, Tjebbes et aL, C-221/17, EU:C:2018:572. paras 51-118; similarly, the position of the German Federal Administrati~ Court (Bundesvcrwaltungsgerichl), judgment of 19 April 2018, I C 1.17, ECLl:DE:BVerwG:2018:190418UICl.17.0, para 61 on the application of the RottmJJnn judgment;. and, generally, of the German Federal Constitutional Coun (Bundesverfassungsgericht), decision of 17 December 2013, I BvL 6/10, ECLl:DE:BVerfG:2013:ls20131217.lbvl000610, paras 84-85. l!-4 See Davies, 'How Citizenship Divides. The New Legal Ous of Transnational Europeans', European Papers 4 (2019), p. 675, 682-685; and Van Eijken, 'Tjebbes in Wonderland', EuConst 15 (2019), p. 714, 723-725. iss By way of example, see Article 5 Asylum Procedure Directive 2013/32/EU. 1! Sec Peers. EU Justice, p. 450. 157 Contra.st the Treaty bases for asylum in Anicle 63(l)(a)-(c) and 63(2) EC Treaty as amended by the Treaty of Nice (OJ 2006 C 321E/5) with rules for immigration in Anide 63(3) and for border controls and visas in Article 62 EC Treaty. 158 Cf. Storey, 'EU Refugee Qualification Directive: A Brave Sew World?', IJRL 20 (2008), p. I, 16-22; and I.amben, 'The EU Asylum Qualification Directive, Its Impact on the Jurisprudence of the United Kingdom and International Law', ICLQ 55 (2006), p. 161-191.

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national rules only insofar as they are compatible with the relevant directive. 159 The interpretation of these rules should acknowledge the broader objective laid down in the EU Treaty to move towards a 'Common European Asylum System' as an integral part of the area of freedom, security and justice, which generally aims for more uniformity.160 This constitutional context supports extensive legislative activities (see above MN 5) and argues for a restrictive reading of the clauses on national deviations that compromise uniformity. 30 To understand the relevance of the provisions on more favourable national treatment, the concept of harmonisation is central, since it entails the approximation of national rules in line with the overarching objective of 'ever closer union,' 161 in which differences between Member States are replaced by common standards. Tellingly, regulations on immigration and asylum. such as the Schengen Borders Code, the Dublin III Regulation or the Visa Regulation, contain no provision authorising Member States to adopt more favourable provisions. 162 Unlike international human rights law, 163 these harmonisation measures do not establish minimum requirements, but lay down pan-European standards that command primacy over domestic rules in cases of conflict. It is well known that the Court of Justice cautiously defends the uniform and effective application of EU law and generally regards national deviations with suspicion. 164 For that reason, one should ascertain on a case-by-case basis whether and if so to what extent Member States may deviate from secondary legislation. In cases of doubt, it should be assumed that legislation supports a pan-European standard from which Member States cannot deviate. 31 The Court of Justice establishes on a case-by-case basis whether individual articles result in complete (full) harmonisation, which pre-empts national deviations as a uniform standard. More favourable national rules are allowed in other scenarios as long as they do not compromise the effective and uniform application of the EU rules in question. 165 Whether an article grants discretion depends on an interpretation of the provision in light of the wording. the general scheme, the drafting history, the aims and the constitutional context (see above MN 10-18), including the Treaty objective to move towards a common immigration and asylum policy (see above MN 29). In some instances the interpretation of individual articles will be straightforward. The term 'shall' designates mandatory rules, while the word 'may' indicates a certain level of flexibility awarded to Member States, which are not free, however, to do as they please, since national deviations are only permitted in so far as the article in question allows for leeway. One may conclude by means of interpretation, for example, that Member States m See, Article 3 Asylum Qualification Directive 2011/95/EU, Article 5 Asylum Procedure Directive 2013/32/EU and Article 4 Asylum Reception Conditions Directive 2013/33/EU, while the Dublin 111 Regulation (EU) No 604/2013 contains, like all regulations on immigration and asylum (see below MN 30), no provision on more favourable national treatment. 160 See also Peen, EU Justice, p. 242. 161 Recital I of the Treaty on the Functioning of the European Union. 161 In line with Article 288 TFEU, regulations are - unlike directives - meant to be applied directly, thereby establishing a higher degree of harmonisation. 163 Article 53 ECHR; many immigration and asylum experts have a background in human rights law (not EU law) and therefore tend to underestimate the preference for unifonnity in EU law. 164 Cf. de Wine, 'Direct Effect, Primacy and the Nature of the Legal Order·, in: Craig/de Burca (eds). The Evolution of EU Law, 2nd edn (OUP, 2011), p. 323-362. 161 See the debate on the example of consumer protection by Loos, Full harmonisation as a regulatory concept and its consequences for the national legal orden, Centre for the Study of European Contract uw Working Paper Series So 2010/03; the contributions to Sturner (ed), Vollharmonisienmg im Europaischrn Vrrbraw:herrecht? (Sellier, 2010); and Whittaker, 'Unfair Terms and Consumer Guarantees', European Review of Contract uw 5 (2009), p. 223-247.

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Chp. I 'may' choose between solution A and 8, while solution C would violate the directive, since it would involve going beyond the discretion afforded by the instrument in question. 166 With regard to the Schengen Borders Code and the Visa Code, the Court found explicitly that the objective of common standards argues against Member States' discretion. 167 In short, the definite scope for possible deviations must be ascertained on a case-by-case basis when interpreting EU legislation. 1b11 The formulation follows different patterns and three clauses on more favourable 32 national provisions can be distinguished: ( l) Most directives permit for national deviations only 'insofar as [they] are compatible with this Directive' 169 ; these provisions require an assessment on a case-by-case basis as to whether specific articles allow for flexibility (see above MN 31). (2) Other directives explicitly lay down that Member States may deviate from specific provisions, which allow for the adoption of more favourable rules as a result. 170 (3) Some directives stipulate in more general terms that Member States remain free 'to adopt or maintain provisions that are more favourable to the persons to whom it applies' without indicating, like in the first scenario, that domestic rules must comply with the directive. 171 The Family Reunification Directive and the Long-Term Residents Directive, neither of which contain the caveat that more favourable domestic rules concern only those 'to whom [the Directive] applies', are the most far-reaching instruments. An interpretation of the Family Reunification Directive and the Long-Tenn 33 Residents Directive shows that the third scenario above does not allow Member States to deviate from mandatory provisions when they adopt implementing legislation. Member States remain free, however, to retain or adopt more favourable domestic rules outside the scope of the directive. They can establish, for instance, a hardship clause for family reunion, which, as a result, does not bring about rights under the Directive (see Arevalo/Bornemann, Directive 2003/86/EC Article 3 MN 19) or retain more generous domestic rules on long-term residence status if the latter can be distinguished from the status prescribed by EU law (see Thym, Directive 2003/109/ EC, Article 13 MN 2, 4). Similarly, the ECJ recognised that Member States can grant complementary status under domestic law to people whose application for international protection has been rejected as long as states do not call into question the effective implementation of the EU legislation, which in practice requires them to draw 'a dear distinction ... between national protection and protection under the directive.' 172 More favourable national protection statuses do not bring about rights under the EU asylum acquis, since Member States act within the scope of their retained powers. 173 166 Interpretation in the light of the broader context can even indicate that 'may' means 'shall' or that Member States havi: only a binary choice (not) to do a cenain thing; cf. the opinion of the Cowicil legal service on the Draft Asylum Qualification Directive in Council doc. 14348/02 of 15 November 2002. 16 ' For visas, see ECJ, Kowhkaki, C-84/12, EU:C:2013:862, paras 48-50; and for border controls, see ECJ, Air Baltic Corporation, C-575/12, EU:C:2014:2155, paras 65-68. 108 By way of example, see ECJ, Ahmedbekova.. C-652/16, EU:C:2018:801, paras 69-74 with regard to Anide 3 Asylum Qualification Directive 2011/95/EU. ,.. See the new asylum directives mentioned above MN 29; Article 4(3) Return Directivi: 2008/115/EC; and Anicle 15 Employer Sanctions Directive 2009/52/EC. 170 Cf. Anide 4(2) Blue Card Directivi: 2009/50/EC; Article 4(2) Seasonal Workers Directive 2014/36/ EU; and Anicle 4(2) ICT Directive 2014/66/EU. 171 See Anide 4(2) Students and Researchers Directive (EU) 2016/801; and Article 13(2) Procedures Directive 2011 /98/EU. 172 See ECJ, B., C-57/09 & 101/09, EU:C:2010:661. para 120; and ECJ, Bevandorlasi ts Menekl.iltugyi Hivatal, C-519/18, EU:C:2019:1070, paras 42-43. 173 Cf. ECJ, M'Bodj, C-542/13, EU:C:2014:2452, paras 42-46.

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4. Application in Domestic Law The legal effects of directives and regulations follow the general principles of Union law, which apply to border controls, asylum and immigration law like to any other area of the supranational legal order. Regulations such as the Schengen Borders Code or the Dublin Ill Regulation are by nature directly applicable and are binding on state authorities and domestic courts applying EU immigration and asylum law. 174 Regulations can lay down individual rights of or obligations for individuals, which the latter can invoke and must respect irrespective of domestic rules. By contrast, directives must be transposed into national law during the transposition period, whose length is determined by the legislature on a case-by-case basisP 5Member States need not 'copy and paste' the wording of a directive; national rules and the general legal framework may suffice provided that they ensure respect for EU law and render individual rights visible.'76 It is established in ECJ case law that directives can be directly applicable in case of incorrect transposition, if the provision in question is clear, precise and unconditional and if it seeks to confer rights on individuals against the state. 177 Moreover, domestic courts are bound to interpret national law, so far as possible, in light of the directive to achieve the result sought by the EU legislature, including in situations when the conditions for direct effect have not been met. 178 The requirement for national law to be interpreted in conformity with Union law effectively means that a directive can be indirectly relied upon via domestic rules. 34a The ECJ has regularly taken recourse to general principles to promote their application even before the expiry of the period of transposition of a directive where national rules fall within the scope of EU law. Observance of general principles of Union law cannot be made conditional, in the eyes of the Court, on the expiry of the period allowed for the transposition of a directive.' 79 Moreover, national courts are obliged to refrain as far as possible from interpreting domestic law in a manner which might seriously compromise the attainment of an objective pursued by a directive from the date when it enters into force, even before the adoption of implementing legislation.180 Finally, there may be scenarios when EU legislation does not deal with an issues, but Member States decide to apply Union law voluntarily to questions it does not cover, such as family reunification of those with subsidiary protection as opposed to refugee status. In these cases, national courts are obliged to respect Union law, including general principles, as if the matter was covered by a directive. Domestic courts can ask the ECJ for guidance. 181 34b In contrast to regulations, directives tend to leave more discretion to Member States as to how to regulate certain questions, although the scope of flaibility depends on the interpretation of secondary legislation. Nevertheless, directives can include provisions fully harmonising a specific legal question (see above MN 31). In practice, the distinc34

Cf. Article 288(2) TF£U. s It can usually be found in the final provisions of each directive. 176 See ECJ, Commwion v. Austria, C-194/01, EU:C:2004:248, paras 37-39; and EuGH, Commission v. Gennany, 29/84, EU :C: 1985:229, para 23. 177 By contrast, the state cannot rely on provisions in a directive, which puts an obligation on individuals; see Craig/de Burca. EU Law, 6th edn (OUP, 2015), ch. 4; by way of example contrast ECJ, A, C-404/17, Et::C:2018:588, paras 28-31 to ECJ, Torubarov, C-556/17, EU:C:2019:626, paras 91-101, which confirmed the direct applicability of certain provisions of asylum legislation to the benefit of individuals. 178 Cf. ECJ, Pfeiffer, C-397/01-C-403/0i, EU:C:2004:584, paras 110-119. 179 Cf. ECJ, Mangold, C-144/04, EU:C:2005:709. 180 See ECJ, Adme/er, C-212/04, EU:C:2006:443, paras 113-123, in part. 123. 181 See ECJ, E, C-635/17, EU:C:2019:192, paras 35-42. 11,

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Chp. 1 tion between regulations and directives is not always clear-cut. On the one hand. some directives are almost as specific as regulations, laying down detailed rules not leaving Member States legislative discretion, for instance regarding the criteria defining acts and reasons for persecution or exclusion from refugee status under Article 9-12 Asylum Qualification Directive 2011/95/EU. On the other hand, some regulations explicitly call upon Member States to adopt implementing rules, for instance regarding the meaning of 'risk of absconding' in Article 2(n) Dublin III Regulation (EU) No 604/2013. Similarly, the switch from directives to regulations in the recent asylum package under the 'Pact for Migration and Asylum' of 2020 (see above MN 8) will not result in full harmonisation of asylum legislation single-handedly. EU law concentrates on the legislative harmonisation, while the practical application 35 of supnnational rules to individuals is left to the Member States as a matter of principle. This entails that the day-to-day decision-making in immigration and asylum cases is done by national authorities, whose decisions can be challenged in domestic courts which may ask the ECJ to interpret EU rules under the preliminary reference procedure of Article 267 TFEU. Given that immigration and asylum have a tangible practical and operational dimension, 182 the EU institutions support the convergence of administrative practices through guidelines on the interpretation of EU law, networks among practitioners and financial support for transnational cooperation. 183 Moreover, agencies have gained powers, staff and influence as a linchpin for transnational administrative cooperation. The border's agency FRONTEX and the future European Asylum Agency (EUAA) will be discussed separately in this volume (see Ryan, Frontex Regulation (EU) 2019/1896). It will be discussed in introductory chapters to border controls and asylum policy to what extent EU primary law allows for the gradual buildup of autonomous decision-making powers at the supranational level (see Thym, Legal Framework for Entry and Border Controls, MN 8, 20a; and Thym, Legal Framework for EU Asylum Policy, MN 27). When deciding individual cases, Member States apply domestic niles on ad.minis- 36 trative and judicial procedure unless these are supplanted by procedural rules in secondary legislation as leges speciales. 184 EU immigration and asylum legislation contains numerous procedural provisions, although many of these clauses remain abstract when stipulating. for instance, that Member States 'shall provide for reasonable time limits and other necessary rules for the applicant to exercise his or her right to an effective remedy.' 185 These provisos require the continued existence of national administrative rules, which must be interpreted in the light of EU law in cases of conflict; national laws fill the gaps of EU immigration and asylum law. This application of domestic procedural guarantees is often referred to as the prindple of procedunl autonomy. 186 The ECJ has repeatedly reaffirmed this principle, while also establishing two limits: when applying national rules, Member States must ensure, firstly, that the rules. for EU-related claims are not less favourable than those governing similar 112 See Costello, 'Administrative Governance and the Europeanisation of Asylum and Immigration Policy', in: Hofmann/Turk (eds), EU Administrative Go.-ernance (Elgar, 2006), p. 287, 322; Thym, 'The "Refugee Crisis" as a Challenge of J..egal Design and Institutional Legitimacy', CML Rev. 53 (2016), p. 1545, 1554-1558; and Walker, 'In Search of the Area of Freedom, Security and Justice', in: ibid. (ed), Europe's Area, p. 3, 20-23. 1u See De Bruyckerffsourdi, 'Building the Common European Asylum System beyond Legislative Harmonisation', in: Chetail/De Bruycker/Maiani, Reforming. p. 473-538. 11M See von Danwitz, Europaisches Verwaltungsrecht (Springer, 2008), p. 302-312. 11s Article 46(4) Asylum Procedure Directive 2013/32/EU concerning judicial action against the rejection of an asylum application. 186 See Craig. Administrative Law, ch. 23.

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domestic actions (principle of equivalence) and, secondly, that they do not render the exercise of rights conferred by Union law practically impossible or excessively difficult (principle of effectiveness). 187 The principle of effectiveness can play a critical role in limiting the discretion of Member States, although its operationalisation ill· practice remains inherently difficult to predict. 11111 By contrast, judges ill Luxembourg will often leave the application of the prillciple of equivalence to domestic courts which know the relevant national law in question. 189 36a The ECJ has applied the principle of procedural autonomy to immigration and asylum law, even though the number of judgments elaborating on the principle remaills limited. One explanation for this may be the inclination of domestic courts not to refer matters of Union law to judges ill Luxembourg unless secondary legislation lays down detailed prescriptions or whenever previous rulillgs · raised specific questions. 190 This is often not the case when it comes to procedures. This explains why the judgments on the limits to national procedural autonomy concern selective matters only. Regarding the principle of equivalence, the ECJ often leave its application to domestic courts which have the knowledge necessary to compare national laws in question. 191 When doillg so, the ECJ does not illsist on categorical parallelism. It recognised explicitly that asylum procedures can be subject to stricter procedural requirements than rules for other areas of domestic law; no equal treatment is required when the national procedures in question are not comparable, for instance regarding the suspensive effect of legal remedies.1 92 It explicitly found that the objective of 'expeditious' decision-making argues for stricter time limits for and legal effects of legal remedies ill the field of asylum. 193 Distinctions within asylum law between different countries of origin do not constitute unjustified unequal treatment.194 36b In the judicial practice, the principle of effectiveness serves as a generic standard to challenge strict domestic rules in the absence of supranational harmonisation. 195 More specifically, the prindple of effectiveness pined relevance for time limits for remedies against administrative decisions and the legal effects of a failure to comply with procedural obligations by the immigration and asylum authorities (see below MN 37a). Judges held a time limit of 15 days for remedies to be acceptable, while striking down an eight-day rule as a matter of principle (subject to a caveat that it might be acceptable ill some scenarios). 196 The outcome ultimately depends on the specificities of the case at hand. Strictly calculated deadlilles of 10 days for regular appeals and of 5 days for Settled case law ever since ECJ, Rewe-Zenrralfinanz. 33/76, EU:C:1976:188, para 5. See, again, Craig. Administrative Law, ch. 23. By way of example, see ECJ, Commissaire Fneral aux rtfugies and aux aparricks, C-651/19, EU: C:2020:68 I, paras 39-4 I. 51-52. 187

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190 See Thym, Bird's Eye View, p. 170-174; and Krommendijk, The Preliminary Reference Dance between the CJEU and Dutch Courts in the Field of Migration', European Journal of Legal Studies JO (2018), p. 101-154. 1• 1 By way of example, see ECJ, Commissaire general aux refugies and aux apatrides, C-651/19, EU: C:2020:681, paras 39-41, 51-52. 19 l See ECJ, Belastingdienst/Toeslagen, C-175/17, EU:C:2018:776, paras 41-46. '"l See ECJ, Commissairt F"iral aux rtfugie.s and aux apatrides, C-651/19, EU:C:2020:681, para 54. 194 See ECJ, D. & A .. C-175/11, EU:C:2013:45, paras 72-73 in light of human rights. 1• 5 See Majcher, Returns Directive, p. 172-183; Reneman, 'Speedy Asylum Procedures in the EU', [JRL 25 (2013), p. 717, 730-746; and, by way of example, ECJ, K & B, C-380/17, EU:C:2018:877, paras 56-63. 196 See ECJ, Samba Diouf. C-69/10, EU:C:2011:524, paras ~68; and ECJ. Bevandorldsi es Mentkultugyi Hivatal (Tompa), C-564/18, EU:C:2020:218, paras 72-73; moreover, ECJ, Danqua, C-429/15, EU: C:2016:789, paras 41-48 concerned time limits for submitting an asylum application.

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Chp. I subsequent applications made during detention were accepted, although judges highlighted that national judges had to ascertain whether accompanying procedural rights, such as access to legal assistance, were practically available. 197 While effectiveness will work to the benefit of individual claimants in most c.ases, it is not intrinsically linked to it. For instance, it stands in the way of domestic rules obliging domestic authorities to positively respond to an application for a residence permit for the sole reason that time limits had elapsed; non-compliance with time limits does not absolve the authorities from diligently applying the conditions laid down in secondary legislation. 198 Conversely, the ECJ found that domestic rules obliging courts to take their decisions within a certain time frame may violate the principle of effectiveness if this prevents domestic courts from performing their oversight function effectively in light of contextual factors such as the workload, working conditions, or the difficulty of certain cases. 199 Additional limitations can result from the fundamental right to an effective remedy, whose interpretation increasingly overlaps with the principle of effectiveness (see below MN 37b). Inspection of the ECJ case law shows that judges found a violation of the effectiveness 36c test in the majority of judgments. Such an outcome is no foregone conclusion, however, and can be rationalised by the practice of domestic courts primarily referring cases where they justifiably expect support from supranational judges to disapply problematic national rules. As a matter of principle, the ECJ recognises that it can be legitimate to curb legal remedies, for instance to guarantee that 'applications for international protection should be dealt with expeditiously' 200 • Judges concluded that appeals to a higher court can be limited to matters raised before the lower court, even though this may result in certain aspects being excluded from legal oversight at second instance. 201 They also confirmed, in the context of asylum, that the principle of legal certainty can outweigh the effectiveness test. Doing so, the ECJ had recourse to a line of judgments on other segments of the supranational legal order to confirm that administrative decisions and court rulings for which time limits for remedies or appeals have elapsed need not be automatically reversed even though they were based on an incorrect interpretation of Union law. 202 Effectiveness is an essential tool to correct overly restrictive national rules but no all purpose tool.

5. Procedural Fundamental Rights Guarantees National rules on administrative and judicial procedure must comply with statu- 37 tory rules in EU legislation and the limits to the principle of procedural autonomy (see above MN 35-36c). Additional guarantees can be derived from the Charter of Fundamental Rights, which binds Member States whenever they are implementing Union law (see below MN 47-48). Procedural guarantees in the Charter can complement the principle of effectiveness as a limitation of state discretion in areas that are 197 See ECJ, Commissaire general aux rtfugies and aux apatride5, C-651/19, EU:C:2020:681, paras 54-64 with additional comments on the special situation of an applicant residing abroad; and ECJ, T.H.C., C-755/19, EU:C:2021:108, paras 26-44. 1'"' See ECJ, Belgische Staal, C-706/18, EU:C:2019:993, paras 26, 34-36; and ECJ, Diallo, C-246/17, EU: C:2018:499, paras 44-49. 199 See ECJ, Bevandor/asi es Menekultiigyi Hivatal, C-406/18, EU:C:2020:216, paras 26-34. 200 ECJ, Commissaire general aux refugies and aux apatrides, C-651/19, EU:C:2020:681, para 54. 201 ECJ, Bensada Bena/la~ C-161/15, EU:C:2016:175, paras 27-28 read in conjunction with the opinion of Advocate General Mengoz.zi, para 42 for the principle of effectiveness; additional limitations may flow from the principle of equivalence. 202 See ECJ, Orsza.gos ldegenrendesuti F6igazgat6sag D~l-alfoldi Regionalis lgazgat6sag. C-924/19 PPU & C-925/19 PPU, EU:C:2020:367, paras 185-187.

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not directly subject to supranational harmonisation (see above MN 36b). 203 Procedural guarantees in the Charter deserve closer attention, since they transcend obligations of the Member States under general human rights law. Articles 41 and 47 of the CJiarter provide a higher level of protection than Articles 6 and 13 ECHR, which do not usually apply to immigration and asylum law and do not necessarily require a judicial remedy (see Thym, Legal Framework for EU Asylum Policy, MN 61). 37a The fundamental right to good admin.ist.ration in Articles 41 of the C.barter is an innovative novelty that does not exist in many other hwnan rights documents. While the provision directly binds the institutions and agencies of the Union only, the ECJ recognised that it can similarly be applied within domestic legal orders as an unwritten general principle of Union law in line with Article 6(3) TEU. 204 Practical relevance depends on the state of affairs in domestic legal orders: Member States with sophisticated procedural statutory or constitutional guarantees will be less affected than countries with less developed administrative safeguards. In practice, the right to be heard under Article 42(2)(a) of the Charter205 and the obligation to give reasons in Article 42(2)(c) of the Charter have gained relevance, even though the ECJ refrains from laying down extensive requirements. It found, for instance, that the standard form for rejecting visa applications meets the obligation to state reasons, although the predefined answers are highly abstract (and are given in an official language of the Union only). 206 In applying the right to be heard, which forms an integral part of the rights of the defence, 207 judges do not necessarily follow the interpretation most beneficial to individuals. In a number of rulings, the ECJ sought to balance the right to be heard with countervailing public policy objectives,208 thus avoiding an outcome in which a violation of rights of the defence necessarily results in an annulment of the ensuing administrative or judicial decision. 209 Unfortunately it is difficult to distil clear patterns from the case law, which fluctuates between irrelevance, substitution by court hearings and referral to the administrative authority. Generally speaking, judges are stricter when it comes to personal interviews in asylum proceedings. since secondary legislation specifies the implications of the right to be heard in great detail. 210 Judges are also less strict under the Return Directive, which does not establish detailed hearing requirell>J

204

Sec ECJ, El Ha.ssani, C-403/16, EU:C:2017:960, paras 33-34. Sec ECJ, HN, C-604/12, EU:C:2014:302, paras 49-51; and ECJ, Mukarubega, C-166/13, EU:

C:2014:2336, paras 42-45; for further comments, see Hofman/Mihaescu. 'The Relation between the Chaner's Fundamental Rights and the Unwritten General Principles of EU Law', EuConst 9 (2013), p. 73-101. ms Note that the scope ratione matmae of the provision is - unlike Article 47 of the Cliarter (see below MN 37c) - not limited to scenarios where individual staMory rights are at stake. 206 With regard to the less specific predecessor rule of Article 32 in conjunction with Annex VI of the revised Regulation (EC) No 810/2009, see ECJ, Minister van Buitenlandse Zaken, C-225/19 & C-226/19, EU:C:2020:951, paras 33-47, which did not concern the question of translation and found that additional remarks can be entered in the form. l07 Sec ECJ, M, C-560/14, EU:C:2017:101, para 25. 2D1 Remember that fundamental rights can be limited under Article 52( I) of the Chaner; on the judicial practice, see ECJ, Sadco, C-348/16, EU:C:2017:591, paras 37-38. II)'} Sec Sadowski, 'A Safe Harbour or a Sinking Ship?', European Journal of Legal Studies 11 (2019), p. 29, 52-53; Diekmann, Menschenrechtliche Grmun des Ruclcftihrungsverfahrens in Europa (:\Jomos, 2016), p. 142-143; and De Bruycker/Mananashvili, 'Audi alteram partem in Immigration Detention Procedures', CML Rev. 52 (2015), p. 569, 582-587. 110 Sec ECJ, Addis. C-517/17, EU:C:2020:579, paras 64-71; and the more generous conclusion of ECI, M, C-560/14, EU:C:2017:101, paras 32-33 on the predecessor instrument; more ftaibility is given in the reverse scenario where a judicial decision is delivered without a second hearing in light of the detailed information in the administrative file; see ECJ, Sacko, C-348/16. EU:C:2017:591, par.u 33-40, 45-48.

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Cbp. I ments and where the absence of a hearing does not generally result in the illegality of the ensuing administrative decision. 211 The right to an effective judicial remedy in Article 47 of the Charter plays a central 37b role, since it is often relied upon to challenge restrictive national provisos.212 Article 47 of the Charter must be interpreted in light of Articles 6 and 13 ECHR as a matter of principle2 13 - with the notable exception that the Charter, unlike Article 6 ECHR, extends to core area of immigration and asylwn law (see above MN 37). This entails that independent internal administrative review structures do not usually meet the requirements of judicial independence in accordance with Article 47 of the Charter, although they are sufficient under Article 13 ECHR 214 The ECJ found that Article 13(1) Return Directive has to be interpreted in light of the Charter (see Mananashvili/Moraru, Directive 2008/115/EC, Article 13 MN 11-12). The provision has gained practical relevance in the field of asylwn procedure in particular, where it increasingly supplants the principle of effectiveness as a limitation of national procedural autonomy. 215 The contents of the right to an effective ranedy must be ana1yaed carefully in line with the complex supranational and international case law of the ECJ and the EQHR 216 A good example that the case law does not always result in clear-cut answers are judgment on time limits (see above MN 36b). Moreover, it can be difficult for the ECJ and the ECtHR to develop uniform standards in light of the profound discrepancies between national procedural practices. 217 Appeals against asylwn decisions are an area in which some harmonisation was achieved in a serious of judgments interpreting Article 46(3) Asylum Procedures Directive (see Vedsted-Hansen, Directive 2013/32/EU, Article 46 MN 3a-4b), which did not distinguish neatly between statutory and constitutional requirements, thereby making it difficult to determine to what extent they can be applied to other areas of immigration law. 218 The right to an effective remedy applies to '[e)veryone whose rights and freedoms 37c guaranteed by the law of the Union are violated' 219 in the same way as Article 13 ECHR presupposes an arguable claim that another human right was violated. 220 We know for certain that individual rights to which Article 47(1) of the Charter applies need not be fundamental rights but embrace statutory guarantees enshrined in secondary legislation, m See ECJ, Mulcarubega, C-166/13, EU:C:2014:2336, pans 46-53; and ECJ, G. & R., C-383/13 PPU, EU:C:2013:533, paras 32-40; see also ECJ, Boudjlida, C-249/13, EU:C:2014:2431, paras 55-56; and Dareva. Valeria: The Right to be Heard. The Underestimated Condition for Effecti~ Returns and Human Rights Consideration, in: Madalina Moraru/Galina Comdisse/Philippe De Bruycker (Hrsg.), uiw and Judicial Dialogue on the Return of Irregular Migrants from the European Union (Hart, 2020), p. 351-368. 212 See Bast, 'Of General Principles and Trojan Horses', GLJ 11 (2010), p. 1006, 1020-1023; and Acosta Arcarazo/Geddes, The Development, Application and Implications of an EU Rule of uw in the Area of Migration Policy', JCMSt. 51 (2013), p. 179-193. m See ECJ, Toma & Biroul Executorului Judecltoresc Horatiu-Vasile Cruduleci, C-205/15, EU: C:2016:499, pan 40. w Contrast ECtHR. judgment of 26 October 2000 [GC), No. 30210/96, Kudla v. Poland. para 157 to ECJ, Ontagos Idegmrendesz.eti F6igazgat6sdg Dil-alfoldi Regiondlis Igazgatosag, C-924/19 PPU & C-925/ 19 PPU, EU:C:2020:367, paras 1258-135. m On the often indeterminate interaction, see Reneman, Article 47 of the Charter, p. 60-64. 216 For a holistic analysis before the promulgation of most judgments mentioned hereinafter, see Reneman, EU Asylum Procedures and the Right to an Effective Remedy (Hart, 2014). 117 See Reneman, Article 47 of the Otarter, p. 77-78; and von Danwitz, Europaisches Verwaltungsrecht (Springer, 2008), p. 11-140. 218 This applies in particular to the need for a comprehensift ex nunc assessment by national courts and their power to replace administrative decisions; see Reneman, Article 47 of the Charter, p. 67-73. 21 9 Article 47(1) of the Charter. 220 See ECtHR, judgment of 28 February 2008 [GC), No 37201/06, Saadi v. Italy, para 125 on Article 13 ECHR; and ECtHR, judgment of 14 September 2016 [GC], No 56665/09, Karoly Nagy v. Hungary, paras 61--ti2 on Article 6 ECHR.

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such as the right to appeal of those refused entry at the external borders (see Epiney/ Progin-Theuerkauf, Schengen Borders Code Regulation (EU) 2016/399, Article 13 MN 4-5). That distinction becomes relevant if the EU legislature decides to limit rights of appeal on the occasion of a legislative amendment, such as the revision of the Dublin Ill Regulation. 221 If the application of Article 47 of the Charter presupposes the existence of an individual right, the abrogation of statutory guarantees can result in a parallel termination or limitation of the right to appeal, at least for as long as statutory guarantees are not simultaneously covered by a fundamental right The wording of the Charter supports that interpretation, 222 since it does not apply, unlike Article 42(2)(a) of the Charter on the administrative right to be heard,223 to any measure which might negatively affect someone, irrespective of whether the interest concerned corresponded to a statutory individual right. 224 Whether secondary legislation establishes an·individual right has to be decided on the basis of general principles of Union law, which are not crystal clear (see above MN 15). 37d Time is often a matter of great practical importance in border control, asylum and return procedures, in particular when individuals seek to remain on the territory of the Member States. An 'effective remedy' does not generally require automatic suspensive effect, including a right to remain on the territory during judicial proceedings. It is established case law that the frequently-cited 'automatic suspensive effect' -requirement applies only if there is a a real risk of an irreversible human rights violation, in particular of Article 3 ECHR225 (not, however, for private and family lifell 6 ). ln doctrinal terms, automatic suspensive effect requires a domestic court to be able to issue a suspension order; states have a certain leeway how to organise the procedure provided that the result complies with human rights. 227 The ECJ has explicitly endorsed this view. Article 47 of the Charter brings about a right to remain on the territory during court proceedings only if there is a danger of refoulement,228 in particular a 221 See See Anicle 33 of the Proposal for an Asylwn and Migration Management ~ation, COM (2020) 610 of 23 xptember 2020; and Article 28 of the Proposal for a Dublin IV Regulation, COM(2016) 270 of 4 May 2016, which was repealed in 2020. m See AG Bobek, El Hassani, C-403/16, EU:C:2017:659, paras 74-84 emphasising that Article 47(1) of the Charter presupposes a 'right', not an 'interest'; similarly, the established case law on Article 19(4) of the German Constitution, the Grundgesttz, which uses similar terminology and has traditionally been perceived to presuppose the existence on an individual right, whose scope is determined by the legislature unless fundamental rights presaibe otherwise. 223 See General Court, BRF & SHB Comercio e lndwtria de Alimentos v. Commission, T-429/18, EU: T:2020:322, para 83; and ECJ, Foshan Shunde Yongiian Ho~ares & Hardware v. Council , C-141/08 P, EU:C:2009:598, para 74. ii. Contra den Hei_ier, 'Remedies in the Dublin Regulation: Ghezelbash and Karim', CML Rev. 54 (2017), p. 859, 869-870, who suggested to interpret Article 47 of the Charter in line with ECJ, M.M., C-277/11, EU:C:2012:2479, paras 83-87, even though that judgment concerned Article 42(2)(a). w See the summary of general principles in ECtHR. judgment of 12 December 2016, ~o 16483/12 IGC), Kh/aifia tt aL v. Italy, paras 276-277; and ECIHR, judgment of 21 January 2011. No 30696/09 IGC), M.S.S. v. Bdgium and Grteet, paras 289-293. 226 See ECtHR, judgment of 13 December 2012 IGCI, ~o 22689/07, De Souza Ribeiro v. France, paras 82-83. 227 ECtHR. judgment of 5 February 2002, No 51564/99, Conka v. Belgium, para 79: 'may prevent the aecution of measures'; and ECJ, CPAS de Lilge, C-233/19, EU:C:2020:757, paras 49-53; German lawyers, in particular, are advised not to confuse the ECIHR's reference to 'automatic suspensive effect' with suspensive effect under the Gennan administrative court procedure, since the ECtHR, ibid~ requires either a judicial interim measure or the restoration of suspensive effect under German doctrine; see Thym, 'Menschenrechtliche Feinjustierung des Dublin-Systems zur Asylzustiindigkeiuabgrenzung', Zeitschrift fur Auslanderrech1 (2011), p. 368, 374-376. 228 See ECJ, Gnandi, C-181/16, EU:C:2018:465, paras 54-56; ECJ, CPAS de Liege, C-233/19, EU: C:2020:757, paras 61-66; ECJ, Tait C-239/14, EU:C:2015:824, paras 56-58; and ECJ, Abdula, C-562/13, EU:C:2014:2453, paras 44-53.

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Chp. I real risk of inhumane or degrading treatment (see Thym, Legal Framework for EU Asylum Policy, MN 55-63). Automatic suspensive effect, where applicable, concerns the first instance of judicial review only; insofar as domestic law foresees a second instance, suspensive effect is no longer mandatory, even if a potential violation of non-refoulement obligations is at stake. 229 The abstract requirement, in ECtHR case law, that remedies 'must be available in 37e practice as well as in law' 230 can have repercussions for diverse aspects, for instance regarding access lo legal assistance or interpretation services. A good example is the situation in hotspots, which are often situated in the geographic periphery where legal assistance can be difficult or virtually impossible to obtain. Articles 20-23 Asylum Procedures Directive 2013/32/EU contains far-reaching statutory guarantees in this respect, while Article 13(3) Return Directive 2008/115/EC refers to the 'possibility' to obtain legal assistance without obliging state to make them factually available. There is complex human rights case law on conditions under which legal assistance is mandatory, possibly even free of charge in extreme cases, although judges do not recognise a generic and unconditional guarantee. 231 Experts of migration law should recognise that it would have far-reaching practical implications beyond the scope of EU migration law to find otherwise. It is settled ECJ case law that preparatory acts or intermediate procedural decisions need not usually be subject to an independent legal remedy provided that domestic courts can review the legality of these preparatory or intermediate decisions indirectly at a subsequent stage, in particular in the context of legal challenges against the final outcome. 232 The ECJ has applied data protection guarantees under Articles 7 and 8 of the 37 f Charter and Article 8 ECHR to migration control instruments, thereby indicating that the proliferation of databases in the fields of entry, visa, border control ad asylum policies (see Thym, Legal Framework for Entry and Border Controls, MN 10, 17b) is subject to fundamental rights requirements, which, generally, judges in Luxembourg have interpreted dynamically in the field of data protection. Applying the Charter to migration control instruments, the ECJ sought to balance countervailing interests, thereby signalling the double determination to insist, on the one hand, on compliance with fundamental rights, while recognising, on the other hand, that databases can support effective migration management. 233 Notwithstanding scarce judicial practice, data protection presents us with a rich area for legal analy&es, which experts of immigration and asylum law often ignore. It comprises complex rules on the scope of data being stored, access by public authorities depending on the objective pursued or time limits for data retention. 234 In practice, human rights are often superseded by statutory guarantees in the General Data Protection Regulation (EU) 2016/679 and 229 See ECJ, Belastingdienst/Toes/agen, C-175/17, EU:C:2018:776, paras 22-24 paras 22-24, which also highlighted in paras 32-36 that Article 47 CFR does not require a second instance. ' 10 ECtHR, M.S.S. v. Belgium & Greece (Fn. 100), para 290. rn See ECJ, DEB, C-279/09, EU:C:2010:811, paras 37-52; and ECJ, Boudjlida, C-249/13, EU: C:2014:2431, paras 64-70; for further reading, see Majcher, lzabella: The European Union Returns Directive and its Compatibility with International Human Rights Law. Analysis of Return Decision, Entry Ban, Detention, and Removal (Brill Nijhoff, 2020), S. 168-172; and Diekmann, Maren-Kathrin: Menschenrechtliche Grenzen des Riickfiihrungsverfahrens in Europa (Nomos, 2016), p. 195-200. 211 See ECJ, Samba Diouf, C-69/10, EU:C:2011:524, paras 54-55; in line with ECJ, Safalero, C-13/01, EU:C:2003:447, paras 54-56. m See ECJ, A et aL, C-70/18, EU:C:2019:823, paras 52 et seq.; and ECJ, U, C-101/13, EU:C:2014:2249, para 41. 234 See Majcher, Returns Directive, ch. 7; Vavoula, 'The "Puzzle" of EU Large-Scale Information Systems for Third-Country Nationals. Surveillance of Movement and Its Challenges for Privacy and Personal Data Protection', EL Rev. 45 (2020), p. 348-372; Brouwer, Digital Borden and Real Rights

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complex rules in the legislative instruments setting up the Schengen Information System, Eurodac, the Visa Information System, the future Entry/Exit System, or the European Travel Information and Authorisation System.

III. Territorial Scope (Member State Participation) 38

Mirroring the asymmetrical composition of the intergovernmental Schengen Agreement, EU immigration and asylum law contains country-specific opt-outs. More specifically, we need to distinguish different opt-out arrangements for Denmark and Ireland (as well as the United Kingdom before Brexit), which were fortified by procedural twists and a novel degree of selectivity in the Treaty of Lisbon. Unfortunately, the country-specific opt-outs do not follow a uniform rationale and are defined by enhanced degree of complexity. There are differences between the rules governing Denmark and Ireland (and the United Kingdom). Moreover, we are faced with two sets of rules for each of these countries: firstly, measures building upon the Schengen acquis laid down in the Schengen ProtocoJ215 and, secondly, measures building the area of freedom, security and justice that do not form part of the Schengen acquis. 2.J6 These separate areas of legislation are governed by separate protocols, which lay down distinct and special procedures. 217 Altogether, we therefore need to distinguish four distinct optout arrangements for the Ireland and Denmark and for measures (not) building upon the Schengen acquis. 218 39 In practice, the recitals of secondary legislation indicate whether Ireland and Denmark are bound by the relevant instrument and whether it is considered to build upon the Schengen acquis. Usually, the information is contained in the last recitals. The overall picture emanating from these diverse arrangements is complex and can be difficult to monitor. In order to facilitate orientation, the introductions to the different parts of this volume include a list of all measures commented upon with an indication of whether they apply to Ireland or Denmark (and the United Kingdom before Brexit). Corresponding overviews can be found in the sections on border controls and visas (see Thym, Legal Framework for Entry and Border Controls, MN 5), immigration (see Thym, Legal Framework for EU Immigration Policy, MN 5) and asylum (see Thym, Legal Framework for EU Asylum Policy, MN 7). 39a It is a recurrent feature of EU decision-making that the choice of legal basis is politically contested whenever enhanced powers of the European Parliament or qualified majority voting in the Council apply to one possible legal basis only. In line with settled case law, the relevant legal basis has to be determined in light of the (Martinus Nijhoff, 2008), p. 127 et seq.; and Heussner, lnformationssysteme im Europaischen Verwalnmgsverbund (Mohr Siebcck, 2007), p. 190 et seq. m See today's Protocol (No 19) on the Schengen acquis integrated into the framework of the European Union (OJ 2008 C 115/290) and its predecessor (OJ 1997 C 340/93); for how to define which measures build upon the Schengen acquis, see EC), United Kingdom v. Councii C-77/05, EU:C:2007:803, paras 54-68.

rn, See today's Protocol (No 21) on the Position of the United Kingdom and Ireland in Respect of the Area of Freedom, Security and Justice (OJ 2008 C 115/295), which builds upon previous vi:rsions (OJ 1997 C 340/295; and OJ 2006 C 321 E/198); and today's Protocol (No 22) on the Position of Denmark (OJ 2008 C 115/299), which replaces the original Protocol (OJ 1997 C 340/299). m Allegedly, two different working groups preparing the Amsterdam Treaty designed the rules and forgot to align their substance; later IGCs drafting the Treaty of Nice, the erstwhile Constitutional Treaty and the Treaty of Lisbon retained their distinct outline; cf. Kuijper, 'Some Legal Problems Associated with the Communitarization of Policy on Visas, Asylum and Immigration', CML Rev. 37 (2000), p. 345, 352. 2l8 The presentation in this section builds on Thym, Supranational Differentiation, p. 860-867.

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Chp. I predominant purpose and contents of the measure in question; in cases of doubt, the centre of gravity serves as the decisive factor. 239 This raised the question in how far the non-participation of a Member State in decisions adopted on a specific legal basis (such as Articles 77-80 TFEU) can influence the determination. Judges answered the question to the negative: the application of the contents and purpose test is not affected by the opt-outs. 240 Similarly, dual legal bases cannot be relied upon when decision-making procedures in the Council differ as a result of country-specific optouts; whenever the object and purpose test concludes that a measure similarly concerns migration and another topic, not subject to the opt-outs, two separate legal acts have to be adopted. 241 Whenever the centre of gravity lies beyond the area of freedom, security and justice, Ireland and Denmark automatically participate in a measure if the centre of gravity is found not to concern border controls, visas, immigration or asylum policy. Thus, corollary rules on migration in broader trade or development cooperation agreements are adopted on the basis of Articles 206-210 TFEU (see Thym, Legal Framework for Entry and Border Controls, MN 15) in the same way as social security coordination for third country nationals can be based on single market rules or association policies whenever there is a sufficient nexus to these areas (see Thym, Legal Framework for EU Immigration Policy, MN 17).

I. Denmark Denmark did not object to the abolition of internal border controls and had 40 subscribed to the intergovernmental Schengen Conventions prior to the Treaty of Amsterdam. It nonetheless asked for an opt-out, since the supranationalisation of justice and home affairs called into question caveats on these matters that had served as justifications for the Danish government in its campaign for a 'yes' vote in the second referendum on the Treaty of Maastricht. 242 However, the Danish government did not want to leave the Schengen zone and therefore negotiated a 'political opt-in' and 'legal opt-out' 243, which maintained its status as a member of the Schengen group, while guaranteeing that the supranational integration method would not apply; the opt-out is based on 'methodology rather than ideology.' 244 As a result, Denmark cannot at present - unlike Ireland - opt into supranational decision-making on a caseby-case basis. It could, however, terminate or modify the opt-out by means of a simple declaration the activation of which has been made politically conditional upon another referendum. 245 In late 2015, the government called - and lost - such a

2J9 See EC), Commi.ssion v. Council, C-411/06, EU:C:2009:518, paras 4S-46. "" See ECJ, Commission v. Council, C-137/12, EU:C:2013:675, paras 43-44; and ECJ, C-81/13, United Kingdom v. Councit EU:C:2014:2449, para 37. 141 See ~nerally ECJ, Titandioxid, C-300/89, EU:C:1991:244, paras 17-18; and for the opt-outs EC), Opinion 1/15, Draft Agreement between Canada and the EU, EU:C:2017:592, paras 105-118; and EuGH, Istanbul Convention, Opinion 1/19, EU:C:2021:#, paras 302-337. 242 The Protocol on the Position of Denmark enshrined in firm Treaty rules the compromise at the 1992 European Council in Edinburgh, the legal status of which had remained precarious; cf. Howarth, 'The Compromise on Denmark and the Treaty on European Union', CML Rev. 31 (1994), p. 765-805. 20 Den Boer, 'Justice and Home Affairs Cooperation in the Treaty on Ewopean Union', Maastricht Journal of Ewopean and Comparative Law 4 (1997), p. 310,311. 144 Hedemann-Robinson, 'The Area of Freedom, Security and Justice with Rtgard to the UK, Ireland and Denmark', in: O'Kccffeffwomey (eds), Legal Issues of the Ma.utricht Treaty (Chancery Law, 1994), p. 189,297. · m Article 7 of the Protocol No 22 on Denmark allows for its renunciation at any time, also in part. Moreover, Article 8 allows for the substiMion by a 0ellible British-style solution.

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referendum to switch to the more tlmble Irish position, which also resulted in the departure from EuropoJ.246 41 In line with its original compromise to participate in Schengen, while opposing supranationalisation, Denmark retains, with regard to measures building upon the·Schengen acquis,247 the right to 'decide within a period of 6 months ... whether it will implement th~ decision in its national law.' If it decides to do so, this creates 'an obligation under international law between Denmark and other Member States.'2411 Denmark is bound by measures building upon the Schengen acquia on the basis of public international Iaw. 249 The experience in recent years does not indicate any major political disputes or legal difficulties which were directly related to the opt-out. 250 One reason for this comparatively trouble-free performance may be the similarity between the Danish position and the situation of the neighbouring countries Norway and Iceland, which are both associated with the Schengen acquis on the basis of an international association agreement (see Thym, Legal Framework for Entry and Border Controls, MN 29). Mirroring the Schengen Protocol, Denmark has associated itself with the Dublin II Regulation (EC) No 343/2003 on asylum jurisdiction through the conclusion of international agreements between Denmark and the Community/Union. 251 The indirect participating via international agreements creates an acessive complmty, which is also legally problematic, since the ECJ decided with a view to Gibraltar that low-threshold intergovernmental cooperation can be illegal if it evades formal participation under the opt-out protocols. 252 Politically, the EU institutions might have been motivated to accommodate the Danish desire to participate given that the government had tried unsuccessfully to switch to a flexible opt-out.

2. Ireland (and the United Kingdom) 42

The Irish position can only be understood against the background of decades of political debates about the role of the United Kingdom within the European Union, since the UK had always - unlike Denmark - objected to the political project of borderfree travel. Consecutive British governments had maintained that the geographical position of the British Isles, the traditional absence of domestic identification requirements (such as ID cards) and the symbolism of Schengen cooperation as a means for closer European integration warned against British participation. 253 Nonetheless, the 246 53.1 % voted against, 46.9 % in favour of the government proposal; see https://en. wikipedia.org/wiki/ 2015_Danish_European_Union_opt-out_referendwn !last accessed 1 June 2021]. m By contrast, initiatives which are not part of the Schengen acqui.s are subject to a strict opt-out. 248 Article 4( 1) Protocol No 22 on Denmark; if Denmark decides against participation, the other Member Stales may, under Article 4(2), 'consider appropriate measures to be taken', which may jl15tify the reintroduction of border controls in extreme scenarios; see Thym, Ungleichzeitiglceil und Europaisches Verfassungsrecht (Nomos, 2004), p. 110-114, available online at http://www.ungleichzeitigkeitde !last accessed 1 June 2021]. 249 The Protocol refrains from defining of international law; in essence, general principles of Union law, such as dinct and supreme effect, and the ECJ's jurisdiction do not apply. 250 In 2011, the Danish government announced plans to reintroduce limited border controls at the insistence of the populist peoples' party. The project was abandoned when the general elections in 2012 brought a centre-left government into power. m See the Council Decision 2006/188/EC (OJ 2006 L 66/37) approving the agreement; a similar agreement has not been concluded so far for the Dublin Ill Regulation (EU) No 604/2013; for Europol the Agreement on Operational and Strategic Cooperation between the Kingdom of Denmark and Europol of 29 April 2017 in line with Implementing Decision (EU) 2017/290 (OJ 2017 L 42/17) defined Denmark to be a third state (!) for the purposes of the Europol Decision. 252 See ECJ, Spain v. European Parliament & Council (Eurosur), C-44/14, EU:C:2015:554, paras 30-42. m See Wiener, 'Forging Flexibility - The British •~o• to Schengen', EJML 1 (1999), p. 441, 456-459 and the evidence in House of Lords Select Committee on the European Communities, Schengen and the United Kingdom's Border Controls, ;,1ll Report, Session 1998/99.

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Cbp. I Labour government under Tony Blair's leadership was willing to consent, at the final stages of the intergovernmental conference for the Amsterdam Treaty, to the integration of the Schengen acquis into the EU framework under the condition that Britain retained a special status with a flaible opt-out with an option to sign up to individual projects. Ireland was factually obliged to follow its neighbour, since it wanted to maintain the Common Travel Area providing for passport-free travel in the British Isles, including Northern lreland. 2S4 As in the case of monetary union, the asymmetry of the Schengen law was characterised by an inherent pragmatism: the opt-out was a compromise to secure the unanimity necessary for Treaty change which was necessary to integrate the Schengen Agreement into the EU framework. 255 Upon closer inspection, the British/Irish opt-out is the most prolific expression of the 43 a la carte logic of principled freedom. 256 Firstly, Ireland (and Britain) retain the right, during the legislative process, to 'notify ... that they wish to take part' in the adoption of a proposal. 257 On this basis, Ireland (and the United Kingdom) decided to partidpate in the legislative procedure ex ante for many (not all) measures on immigration and asylum (see above MN 39). Such opt-in was a one-way street towards closer integration, until the Lisbon Treaty granted Britain and Ireland the option of unilateral withdrawal (see below MN 45). Secondly, they retain the option of a post accession. Ireland (and Britain) 'may at any time request to take part in some or all of the provisions' that define the original Schengen acquis or which have been adopted in other segments in the area of freedom, security and justice.2S8 Both countries joined important areas of the original Schengen cooperation, in particular the Schengen Information System, albeit without subscribing to the abolition of border controls. 259 The combined effect of ex ante and ex post participation was quite constructive. Ireland's freedom of choice is not absolute. The Scbengen Protocol limits partidpa- 44 tion to proposals and initiatives 'which are capable of autonomous application.' 260 This meant, in the eyes of the Council, that two British requests for participation in the borders agency Pronta and a regulation on security features in travel documents had to be rejected, since both were intractably linked to aspects of the Schengen acquis, in particular to border controls, which the United Kingdom had refused to endorse. 261 The ECJ confirmed this standpoint in two judgments which demonstrated a certain willingness on the side of the Court to ensure that the opt-outs do not undermine the uniform and coherent application ofSchengen law. 262 Since the Lisbon Treaty leaves the relevant provisions intact, this case law remains relevant: Ireland may not sign up to n 4 See Fahey, 'Swimming in a Sea of Law', CML Rrv. 47 (2010), p. 673, 679-682 and the Declaration (So 56) of Ireland (OJ 2008 C 306/268). Ireland has later occasionally punued a more restrictive approach and opted out of some initiatives despite of British participation. 255 See Thym, Supranational Differentiation, p. 852-855. 256 See Thym. Supranational Differentiation, p. 851-852. 257 Anide 3(1) Protocol (No 21) on the Position of the United Kingdom and Ireland in Respect of the Area of Freedom, Security and Justice (OJ 2008 C 115/295); similarly for Schengen-related instruments, see Article 5(1) Protocol (No 19) on the Schengen acquis (OJ 2008 C 115/290). l58 See Article 4 Schengen Protocol and Article 4 Protocol So 21. l59 See, on the UK, Decision 2000/365 (OJ 2000 L 131/43) and, on Ireland, Decision 2002/192 (OJ 2002 L 64/20); for non-Schengen measures see Decision 2009/26/EC (OJ 2009 L 10/22), Decision 2009/350/EC (OJ 2009 L 108/53) and Decision 2009/451/EC (OJ 2009 L 149n3). 260 Advocate General Verica Trstenjak, United Kingdom v. Councit C-77/05, EU:C:2007:419, para 107. 261 Legally, both disputes concerned the delimitation of Articles 4-5 Schengen Protocol and the (mott flexible) rules of Protocol No 21 (n 237); see ECJ, United Kingdom v. Councit C-77/05, EU:C:2007:803; and EC), United Kingdom v. Councit C-137/05, EU:C:2007:805. 26l See Fletcher, 'Schengen, the European Court of Justice and Aexibility under the Lisbon Treaty', EuConst 5 (2009), p. 71, 83-88.

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measures building on the Schengen acquis if they require the application of the broader legislative or operative context. 263 45 During the intergovernmental conference drafting the Lisbon Treaty, the British government demanded and obtained further flexibility. 264 London insisted upon the right to opt out of ameodmenta of instrummta in whose adoption it bad earlier decided to partidpate. 265 Again, Ireland followed the example of its neighbour. By means of a simple declaration, it may withdraw itself from an ongoing legislative process, although it is bound by the instrument the other Member States want to modify - an option Britain chose to use for the revision of the Asylum Qualification Directive.Ui6 From the perspective of legal certainty, it is regrettable that Ireland will continue to be bound by previous rules, even if these rules are repealed with regard to all other Member States as a result of the amendment. 267 If the Irish excluded themselves from amendments. the Council could vote against continued participation in related instruments if such 'rump' legislation cannot be applied effectively. 268 The example of Frontex demonstrates that the ECJ may support the Council in cases of conflict (see above MN 44). 45a As a result of Brexit, the UK stopped being bound on I January 2021 when the transitional period under the Withdrawal Agreement came to an end. As a result, Bra.it had a paradoxical effect in the field of migration: even though the desire to 'take back control' played a prominent role in the debate prior to the Brexit referendum, 269 withdrawal may complicate British policy towards third country nationals. While it had benefited from a flexible opt-in option as a Member State and decided to participate in the Schengen Information System or the Dublin II and Ill Regulation, it cannot do so any longer. Instead, it may have to pay a political 'price' to convince Brussels to join existing initiatives on the basis of an international agreement. 270 This was confirmed during negotiations on the Trade and Cooperation Agreement during which the EU rejected the British proposal of a readmission agreement that could have served as a partial replacement for the Dublin III Regulation. 271 Nevertheless, the British government changed domestic regulations to allow the rejection of asylum claims on the basis of a safe third country provision, which includes EU countries under the condition that they are willing to take-back a i.,

Stt Wilderspin, 'Article 77 TFEU', in: Kdlerbauer/Klamertffomkin (eds), The EU Treaties and the

Charter of Fundamental Rights. A Commentary (OUP, 2019), paras 9-10; and Piris. The Lisbon Treaty (CUP, 2010), p. 199. 264 Sec No 19 lit. I of the JGC Mandate, Council doc. 11177/07 of 26 June 2007; on the allegedly tough negotiations see Ladenburger, 'Police and Criminal Law in the Treaty of Lisbon,' EuConst 4 (2008), p. 20, 28. i. 5 Sec Article 5(2)-(5) Schengcn Protocol and Article 4a Protocol No 21. ™ Contrast Recital 50 of the Asylum Qualification Directive 2011/95/EU to Recital 38 of the former Asylum Qualification Directive 2004/83/EC. 267 Legally, the repeal of the earlier measure through new legislation does not extend to the United Kingdom, since the latter is not bound by the amendment; d. by way of example, Article 40( 1) of the Asylum Qualification Directive 2011/95/EU; see also House of Lords Select Committee on European Union, 7°' Report of the Session 2008-09, paras 15-20 and Peers, EU Justice, p. 29-33. 268 Sec Article 5(3) Schengen Protocol and Article 4a(2) Protocol No 21. i.9 Stt Cunice, 'Why Leave Won the UK's EU Referendum', JOW"Tlal of Common Market Studies Special Edition 55 (2017), p. 19, 21-23, 28-29. 270 See Thym/Wendel, 'Immigration after Brexit. Ironies and Challenges', in: Pernice/Guerra Martins (eds), Brexit and the Future of EU Politia. A Con.stitutional Law Perspective (Nomos, 2019), p. 185; and Thym, 'The Irony of Brcxit for Immigration Control', EULawAnalysis of 20 October 2017, available at http://eulawanalysis.blogspot.com/2017/10/the-irony-of-brexit-for-immigration.html !last accessed 1 June 2021). 271 See Hulme, 'Analysis of the United Kingdom's Proposal for a UK-EU Readmission Agreement', EULawAnalysis of 20 August 2020, available at http://eulawanalysis.blogspot.com/2020/08/analysis-ofunited-kingdoms-proposal.html !last a"essed 1 June 20211.

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Chp. I person and without the need for a meaningful link with the country concerned. 272 It also indicated its political intention to negotiate bilateral readmission agreements 'with the most concerned Member States.'273 With regards to the status of British nationals residing in the EU and Union citizens living in UK, we have to distinguish between the acquired rights of those who moved to the other country before the end of the transitional period under the Withdrawal Agreement and the limited guarantees for those entering after I January 2021 on the basis of the new Trade and Cooperation Agreement (see Thym, Legal Framework for EU Immigration Policy, MN 61). Moreover, bilateral agreements or political arrangements on other questions, such as border control cooperation, continue to apply and may be extended in the coming years. They exist in particular between France, Ireland and the United Kingdom.

IV. Human Rights and International Law EU legislation is based on the general commitment in Article 6 TEU to recognise 46 the rights, liberties and principles laid down in the Charter of Fundamental Rights (see below MN 47-50), the European Convention of Human Rights (see below MN 51-52) and the unwritten general principles of Union law, which may include international human rights (see below MN 53-55). It is beyond doubt that legislation in the field of immigration and asylum must comply with the human rights standards put forward in the Charter and related documents. By contrast, the weight of international treaties concluded with third states requires careful analysis, since the ECJ traditionally attaches great importance to the autonomy of the EU legal order vis-a-vis the international legal environment (see below MN 56-60). The substantive reach of the human rights case law will be taken up in the introductory chapters to the different policy fields with regard to access to the territory extraterritorial activities and detention (see Thym, Legal Framework for Entry and Border Controls, MN 32-46), non-refoulement and the right to asylum (see Thym, Legal Framework for EU Asylum Law, MN 55-63) as well as equal treatment, private and family life and the rights of the child (see Thym, Legal Framework for EU Immigration Law, MN 37-42, 53-55). Procedural guarantees and data protection have been discussed above (see MN 37-37 01. Charter of Fundamental Rights

The entry into force of the Treaty of Lisbon rendered the Charter of Fundamental 47 Rights legally binding; the rights and principles therein 'shall have the same legal value as the Treaties' 274 • Respect of the Charter is mandatory for the EU legislature and can be enforced in actions for annulment before the Court of Justice irrespective of whether the recitals of EU legislation invoke the Charter expressly. 275 Moreover, directives and regulations have to be interpreted in accordance with the Charter as far as possible in cases of potential conflict (see above MN 14). Aside from the EU institutions, Member 272 See 'UK to Deny Asylum to Refugees Passing through "Safe" Third Country', The Guardian of 10 December 2020, available at https://www.theguardian.com/uk-news/2020/dec/10/uk-to-deny-asylwnto-refugees-passing-through-safe-third-country (last acccsscd 1 June 2021). 273 See the Joint Political Declaration on Asylum and Returns (OJ 2020 L 444/1477). 274 Article 6(1) TEU. Z75 See Article·2S8(2) TFEU; alternatively, domestic courts can send preliminary references under Article 267 TFEU, which are mandatory also for coW1s of first instance when they consider EU secondary law to be invalid; cf. ECJ, Foto Frost, 314/85, EU:C:1987:452.

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States are bound by the Charter but 'only when they are implementing Union law.'276 In its Akerberg Fransson judgment, the ECJ maintained that Member States are bound 4 A generic provision on the justification of restrictions can be found in Article 52( 1) of the Chaner. 295 See Article 52(5) of the Charter, which leaves open which provisions guarantee individual rights or contain only 'principles'. 290 Cf. Article 52(5) of the Chaner, which excludes, as a result, that individual rights can be deduced directly from principles; for further comments, see Jaiiskinen, 'Fundamental Social Rights in the Charter', in: Peers/Hervey/Kenner/Ward, The EU Chaner, p. 1703-1714. '"

2118

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The relevance of individual guarantees will be discussed in the thematic introductions to the different chapters of this Commentary. Relevant provisions include procedunl guarantees for administrative proceedings and judicial review, including data protection (see above MN 37-37 O. With regard to border controls and visas, the extraterritorial application and the relative liberty of public authorities in regulating access by migrants to EU territory, search and rescue and rules on detention are pertinent (see Thym, Legal Framework for Entry and Border Controls, MN 32-46). In the context of legal migration, the guarantee of private and family life and the rights of the child in Articles 7 and 24 of the Charter (see Thym, Legal Framework for EU Immigration Policy, MN 52-58), the provisions on equal treabnent (see ibid., MN 37-42) as well as limited guarantees on the labour market and intn-European mobility deserve closer attention (see ibid., MN 34-35), whereas the right to asylum and non-refoulment obligations in Articles 4 and I 8 of the Charter are crucial for asylum law, since they reaffirm guarantees under the ECHR (see Thym, Legal Framework for EU Asylum Policy, MN 55-63). Moreover, other provisions may have an indirect effect, including human dignity297 or the social rights and principles (see above MN 49). 298 Few ECJ judgments have explored this potential so far, but judges in LW[embourg might do so. 299

2. European Convention on Hu.man Rights 51

In its human rights case law, the ECJ has traditionally afforded special significance to the European Convention of Human Rights (ECHR), although the EU is not an official state party to the Convention. Article 6(2) TEU allows for the formal accession of the EU to the ECHR and a draft accession agreement had been negotiated before it was blocked by the ECJ due to concerns about the autonomy of the supranational order. 300 Remarkably, asylum law was one of the issues of concern for judges in Luxembourg, 301 since the human rights court in Strasbourg had challenged the principle of mutual respect, which, in the eyes of the ECJ, underlies cooperation in the area of freedom, security and justice, including the Dublin III Regulation (see Hruschka/Maiani, Regulation (EU) No 604/2013 Article 3 MN 7-16). Political negotiations about a revision of the accession agreement were ongoing at the time of writing. It should be noted, however, that the formal accession of the EU to the ECHR would primarily have procedural consequences. For instance, individuals could seize the ECtHR, after having exhausted local remedies before EU courts, against an alleged human rights violation which can be attributed to Frontex. 302 Accession would not, by contrast, would not change the constitutional status of the ECHR under EU law,303 which, even after accession, would retain a formal rank below primary law, like other international treaties concluded by the EU (see below MN 55). This implies that the position of the ECJ prevails in a rare case of conflict with

2'17 See the prohibition of cenain interrogation techniques to determine whether an asylum seekers is gay or lesbian by ECJ, A, B & C, C-148/13-C-150/13, EU:C:2014:2406, paras 65-66; and ECJ, f, C-473/ 16, EU:C:2018:36, paras 27-53; in both cases the reference to Art. I of the Chaner remained abstract as one argument amongst others. 191 See ECJ, Kamberaj, C-571/10, EU:C:2012:233, para 92; and the far-reaching proposal by Inglese, The Right to Healthcare in the Common European Asylum System', EJML 20 (2018), p. 135-156. 299 for a rich analysis see Sanchez Iglesias, 'The Constitutional Status of Foreigners and EU Citizens', in: Thym (ed). Questioning EU Citizenship (Bloomsbury/Han, 2017), p. 243-266. JOO See ECJ, Accession to the ECHR, Opinion 2/13, EU:C:2014:2454. 101 See ECJ, ibid., paras 192-195. 10 z At present, the ECtHR would deny jurisdiction, in line with ECtHR. judgment of 30 June 2005 [GC). No 45036/98, Bosphorw Airways v. Ireland, paras 149-158. 10 ' See ECJ, ibid., paras 189-190.

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Chp. I the ECtHR, while the principled orientation of the Charter al the ECHR guarantees widespread convergence in regular circumstances (see above MN 48). Unlike many international agreements, such as the Refugee Convention, the ECHR Sia establishes a mandatory court system providing for authoritative interpretation and enabling anyone to seek redress against an alleged violation of fundamental rights before the European Court of Human Rights (ECtHR). People who are not familiar with EU law should make an effort not to confuse the ECtHR in Strasbourg with the ECJ in Luxembourg. While the latter can apply supranational EU legislation to the 27 Member States of the European Union, the former is responsible for applying the ECHR to the 47 members of the Council of Europe. While the ECJ is usually consulted indirectly via domestic courts sending preliminary references to Luxembourg, the ECtHR can be seized directly by individuals (not only nationals) who have exhausted local remedies. 304 Over the past two decades, a great number of applicants have seized the ECtHR in immigntion and asylum matters, thereby stretching the ECtHR's institutional resources. 305 One way of responding to the immense workload is to actively engage domestic courts. 306 Judges in Strasbourg have made a deliberate effort in recent years to lay down dear standards that can guide the effectively application of the ECHR by domestic courts. 307 Judgments of the Grand Chamber are particularly relevant in this respect. Many rulings distinguish between abstract 'general principles' and the 'application to the present case', thereby allowing readers from academia or practice to identify the standards that can be generalised. The case law will be discussed in the introductory chapters on the subject area for 52 which it is most relevant. Article I ECHR and to a lesser extent Article 5 ECHR are central to the debate on extraterritorial jurisdiction and corresponding guarantees to enter EU territory (see Thym, Legal Framework for Entry and Border Controls, MN 32-45). Private and family life under Article 8 ECHR and equal treatment under Article 14 ECHR are particularly important for those residing in the EU already (see Thym, Legal Framework for EU Immigration Policy, MN 37-42, 52-58). The prohibition of inhuman and degrading treatment as well as the guarantee of an effective remedy in line with Articles 3 and 13 ECHR inform the analysis of asylum law (see Thym, Legal Framework for EU Asylum Policy, MN 56-60).

3. Refugee Convention and International Human Rights Article 78(1) TFEU mandates that the EU asylum acquis complies with the Refugee 53 Convention and the 1967 Protocol relating to the status of refugees and other relevant treaties. This obligation has been put into effect by the ECJ, which reaffirmed, in a number of judgments, that the EU asylum acquis must be interpreted taking into account the Geneva Convention (see Thym, Legal Framework for EU Asylum Policy, MN 47-54). From a legal perspective, this obligation to respect the Geneva Convention and the 1967 Protocol flows from EU primary law, since the EU has not formally acceded to the Refugee Convention or assumed the functions of Member States by means of functional succession (as it had previously done with regard to the GATT Agreement). 308 As a result,

'°' Anicles I and 34 ECHR do not distinguish between nationals and foreigners . See the former President Wildhaber, 'Ein Oberdenken des Zustands und der Zukunft des Europaischen Gerichtshofs fur Menschenrechte', Europaische Grundrechte-Zeitschrift (2009), p. 541-553; and, more generally, Greer, The European Convention on Human Rights (CUP, 2006), chs 2-3. -The so-called "principle of subsidiarity' was reinforced by the Protocol Nos 14-16 to the ECHR (CETS Nos 204,213,214) . .107 See Gerards, General Principles of the European Convention on Human Rights (CUP, 2019), ch. 2. J011 See ECJ, Qurbani, C-481/13, EU:C:2014:2101, paras 22-29. .IDS

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the ECJ holds no autonomous jurisdiction to interpret the Refugee Convention; it only does so in conjunction with secondary Union law, in particular the Asylum Qualification Directive 2011/95/EU. Recital 23 of the Directive states explicitly that its provisions should 'guide the competent national bodies of Member States in the application· of the Geneva Convention.' 54 International human rights treaties are not directly binding upon the European Union, since it has not acceded to them under international law. They can however be relied upon indirectly as a source of inspiration for the interpretation of the unwritten general principles of Union law that complement the human rights in the Charter.l09 On this basis, the ECJ recognised explicitly that the International Covenant on Civil and Political Rights (ICCPR) can be relied upon in order to identify the contents of EU human rights, 310 although judicial practice has remained sketchy, partly because ICPR guarantees usually fall short of the ECtHR jurisprudence.311 In line with established ECJ case law, other international agreements can be considered legally binding if they have been ratified by all Member States. This means that the UN Convention on the Rights of the Child312 and the European Social Charter3 13 , as well as the UN 314 and the European 115 conventions against torture3 16 can be relied upon in order to identify unwritten principles of European Union law. When applying these conventions we have to ensure that potential reservation or interpretative declarations of the Member States, which are particularly widespread in the case of the European Social Charter, are respected; EU law cannot be used to bypass these caveats. A particular case is the UN Convention on the Rights of Persons with Disabilities, which was ratified by the EU as a state party. 317 54a Treaty bodies established under international human rights instruments are, unlike the ECJ or the ECtHR, no international courts with the power to authoritatively decide individual cases or to lay down the authentic interpretation of human rights treaties. It was explicitly recognised by the ECJ that the 'opinions' or 'views' of international treaty bodies, such as the Human Rights Committee, are not usually legalfy binding.318 However, that does not render them irrelevant. Their position presents one view among many in which direction human rights law can develop. They have gained visibility within the European debate in recent years.3 19 J09

Cf. Anicle 6(3) TEU, although the provision does not list international hwnan rights treaties

explicitly; for further reflection, see Rosas, 'The Chaner and Universal Hwnan Rights Instruments', in: Peers/Hervey/Kenner/Ward, The EU Chaner, p. 1685-1702. 110 See EC}, European Parliament v. Council, C-540/03, EU:C:2006:429, para 37. 1 11 See Fitzpatrick, 'The Hwnan Rights of Migrants', in: Aleini.koff/Chetail (eds). Migration and International Legal Nonm (T.M.C. Asser, 2003), p. 169, 171-178. m See ECJ, European Parliament v. Counci~ C-S40/03, EU:C:2006:429, para 37. m See ECJ, European Parliament v. Counci~ C-540/03, EU:C:2006:429, para 39; the European Social Chaner has a cenain impact in the field of family reunion, see Hailbronner/ Arevalo, Directive 2003/86/ EC Anicle 3; generally, see O'Cinneide, 'Migrant Rights under the European Social Chaner', in: Costello/ Freedland (eds), Migrants at Work (OUP, 2014), p. 282-302. 31 ◄ See the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of 10 December 1984, UNTS Vol 1465, p. 85; for ratifications, see http:// indicators.ohchr.org [last accessed I July 20201. 115 See the European Convention for the Prevention of Tonure and Inhwnan or Degrading Treatment or Punishment of 26 November 1987, CETS ~o 126; for ratifications. see http://conventions.coe.int !last accessed I Iune 2021 I. 11 • Their relevance for the general principles of EU law has not been recognised explicitly by the ECJ

yet. m UNTS Vol. 2515, p. 3; by way of eumple, see ECJ, Z., C-363/12, EU:C:2014:159, paras 73-90. See ECJ, Grant, C-2-49/96, EU:C:1998:63, para 46; for funher reading. see Tomuschat, Human Rights. 3rd edn (OUP, 2014). chs 6-8. 119 See c;;aweosteUo/Cunningham, 'Hard Protection through Soft Couns?', German Law Jownal 21 (2020), p. 355-38-4. 118

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Chp. 1 By contrast, the European Union is not bound by international human rights treaties SS that have not been ratified by all Member States (see above MN 54). 320 This implies that the UN Convention on Migrant Worken321 has no legal effect in the EU legal order, since it has not been ratified by a single EU Member State.322 The same applies to most Conventions of the International Labour Organisation, most of which have not been ratified by all EU Member States and which cannot be relied upon as a legal yardstick for judicial review in the field of EU immigration and asylum law as a result 323 Finally, most international treaties concluded within the framework of the Council of Europe with a potential impact upon migration law obtained only a limited number of ratifications (see below MN 59) - with the notable exception of the European Convention of Human Rights and the European Social Charter, which form the bedrock of Europe's regional human rights obligations thus far (see MN 51, 54). 4. Other International Agreements With regard to international treaties on other themes than human rights, one should 56 distinguish between treaties between the EU and third states (or international organisations) and treaties of the Member States (see below MN 58). In so far as international agreements concluded by the European Union are concerned, it should be remembered that the ECJ has categorically upheld that the EU Treaties have established an autonomous supranational legal order distinct from public international law ever since the seminal Costa/E.N.E.L. judgment.324 It maintains, on this basis, that the legal effects of international agreements in the EU legal order are determined by the latter. It is settled case law that international agreements concluded by the EU institutions 'form an integral part of [Union] law' 325 and can benefit, as a result, from the same effects as regular EU law within the domestic legal orders of the Member States, including primacy over national law in cases of conflict. 326 The EQ assumes, moreover, that international agreements can be relied upon to challenge the validity of EU legislation. 327 Provisions of international agreements concluded by the EU have a hienrchical status above secondary legislation but below the EU Treaties. Not even resolutions of the UN Security Council may claim a higher normative rank than EU primary law, 328 nor can the European Convention on Human Rights and corresponding ECtHR case law (see above MN SI). The practical relevance of international agreements concluded by the EU is compro- 57 mised significantly by settled ECJ case law rendering the effects mentioned above subject 320 Cf. argumentwn e contrario ECJ, European Parliament v. Council, C-540/03, EU:C:2006:429, para 37; as well as Article 53 of the Chaner, although it could be argued that the non-ratification by one or two Member States does not prevent the ECJ from having recourse to the agreement as a source of inspiration. m See the International Convention on the Protection of the Rights of All Migrant Woriters and Members of Their Families, l.INTS vol 2220, p. 3; for ratifications, see http://indicators.ohchr.org [last accessed' I June 2021); for further comments, see Cholewinski, Migration and Human Rights. The United Nations Convmtion on Migrant Workers' Rights (CUP, 2009); and Desmond, 'The Triangle that Could Square the Circle?', EJML 17 (2015), p. 39-69. 312 Cf. the list of ratifications at https://treaties.un.org/P111esNiewDetails.aspx?src=TREATY&mtdsg_no=IV-13&chapter=4 [last accessed 1 June 2021]. m For an overview of the !LO instruments, see Wiesbrock, Legal Migration, p. 247-252. 324 Cf. ECJ, Costa v. E.N.E.L, 6164, EU:C:1964:66. 325 ECJ, Haegemann II, 181/73, EU:C:1974:41, para 5. 326 On the conditions for direct applicability and primacy, see below MN 57. m See, generally, ECJ, lATA & ELF.AA, C-344/04, EU:C:2006:10, para 34; and, for visa policy, ECJ, Soysal & Savatli, C-228/06, EU:C:2009:101, paras 58-61. 328 Cf. ECJ, Kadi & Al Baraak v. Council & Commission, C-402/05 & C-415/05 P, EU:C:2008:461, in pan. paras 305-309.

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to direct applicability. Provisions in international treaties that are not directly applicable cannot be relied upon by individuals or national courts to challenge the validity of secondary Union legislation or domestic rules. 329 In the absence of direct applicability, the ECJ also excludes indirect effects, such as consistent interpretation. 330 In assessing whether international treaties can be directly applied, the ECJ highlights their international legal character and the corresponding applicability of the Vienna Convention on the Law of Treaties in the context of interpretation of agreements concluded by the EU,331 which may deviate from the interpretative standards for supranational EU law (see above MN 10-20). While the ECJ has traditionally been rather strict towards international agreements of global reach, such as world trade law or the Convention on the Law of the Sea, it is more generous when it comes to association agreements. 332 Among the association agreements, the Ankara Agreement between the EEC and Turkey has become particularly relevant (see above MN 19; and Thym, Legal Framework for EU Immigration Policy, MN 60), while the agreements with the UK contain explicit clauses to what extent they can be relied upon in national courts (see Thym, Legal Framework for EU Immigration Policy, MN 61). Interpretation in light of public international law implies, moreover, that even provisions with an identical wording may have a different meaning than equivalent rules in EU legal instruments. 333 58 International agreements concluded by Member States (not the European Union) are not binding on the EU institutions under public international law. While international human rights instruments ratified by all Member States can be invoked indirectly (see above MN 54), other agreements concluded by Member States cannot be relied upon in the EU legal order, even if they have been ratified by all Member States: the ECJ maintains that such agreements can only be invoked if they reflect customary international law and are directly applicable3 34 - a double condition that is rarely met. In so far as these agreements were concluded prior to EU accession (or the conferral of corresponding competences to the EU level), they may benefit from the safeguard clause in Article 351 TFEU, which provides that the EU Treaties and secondary legislation do not prevent Member States from fulfilling their obligations under pre-existing agreements with third states. 335 This safeguard for earlier agreements is static, i.e. Member States loose the capacity to amend them. 336 In practice, respect for existing obligations is often guaranteed through explicit safeguard clauses in EU secondary legislation stating that Member States remain free to retain more favourable national provisions in line with international agreements (see above MN 32-33). From a legal point of view, these provisions are declaratory in nature in so far as they relate to pre-existing agreements concluded prior to accession to the European Union that are covered by Article 351 TFEU. 59 Insofar as safeguard clauses in secondary legislation refer to existing agreements, the latter have to be ratified before the adoption of EU measure in question. They can concern bilateral treaties on commerce and navigation, which never gained much Stt ECJ, Z., C-363/12, EU:C:2014:159, paras 84-86. Stt Thym, 'Foreign Affairs', in: von Bogdandy/Bast (eds), Principles of European Constitutional Law, 2nd edn (Hart, 2009), p. 309, 320-323. m Stt EC), Walz, C-63/09, EU:C:2010:251, para 23. m Stt Thym, 'Foreign Affairs', in: von Bogdandy/Bast (eds), Principles of European ConstitMtional Law, 2nd edn (Hart, 2009), p. 309, 322-323. m This was established first by ECJ, Polydor, 270/80, EU:C:1982:43, paras 14-21; and has been reaffirmed for immigration-related agreements by ECJ, Demirkan, C-221/1 I, EU:C:2013:583, paras 44-61. m Cf. ECJ. lntmanko, C-308/06, EU:C:2008:312, paras 48-52. m For more comments, see Koutrakos, EU International Relations Law, 2nd edn (Hart, 2015), ch. 9. n• Stt ibid. and ECJ, Commission v. Austria, C-205/06, EU:C:2009:118. 329 330

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Chp. 1 influence in most domestic legal orders. 337 More important are multilateral agreements within the framework of the Council of Europe, which - like the bilateral treaties on

commerce and navigation - confer reciprocal rights only upon the nationals of state parties and did not gain much practical influence either. 338 When discussing these agreements, it is necessary to assess existing ratifications on a case-by-case basis: the European Convention on the Legal Status of Migrant Workers of 1977 was ratified by eleven state parties, including six EU Member States and five third states339 and the European Social Charter is binding upon most Member States and many third states. 340 The European Convention on Social and Medical Assistance of 1953 applies to several Member States as well as Norway, Iceland, the United Kingdom and Turkey3"' 1 and the European Convention on Establishment of 1955 was ratified by nine EU Member States as well as Norway, Iceland, the United Kingdom and Turkey. 342 Given that the nationals of Norway and Iceland hold extensive rights under the EEA Agreement, the practical relevance of theae conventions is extremely limited at present; they relate in particular to Turkish nationals residing legally in Member States to which the conventions apply. m See Paulus, Treaties of Friendship, Commerce and Navigation', in: The Max Planck Encyclopedia of Public International Law, OUP: online edition, http:l/www.mpepil.com, last updated March 201 I, paras 9-13; and Randelzhofer, Du Einfluss des Volker- rmd Europarechts au/ das deutsche Aus/anderrecht (De Gruyter, 1980), p. 32-40. 338 See Oellers-Frahm, The Contribution of the Council of Europe to the Legal Position of Aliens', in: Frowein/Stein (eds), Die RechtssteUung von Auslandern nach staatlichem Recht und Viilkerrecht, Vol. 2 (Springer, 1987), p. 1725-1773; and Groenendijk, 'Long-Term Immigrants and the Council of Europe', EJML I (1999), p. 275, 286-288. 339 Convention of 24 :--lovember 1977, CETS No 93, entry into force on I May 1983; it has been ratified by France, Italy, the :--letherlands, Portugal, Spain and Sweden - as wdl as the third states Albania, Moldova, Norway, Turkey and Ukraine; see https://www.coe.int/en/web/conventions/full-list [last accessed on I June 2021). }. 10. The Member State(s) concerned shall provide training to the external service provider, corresponding to the knowledge needed to offer an appropriate service and sufficient information to applicants. 11. The Member State(s) concerned shall closely monitor the implementation of the legal instrument referred to in paragraph 2, including: (a) the general information on the criteria, conditions and procedures for applying for a visa, as set out in points (a) to (c) of Article 47(1), and the content of the application forms provided by the external service provider to applicants; (b) all the technical and organisational security measures required to protect personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the cooperation involves the transmission of files and data to the consulate or the central authorities of the Member State(s) concerned, and all other unlawful forms of processing personal data; (c) the collection and transmission of biometric identifiers; (d) the measures taken to ensure compliance with data protection provisions. To this end, the consulate(s) or the central authorities of the Member State(s) concerned shall, on a regular basis and at least every nine months, carry out spot checks on the premises of the external service provider. Member States may agree to share the burden of this regular monitoring.

'" Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation) (OJ L 119, 4.5.2016,

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Art. 43

Visa Code Regulation (EC) No 810/2009

I IL By 1 February each year, Member States shall report to the Commission on their cooperation with, and monitoring, as referred to in point C of Anna X. of external service providen worldwide. 12. In the event of tennination of cooperation with an external service provider, Member States shall ensure the continuity of full aervice. 13. Member States shall provide the Commission with a copy of the legal instnunent referred to in paragraph 2. 1

Article 43(1), following from Article 8(10) and Article 40(3), provides that Member States shall endeavour to cooperate with an external service provider. Such cooperation is considered indispensable by the Member States for visa processing and has grown exponentially between 2014 and 2018, with an increase of 840 % in the locations covered by external service providers. which in 2018 amounted to 1263. 215 Under Article 43(2), cooperation between a Member State and an external service provider must be based on a legal agreement that fulfils the requirements set in Annex 10 relating to the activities to be performed by the external service provider, data protection, staff selection, training and conduct, as well as monitoring and inspection of the external service provider's activities by the Member States. Article 44(7) to (l l) further establishes rules in relation to the selection, training and monitoring of the external service provider by the Member State. A report under the Schengen evaluation mechanism in 2020 identified however as a recurring deficiency that the monitoring of external service providers 'was not always adequate and contracts and practices did not always comply with legal requirements',™ and a consensus has emerged in favour of strengthening the applicable legal framework. 287 2 Article 43(6) establishes which activities can be entrusted to external service providers. including providing information to the public and collecting applications and biometrics from visa applicants. Article 43(4) and (5) reiterates that the examination of applications, interviews, the decision on applications and access to the VIS are solely for consulates or central authorities. Similarly, external service providers must not become aware of the results of applications that they deal with. However, the impact that external service providers have on visa issuing remains controversial. 288 There have been, for example, many complaints of poorly informed external service provides, and of external service providers refusing to accept applications for multiple-entry visas or applications which were considered incomplete. 289 This is a serious problem as it constitutes an interference with the Member States' sole responsibility to assess visa applications and impedes the exercise of Member States' discretion under Article 19(4) on admissibility of applications, Article 24(2c) on multiple-entry visas and Article 25(1) on limited territorial validity visas. For applicants, the situation is exacerbated by the fact that the obligation whereby the Member States had to grant direct access to consulates to visa applicants when cooperating with external service providers has been removed from the Visa Code (see Article 17 MN 2). In this context, a relating problem faced by applicants is that the service fee charged by the external service provider can make the visa application considerably more expensive. Furthermore, the legal agreement between the external service provider and the Member State may allow for the provision of additional services

11" 206

Commission Staff Working Document, SWD(2018) 77 final, p. 8, SO and 71. Commission Report, COM(2020) 779 final, p. 9. "' 7 Commission Staff Working Document, SWD(2018) 77 final, p. SO, 74 and 88. 21111 Sanchez-Barrueco, Business as usual; Infantino, OutsoW"cing Border Control: Politics and Practice of Contracted Visa Policy in Morocco (Palgrave Macmillan, 2016). m Commission Report, SWD(2020) 327, p. 9; Commission Staff Working Document, SWD(2014) IOI final, p. 34; Fundamental Rights Agency, Annual Report 2013, p. 70.

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by the external service provider for additional fees, including assistance with filling the application, courier services and VIP services. 290 When this is the case, the Member State is under an obligation to instruct the service provider to clearly inform applicants that such additional services are optional, but some applicants will still consider them as indispensable. In this context, following a Schengen evaluation report, the Council recommended to a Member State, for example, 'to ensure that payments for premium services do not allow the applicant to obtain an appointment at the external service provider any earlier than applicants who do not pay for optional services'. 291 A further problem linked to outsourcing relates to data security. 292 There are categories of applicants, such as human rights defenders, who are particularly reluctant to entrust their personal data to external services providers, and, on occasions, external service providers have been responsible for serious breaches of data security. 293

Artide44 Encryption and secure transfer of data

...

[ ]

Artide45 Member States' cooperation with commercial intermediaries [... ]

Artide46 Compilation of statistics294 [... ]

Artide47 Information to the general public

...

[ ) 290 Visa Code Handbook II, Commission Implementing Decision, C(2020) 1764 final, pan 5.3; see also Sanchez-Barrueco, Business as usual, p. 394-395. On aggressive selling of optional services in relation to UK visas by Visa Facilitation Service (VFS), see The Independent, 'How Home Office makes millions a week from· outsourcing visas to Dubai-based firm accused of exploitation', 19 August 2019, available at: https://www.independent.co.uk/news/uk/home-news/home-office-vfs-visas-profit-subcontncted-contractoutsourcing•premium-services-exploited-a9056446.html [last accessed 14 April 2021 ). 291 Council doc. 13589/20 of 2 December 2020, p. 8. 292 See, for example, Sanchez-Burrueco, Business as usual, p. 396-397, on possible conflict of interests affecting sensitive information and accountability; Moreno-Lax, Accessing Asylum, p. 113. m See, for example, the Guardian, 'Users' data compromised after technical glitch at Home Office contractor'. 17 July 2015, available at: https:/ /www.theguardian.com/technology/2015/jul/ 17/users-datacompromised-after-technical-glitch-at-home-office-contractor [last accessed 11 April 2021 ); Costelloe Baker, 'Report of the Independent Investigation: Breach of data security in VFS online UK visa application facility, operated through VFS website in India, Nigeria and Russia', 16 July 2007, available at: https://www. statewatch.org/media/docurnents/news/2007 /jul/uk-visa-security-report.pdf [last accessed 11 April 202 I I. 294 Article 46 has been deleted by Reg 2021/1134.

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Visa Code Regulation (EC) No 810/2009

TITLE V WCAL SCHENGEN COOPERATION

Article 48 Local Schengen cooperation between Member States• consulates I. Consulates and the Union delegations shall cooperate within each jurisdiction to ensure a harmonised application of the common visa policy taking into account local circumstances. To that end, in accordance with Article 5(3) of Council Decision 20I0/427/El.Jl 10>, the Commission shall issue instructions to Union delegations to carry out the relevant coordination tasks provided for in this Article. Where applications lodged in the jurisdiction concerned are examined and decided on by central authorities as referred to in Article 4(Ia), Member States shall ensure the active involvement of those central authorities in local Schengen cooperation. The staff contributing to local Schengen cooperation shall be adequately trained and involved in the eumination of applications in the jurisdiction concerned. Ia. Member States and the Commission shall, in particular, cooperate in order to: (a) prepare a harmonised list of supporting documents to be submitted by applicants, taking into account Article 14; (b) prepare a local implementation of Article 24(2) regarding the issuing of multiple-entry visas; (c) ensure a common translation of the application form, where relevant; (d) establish the list of travel documents issued by the host country and update it regularly; (e) draw up a common information sheet containing the information referred to in Article 47(1); (0 monitor, where relevant, the implementation of Article 25a(S) and (6). 3. Member States under local Schengen cooperation shall exchange the following information: (a) quarterly statistics on uniform visas, visas with limited territorial validity, and airport transit visas applied for, issued, and refused; (b) information with regard to the assessment of migratory and security risks, in particular on: (i) the socio-economic structure of the host country; (ii) sources of information at local level, including social security, health insurance, fiscal registers and entry-exit registrations; (iii) the use of false, counterfeit or forged documents; (iv) irregular immigration routes; (v) trends in fraudulent behaviour; (vi) trends in refusals; (c) information on cooperation with external service providers and with transport companies; (d) information on insurance companies providing adequate travel medical insurance, including verification of the type of coverage and possible excess amount. oo, Council Decision 2010/427/EU of 26 July 2010 establishing the organisation and functioning of the European External Action Service (OJ L 201. 3.8.2010, p. 30). 172

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4. Local Schengen cooperation meetings to deal specifically with operational issues in relation to the application of the common visa policy shall be organised regularly among Member States and the Commission. These meetings shall be convened within the jurisdiction by the Commission, unless otherwise agreed at the request of the Commission. Single-topic meetings may be organised and sub-groups set up to study specific issues within local Schengen cooperation. 5. Summary reports of local Schengen cooperation meetings shall be drawn up systematically and circulated locally. The Commission may delegate the drawing up of the reports to a Member State. The consulates of each Member State shall forward the reports to their central authorities. 6. Representatives of the consulates of Member States not applying the Community acquls in relation to visas, or of third countries, may on an ad hoc basis be invited to participate in meetings for the exchange of information on issues relating to visas. 7. An annual report shall be drawn up within each jurisdiction by 31 December each year. On the basis of those reports, the Commission shall draw up an annual report on the state of local Schengen cooperation to be submitted to the European Parliament and to the Council.

Local Schengen Cooperation (LSC) developed during the 1990s as a marginal and I voluntary intergovernmental mechanism coordinated by the Presidency of the Council to become, under the Visa Code, increasingly structured under the coordination of the Commission via Union delegations. 295 The objective of LSC is to achieve a harmonised practical application of the provisions in the Visa Code taking into account local circumstances. Thus, Article 48(la) lists the items to be produced by way of cooperation. The list of supporting documents for each jurisdiction (see Article 14 MN 2) and the local adaptation of the rules on the issuing of multiple-entry visas (see Article 24 MN 3), in particular, are to be formally adopted by the Commission through an implementing decision following a positive opinion by the Visa Committee (Article 52(2)). LSC further envisages exchange of information in relation to the matters listed in Article 48(3). 296 While the Visa Handbook provides that 'as a part of local Schengen cooperation, consulates should define "profiles" of applicants presenting a specific risk, according to local conditions and circumstances which also takes account of the general situation in the country of residence',297 the Visa Handbook II advises against the establishment of arbitrary 'alert or warning' lists, following exchange of information, which could be problematic from the point of view of non-discrimination and data protection requirements, recommending consultation of the national data protection authority. The Visa Handbook II also instructs consulates to refrain from introducing local visa bans, recomm~nding the use of the SIS instead. 298

295 Fernandez, 'Towards a EU Consular Policy', in: Batora/Spence (eds), The European External Action Service - European Diplomacy Post Westphalia (Palgrave, 2015), p. 356. 2"" lnfonnation is also to be exchanged under Article 22(3) on prior consultation and Article 31(2) on ex-post notification. 297 Commission Implementing Decision, C(2010) 1620 final, as amended, C(2014) 2727 final Part II, para 6.13. 298 See Commission Implementing Decision, C(2020) 1764 final, Part II, para 1.2.

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Visa Code Regulation (EC) No 810/2009

Art. 49

TIIlE VI FINAL PROVISIONS Article 49 Arrangements in relation to the Olympic Games and Paralympic Games [... )

Article 51 Instructions on the practical application of this Regulation The Commission shall by means of implementing acts adopt the opentional instructions on the practical application of the provisions of this Regulation. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 52(2). l

Under this provision, the Commission has adopted the Handbook for the processing of visa applications and the modification of issued visas (Visa Code Handbook I) and the Handbook for the administrative management of visa processing and local Schengen cooperation (Visa Code Handbook II) which are non-legally binding. 299

Article Sia Exercise of the delegation [ ... )

Article 52 Committee procedure I. The Commission shall be assisted by a committee (the 'Visa Committee'). That committee shall be a committee within the meaning of Regulation (EU) No 182/ 2011 of the European Parliament and of the Counci10 2 >. 2. Where reference is made to this paragraph, Article S of Regulation (EU) No 182/2011 shall apply. Where the Committee delivers no opinion, the Commission shall not adopt the draft implementing act and the third subparagraph of Article 5(4) of Regulation (EU) No 182/2011 shall apply. Article 52 has been amended by Regulation (EU) 2019/1155 to take into account the adoption of Regulation (EU) No 182/20ll on mechanisms for control by Member m Respectively, Commission Implementing Decision, C(2010) 1620 final, as amended, and Commission Implementing Decision, C(2020) I 764 final. 11 21 Regulation (EU) No 182/2011 of the European Parliament and of the Council of 16 l'ebruary 2011 laying down the rules and general principles concerning mechanisms for control by the Member States of the Commission's exercise of implementing powers (OJ L 55, 28.2.2011, p. 13).

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ANNEX II

Chp. 3

States of the Commission's exercise of implementing powers (committee procedure), following the introduction of Article 291 TFEU. It provides for the application of the 'examination procedure' for the adoption of Commission implementing acts envisaged by the Visa Code to establish the list of supporting documents for each jurisdiction (Article 14(5a)), the local adaptation of the rules on issuing multiple-entry visas (Article 24(2d)), the rules on filling in the visa sticker (Article 27(1)), the rules on affixing a visa sticker (Article 29(la)), the operational instructions for issuing visas at the border to seafarers (Article 35(2a)) and the operational instruction under Article 51.

Article 53 Notification [

... ] Article 54 Amendments to Regulation (EC) No 767/2008

[

... ) Article 56 Repeals

[... )

Article 57 Monitoring and evaluation

...

[ )

Article 58 Entry into force [

... ) ANNEX I Harmonised application form

[

... ) ANNEX II Non-exhaustive list of supporting documents

...

[ ] Meloni

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This decision is based on the following reason(s): I.

0

2.

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3.

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4.

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5.

C

6.

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7.

cl

8.

cl

9.

D

10.

C

11.

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12.

cl

13.

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14.

D

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c

16.

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17.

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a false/counterfeit/forged travel document was presented justification for the purpose and conditions of the intended stay was not provided you have not provided proof of sufficient means of subsistence, for the duration of the intended stay or for the return to the country of origin or residence, or for the transit to a third country into which you are certain to be admitted you have not provided proof that you are in a position to lawfully acquire sufficient means of subsistence, for the duration of the intended stay or for the return to the country of origin or residence, or for the transit to a third country into which you are certain to be admitted you have already stayed for 90 days during the current 180-day period on the territory of the Member States on the basis of a uniform visa or a visa with limited territorial validity an alert has been issued in the Schengen Information System (SIS) for the purpose of refusing entry by ... (indication of Member State) one or more Member States consider you to be a threat to public policy or internal security one or more Member States consider you to be a threat to public health as defined in point (21) of Article 2 of Regulation (EU) No 2016/399 (Schengen Borders Code) one or more Member States consider you to be a threat to their international relations the information submitted regarding the justification for the purpose and conditions of the intended stay was not reliable there are reasonable doubts as to the reliability of the statements made as regards ... (please specify) there are reasonable doubts as to the reliability, as lo the authenticity of the supporting documents submitted or as to the veracity of their contents there are reasonable doubts as to your intention to leave the territory of the Member States before the expiry of the visa sufficient proof that you have not been in a position to apply for a visa in advance, justifying application for a visa at the border, was not provided justification for the purpose and conditions of the intended airport transit was not provided you have not provided proof of possession of adequate and valid travel medical insurance revocation of the visa was requested by the visa holder; (ac) provide the necessary assistance for the development of a common informationsharing environment, including interoperability of systems, as appropriate; (ad) follow high standards for border management allowing for transparency and public scrutiny in full respect of the applicable law and ensuring respect for, and protection and promotion of, fundamental rights; (ae) manage and operate the False and Authentic Documents Online system referred to in Article 79 and support the Member States by facilitating the detection of document fraud; (at) fulfil the tasks and obligations entrusted to the Agency under Regulation (EU) 2018/1240 of the European Parliament and of the Coundl137 > and ensure the setting up and operation of the ETIAS Central Unit in accordance with Article 7 of that Regulation; (ag) assist Member States in facilitating persons to cross the external borders. 2. The Agency shall communicate on matters falling within its mandate. It shall provide the public with accurate, detailed, timely and comprehensive information about its activities. Such communication shall not be detrimental to the tasks referred to in paragraph I of this Article, and in particular shall not reveal operational information which, if made public. would jeopardise attainment of the objective of operations. The Agency shall communicate without prejudice to Article 92 and in accordance with relevant communication and dissemination plans adopted by the management board and in close cooperation, where appropriate, with other bodies, offices and agencies.

I. Commentary The progressive acquisition by Frontex oi an enhanced mandate (see above, Article I MN 4-8), is reflected in the list of its tasks set out in legislation. The length of this has grown.steadily, from six in the 2004 Regulation, to eleven in 2011, 21 in 2016 and now 33 in 2019. The current list of tasks in Article 10(1) may be grouped as follows: - Monitoring and assessment in relation to the external borders (points (a) to (0); - Assistance to Member States at the external borders, including processing 'hotspots' (points (g) to (m)); (Jol Council Decision 2008/381/EC of 14 May 2008 establishing a European Migration Network (OJ L 131, 21.5.2008, p. 7). '"' Regulation (EU) 2018/1240 of the European Parliament and of the Council of 12 September 2018 establishing a European Travel Information and Authorisation System (ETIAS) and amending Regulations (EU) :--Jo 1077/2011, (EU) :-.lo 515/2014, (EU) 2016/399, (EL') 2016/1624 and (EU) 2017/2226 (OJ L 236, 19.9.2018, p. 1).

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11

- Assistance to Member States in respect of returns (points (n) to (p)); - Co-operation with other EU agencies (points (q) to (t)); - Co-operation with third countries, including in support of Member States (points (u) and (v)); - Training, research, innovation and development of technical standards (points (w) to (z)); - Communication and information among Member States (points (aa) to (ac)); - Border and immigration management (points (ad) to (ag)). 2 Two important developments as regards border and immigration management were made by the 2019 Regulation. Firstly, Frontex acquired responsibility for the False and Authentic Documents Online system (FADO), which involves exchanges of information between Member State authorities, and was initially administered· under the Council of Ministers. 63 Secondly, it acquired responsibility for the central parts of the European Travel Information and Authorisation System, for visa-free nationals who are travdling to the Schengen wne.64

SECTION 2 Information exchange and cooperation

Article 11

Duty to cooperate in good faith The Agency, the national authorities responsible for border management, including coast guards to the extent that they carry out border control tasks, and the national authorities responsible for return shall be subject to a duty to cooperate in good faith and an obligation to exchange information.

I. Commentary l

The duty to co-operate in good faith, and the related obligation to exchange information, were introduced into Frontex legislation by the 2016 Regulation. These cover Frontex and the authorities of each Member State in relation to one another. It is noteworthy that Article 11 refers to national authorities responsible for border management and return, as distinct from the Member State as such. That might become relevant were a Member State's Government to seek to restrict co-operation by individual authorities. Article 11 may also be relevant in limiting attempts by a Member State Government, or a relevant national authority, to limit the extent of its cooperation with Frontex by reliance upon legalistic arguments, based in the text of the Regulation or otherwise.

63 Joint Action 98/700/JHA adopted by the Council concerning the setting up of a European Image Archiving System (FADO) (OJ 1998 L 333/4). Provision for Frontcx to take over the FADO system is in Article 79 of Frontex Regulation (EU) 2019/1896 (not discussed in this chapter). 64 See Regulation (EU) 2018/1240 establishing a European Travel Information and Authorisation System (ETIAS) (OJ 2018 L 236/1). Provision for Frontex to establish the Central Unit of ETIAS is in Article 67 of Frontex Regulation (EU) 2019/1896 (not discussed in this chapter).

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Article 12 Obligation to exchange information (

... ] Article 13 National contact points

...

[ ]

Article 14 Communication network [... )

Article 15 Information exchange systems and applications managed by the Agency [

... ) Article 16 Technical standards for information exchange

[

... ] Article 17 Information assurance

...

[ ]

SECTION 3 EUROSUR Article 18 EUROSUR This Regulation establishes EUROSUR as an integrated framework for the exchange of information and for operational cooperation within the European Border and Coast Guard in order to improve situational awareness and to increase reaction capability for the purposes of border management, including the detection,

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Art. 19

Frontex: Regulation (EU) 2019/1896

prevention and combating of illegal immigration and cross-border crime and contributing to ensuring the protection and saving the lives of migrants.

I. Commentary Eurosur is a system for the sharing of border surveillance information and the coordination of border surveillance between the Member States, and between them and Frontex. It was established by Regulation 1052/2013/EU, and became operational on 2 December 2013. 65 From the outset, Frontex was responsible for establishing and maintaining the Eurosur communication network, and for developing what are termed 'situational pictures' within it. The 2019 Regulation has now incorporated th~ provisions relating to Eurosur, primarily in Articles 18-28 of the Regulation.

Article 19 Scope of EUROSUR I. EUROSUR shall be used for border checks at authorised border crossing points and for external land, sea and air border surveillance, including the monitoring, detection, identification, tracking, prevention and interception of unauthorised border crossings for the purpose of detecting, preventing and combating illegal immigration and cross-border crime and contributing to ensuring the protection and saving the lives of migrants. 2. EUROSUR shall not be used for any legal or administrative measure taken once

the competent authorities of a Member State have intercepted cross-border criminal activities or unauthorised crossings by persons of the external borders.

I. Commentary Under its founding Regulation, the mandatory scope of Eurosur was limited to surveillance of external land and sea borders. 66 It was optional for Member States to provide information to Eurosur concerning surveillance of air borders and checks at border crossing points. 67 In that regard, a key change made by the 2019 Regulation has been to expand the mandatory content, to include information from air border surveillance and from border checks at authorised border crossing points. 2 The legitimate purposes of Eurosur, as defined in Article 19(1) are the detection, prevention and combating of illegal immigration and cross-border crime, and the protection of migrants and saving their lives. That statement is linked to Article 19(2), according to which Eurosur may not be used to support legal or administrative measures - presumably in respect of individuals - taken by Member State authorities once they have intercepted cross-border criminal activities or unauthorised crossing of the external borders. Versions of these statements previously appeared in the Eurosur Regulation. 68

65 Regulation (EU) 1052/2013 (OJ 2013 L 295/11) establishing the European Border Surveillance System (Eurosur). 66 Regulation (EU) 1052/2013, Article 2(1). 67 Regulation (EU) 1052/2013, Article 2(2) . .. Regulation (EU) 1052/2013, Article 2(1) and 2(3).

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Art. 26

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Article 20 EUROSUR components [

... ] Article 21

National coordination centres [

... ) Article 22

EUROSUR Handbook [ ... ]

Article 23

Monitoring of EUROSUR [... )

SECTION 4 Situational awareness Article 24

Situational pictures [

... ] Article 25

National situational pictures [

... ). Article 26

European situational picture [ ... )

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Art. 27

Frontex Regullltion (EU) 2019/1896

Article 27 Specific situational pictures [ ... )

Article 28 EUROSUR fusion services

...

[ )

SECTION 5 Risk analysis Article 29 Risk analysis I. The Agency shall monitor migratory flows towards the Union, and within the Union in terms of migratory trends, volume and routes, and other trends or possible challenges at the external borden and with regard to return. For that purpose, the Agency shall, by a decision of the management board based on a proposal from the executive director, establish a common integrated risk analysis model, which shall be applied by the Agency and the Member States. The common integrated risk analysis model shall be established and updated, where needed, on the basis of the outcome of the evaluation of the implementation of the multiannual strategic policy cycle for European integrated border management referred to in Article 8(7). 2. The Agency shall prepare general annual risk analyses, which shall be submitted to the European Parliament, to the Council and to the Commission applying the security rules adopted in accordance with Article 92, and tailored risk analyses for operational activities. Every two years, the Agency, in dose consultation with the Member States, shall prepare and submit to the European Parliament, to the Council and to the Commission a strategic risk analysis for European integrated border management Such strategic risk analyses shall be taken into account for the preparation of the multiannual strategic policy cycle for European integrated border management. The Agency shall prepare such general annual risk analyses and strategic risk analyses on the basis of information received, including from the Member States. Penonal data shall be anonymised in the results of such risk analyses. 3. The risk analyses referred to in paragraph 2 shall cover all aspects relevant to European integrated border management with a view to developing a pre-warning mechanism. 4. The Agency shall publish comprehensive information on the common integnted risk analysis model 5. Member States shall provide the Agency with all necessary information regarding the situation, trends and possible threats at the external borden and

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Art. 31

Chp. 6

in the field of return. Member States shall regularly, or upon the request of the Agency, provide it with all relevant information such as statistical and operational data collected in relation to European integrated bonier management that is included in the list of mandatory information and data to be exchanged with the Agency as referred to in point (e) of Article 100(2), as well as information from the analysis layen of the national situational pictures as provided for in Article 25. 6. The results of the risk analysis shall be submitted to the management board and shared with the competent authorities of the Member States in a timely and accunte manner. 7. Member States shall take results of the risk analysis into account when planning their operations and activities at the extemal burden and their activities with reganl to return. 8. The Agency shall incorporate the results of a common integrated risk analysis model in its development of common core curricula for training as referred to in Article 62.

I. Commentary Risk analysis has been a central feature of Frontex tasks and activities ever since the 2004 Regulation. 69 In the current Regulation, the risks to be assessed are listed as (i) 'migratory flows" both towards and within the Union, (ii) 'other trends or possible challenges at the external borders' and (iii) 'other trends or possible challenges ... with regard to return'. Since 20 l l, risk analysis has been linked to assessments of the capacity of Member States, which are now termed 'vulnerability assessments' (see below, Article 32). Under Article 29(4), Frontex is obliged to publish 'comprehensive information' on its overall risk model. 70

SECTION 6 Prevention and responsiveness Article 30 Determination of external border sections [

... ) Article 31 Agency liaison officers in Member States

I. The Agency shall ensure the regular monitoring of all Member States' management of the external borders and return through liaison officers of the Agency. The Agency may decide that a liaison officer coven up to four Member States which are geographically dose to each other. Former Frontex Regulation (EC) 2007/2004, Article 4. publishes an annual risk analysis, the most recent of which at the lime of writing was for 2020, available al: https://frontex.europa.eu/publicalions/frontex-releases-risk-analysis-for-2020-vpOTZ7 [last accessed 12 May 2021J. 0

'

'° Fronlex

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Art. 31

Frontex Regulation (EU) 2019/1896

2. The executive director shall appoint experts from the statutory staff to be deployed as liaison officen. The executive director shall, on the basis of risk analysis and in consultation with the Member States concerned, make a proposal on the nature and terms of the deployment, the Member State or region to which a liaison officer may be deployed and possible tasks not covered by paragraph 3. The proposal from the executive director shall be subject to approval by the management board. The executive director shall notify the Member State concerned of the appointment and shall determine, together with that Member State, the location of deployment. 3. The liaison officen shall act on behalf of lhe Agency, and their role shall be to foster coopention and dialogue between the Agency and the national authorities responsible for border management, including coast guards lo the extent that they carry out border control tasks, as well as the national authorities responsible for return. The liaison officen shall, in particular: (a) act as an interface between the Agency and the national authorities responsible for border management, including coast guards to the extent that they carry out border control tasks, as well as the national authorities responsible for return; (b) support the collection of information required by the Agency for the monitoring of illegal immigration and risk analyses referred to in Article 29; (c) support the collection of information referred to in Article 32 and required by the Agency to carry out vulnerability assessments and prepare a report for that purpose; (d) monitor the measures taken by the Member State at external border sections to which a high or critical impact level has been attributed in accordance with Article 34; (e) contribute to promoting the application of the Union acquis relating to the management of the external borders and return, including with regard to respect for fundamental rights; (0 cooperate with the fundamental rights officer, where necessary, with a view to promoting respect for fundamental rights in the work of the Agency in line with point (e); (g) where possible, assist the Member States in preparing their contingency plans concerning border management; (h) facilitate the communication between the Member State concerned and the Agency, share relevant information from the Agency with the Member State concerned, including information about ongoing operations; (i) report regularly and directly to the executive director on the situation al the external borden and the capacity of the Member State concerned to deal effectively with the situation at the external borden; report al.so on the execution of return operations towards relevant third countries; 0) monitor the measures taken by the Member State with regard to a situation requiring urgent action at the external borders as referred to in Article 42; (k) monitor the measures taken by the Member State with regard to return and support the collection of information required by the Agency to carry out the activities referred to in Article 48. 4. If the reporting by the liaison officer referred to in point (i) of paragraph 3 raises concerns about one or more aspects relevant for the Member State concerned, the executive director shall inform that Member State without delay.

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Chp. 6

5. For the purposes of paragraph 3, the liaison officer shall, in compliance with the national and Union security and data protection rules: (a) receive information from the national coordination centre concerned and the relevant national situational picture established in accordance with Article 25; (b) keep regular contacts with national authorities which are responsible for border management, including coast guards to the extent that they carry out border control tasks, as well as the national authorities responsible for return, whilst informing the national contact point concerned. 6. The report of the liaison officer referred to in point (c) of paragraph 3 of this Article shall form part of the vulnenbility assessment referred to in Article 32. The report shall be tnnsmitted to the Member State concerned. 7. In carrying out their duties, the liaifiOn officen shall take instructions only from the Agency.

I. Commentary The greater role conferred upon Frontex by the 2016 Regulation (above, Article l I MN 7) included provision for it to appoint liaison officen for the Member States. Initially, the core role of these liaison officers was stated to be 'regular monitoring of ... Member States' management of the external borders'. 71 Article 31 retains that provision, while extending their remit to return. A liaison officer may cover up to four Member States, provided they are 'geographically close'. The Frontex executive director designates liaison officen from among the 2 statutory staff (see above, Article 2 MN 4). The nature and terms of the deployment, including the Member State or region to which they will be deployed, are subject to the approval of the management board. The precise location of deployment is determined jointly by the executive director and the Member State concerned. It is expressly stated in Article 31(7) that liaison officers 'shall take instructions only from the Agency'. It is evident from the list of their tasks in Article 31(3) that the role of liaison officer 3 is potentially a sensitive one. They assist in collecting information for risk analyses and vulnerability assessments (points (b) and (c)). They monitor Member State measures at the external border (points (d) and (j)) and in respect of return (point (k)). They promote compliance with EU law, including respect for fundamental rights (point (e)), and cooperate with the Frontex fundamental rights officer (point (f)). They also report 'regularly and directly' to the Frontex executive director concerning the situation at the external borders, Member State capacity, and return operations (point (i)). If the reports of the liaison officer raise 'concerns', the executive director is to inform the Member State qmcerned (Article 31(4)).

Article 32 Vulnerability assessment 1. The Agency shall establish a common vulnerability assessment methodology by decision of the management board, on the basis of a proposal from the executive director .prepared in dose cooperation with the Member States and the Commission. ;i

See Regulation (EU) 2016/1624, Article 12(1).

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Art. 32

That methodology shall include objective criteria against which the Agency shall carry out the vulnerability assessment, the frequency of such assessments, how consecutive vulnerability assessments are to be carried out, and arrangements for an effective system for monitoring the implementation of recommendations of the executive director as referred to in paragraph 7. 2. The Agency shall monitor and assess the availability of the technical equipment, systems, capabilities, resources, infnstructure and adequately skilled and trained staff of Member States neceuary for border control as referred to in point (a) of Article 3(1). In that context, the Agency shall assess the national capability development plans referred to in Article 9(4) as regards the capacity to perform border control taking into account the fact that some national capabilities may be partially used for purposes other than border control. For future planning, the Agency shall carry out such monitoring and assessment as a preventive measure on the basis of the risk analyses prepared in accordance with Article 29(2). The Agency shall carry out such monitoring and assessment at least once a year, unless the executive director, on the basis of risk analysis or a previous vulnerability assessment, decides otherwise. In any event, each Member State shall be subject to monitoring and assessment at least once every three years. 3. Without prejudice to Article 9, Member States shall, at the request of the Agency, provide information as regards technical equipment, staff and, to the extent possible, the financial resources available at national level to carry out border control. Member States shall also provide information on their contingency plans on border management at the Agency's request. 4. The aim of the vulnerability assessment is for the Agency: to assess the capacity and readiness of Member States to face present and upcoming challenges at the external borders; to identify, especially for those Member States facing specific and disproportionate challenges, possible immediate consequences at the external borders and subsequent consequences on the functioning of the Schengen area; to assess their capacity to contribute to the standing corps and to the technical equipment pool, including the rapid reaction equipment pool; and to assess the hosting capacity of Member States with regard to support from the European Border and Coast Guard in line with Article 9(3). That assessment shall be without prejudice lo the Schengen evaluation mechanism. 5. In the vulnerability assessment, the Agency shall assess, in qualitative and quantitative terms, the Member States' capacity to carry out all border management tasks, including their capacity to deal with the potential arrival of large numbers of persons on their territory. 6. The preliminary results of the vulnerability assessment shall be submitted to the Member States concerned. The Member States concerned may comment on that assessment. 7. Where necessary, the executive director, in consultation with the Member State concerned, shall make a recommendation setting out the necessary measures to be taken by the Member Slate concerned and the time limit within which such measures are to be implemented. The executive director shall invite the Member States concerned lo take the necessary measures on the basis of an action plan developed by the Member State in consultation with the executive director. 8. The executive director shall base the measures to be recommended to the Member States concerned on the results of the vulnerability assessment, taking into account the Agency's risk analysis, the comments of the Member State concerned and the results of the Schengen evaluation mechanism.

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Art. 32 Chp. 6 The recommended measures shall be aimed at eliminating the vulnerabilities identified in the assessment in order for Member States to increase their readiness to face present and upcoming challenges at the external borders by enhancing or improving their capabilities, technical equipment, systems, resources and contingency plans. The executive director may offer the technical expertise of the Agency to the Member States to support the implementation of the recommended measures. 9. The executive director shall monitor the implementation of the recommended measures by means of regular reports to be submitted by the Member States on the basis of the action plans referred to in paragraph 7. Where there is a risk that a Member State will not implement a recommended measure within the time limit set in accordance with paragraph 7, the executive director shall immediately inform the member of the management board from the Member State concerned and the Commission. In consultation with the member of the management board from the Member State concerned, the executive director shall enquire of the relevant authorities of that Member State about the reasons for the delay and offer support by the Agency to facilitate the implementation of the measure recommended. 10. Where a Member State does not implement the necessary measures of the recommendation within the time limit set in accordance with paragraph 7 of this Article, the executive director shall refer the matter to the management board and notify the Commission. The management board shall adopt a decision on the basis of a proposal from the executive director, setting out the necessary measures to be taken by the Member State concerned and the time limit within which such measures are to be implemented. The decision of the management board shall be binding on the Member State. If the Member State does not implement the measures within the time limit provided for in that decision, the management board shall notify the Council and the Commission and further action may be taken in accordance with Article 42. 11. The vulnerability as5es5ment, including a detailed description of the outcome of the vulnerability assessment, the measures taken by the Member States in response to the vulnerability assessment and the status of the implementation of any measures previously recommended, shall be transmitted, in accordance with Article 92, on a regular basis and at least once a year to the European Parliament, to the Council and to the Commission.

I. Commentary Vulnerability assessments were introduced by the 2016 Regulation, and are central to Frontex's supervision of Member States. 72 The purposes of these assessments are (i) to assess the 'capacity and readiness' of a Member State to face challenges at the external borders; (ii) to identify challenges at the external borders, and possible consequences for the Schengen area; (iii) to assess the Member State's capacity to contribute personnel to the standing corps and technical equipment; and, (iv) to assess the Member State's 'hosting capacity' for support from Frontex (Article 32(4)). Vulnerability assessments normally take place annually, but the executive director 2 may defer the assessment of a given Member State for no more than an additional two years (Article 32(2). Preliminary vulnerability assessments are shared with the Member State concerned, which may respond to them (Article 32(6)). Vulnerability assessments ,: Fonner Frontex Regulation (EU) 2016/1624, Article IJ.

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Art. 33

Frontex Regulation (EU) 2019/1896

may lead to recommendations by the Frontex executive director to the Member State concerned, which the Member State is to implement based on an action plan on which the executive director is consulted (Article 32(7)). If the Member State does not implement the necessary measures within a specified time limit, the matter is referred to the Frontex management board, which may make the measures binding upon the Member State (Article 32(10)). Further non-compliance by the Member State may lead to the management board's notifying the Council and the Commission, which may use their powers in cases requiring urgent action to authorise intervention by Frontex (see Article 32(10) and below, Article 42). 3 The system of vulnerability assessments overlaps in part with evaluations of compliance with Schengen acquis. 73 Schengen evaluations are led by the Commission, with Frontex having observer status within them, and may lead to remedial action being recommended to a Member State by the Council of Ministers, on a proposal from the Commission. 7◄ Of particular relevance here is the provision in the Schengen Borders Code for cases where a Schengen evaluation finds that a Member State is 'seriously neglecting its obligations' in respect of external border control. In that case, the Commission may recommend, by means of an implementing act, that the Member State take specific measures, including initiating the deployment of Frontex teams. 75 Article 33 of the Frontex Regulation (not discussed here) provides for the Commission and Frontex to maximise the 'synergies' between these two processes, and to avoid duplication of efforts by Member States. 4 The far-reaching consequences which may flow from vulnerability assessments and from Schengen evaluations in respect of the external border mean that these mechanisms are politically significant for Member States.76 They each show the limitations of the notion of shared responsibility (see above, Article 7), in that Member States retain legal and factual responsibility for external border control, while potentially being the subject of negative assessments for it. A sign of the sensitivity of these questions can be seen in the negotiations which led to the former Frontex Regulation (EU) 2016/ 1624 on the predecessor provision to the current Article 32. The Commission's proposal that the Frontex executive director's recommendations after a vulnerability assessment would have been binding in themselves was rejected by the Council of Ministers, which inserted the current provision whereby binding effect is contingent upon a decision of the management board. 77

Article 33 Synergies between the vulnerability assessment and the Schengen evaluation mechanism [

... )

73 Regulation (EU) 1053/2013 (OJ 2013 L 295/27) establishing an evaluation and monitoring mechanism to verify the application of the Schengen acquis. " Regulation (EU) 1053/2013, Article 15. ,s Schengen Borders Code Regulation (EU) 2016/399, Article 21(1). In serious cases, the Council of Ministers may recommend, on a Commission proposal, the temporary re-introduction of internal border controls by certain Member States: see Regulation (EU) 2016/399, Article 21(3), 29 and 30, discussed by Ryan, in Cremona/Scott, EU Llw Beyond EU Borders, p. 215. '" See Dubout, Les enjew: constitutionnels, p. 458. 77 See Council doc. 7649/16 of 8 April 2016, Article 12, and discussion in Rijpma, The Proposal for a European Border and Coast Guard, p. 14-15.

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Chp. 6

Article 34 Attribution of impact levels to external border sections l. On the basis of the Agency's risk analysis and vulnenbility assessment and in agreement with the Member State concerned, the Agency shall attribute the following impact levels to each external border section or change such levels: (a) low impact level where the incidents related to illegal immigration or crossborder crime occurring at the relevant border section have an insignificant impact on border security; (b) medium impact level where the incidents related to illegal immigration or crossborder crime occurring at the relevant border section have a modente impact on border security; (c) high impact level where the incidents related to illegal immigration or crossborder crime occurring at the relevant border section have a significant impact on border security. 2. In order to swiftly address a crisis situation at a particular external border section, where the Agency's risk analysis shows that incidents related to illegal immigration or cross-border crime occurring at the relevant external border section have a decisive impact on border security to such an extent that they risk jeopardising the functioning of the Schengen area, the Agency shall, in agreement with the Member State concerned, temporarily attribute a 'critical' impact level to that external border section. 3. Where there is no agreement between the Member State concerned and the Agency on the attribution of an impact level to an external border section, the impact level that was previously attributed to that border section shall remain unchanged. 4. The national coordination centre shall constantly assess in dose coopention with other competent national authorities whether there is a need to change the impact level of any of the external border sections by taking into account the information contained in the national situational picture and inform the Agency accordingly. 5. The Agency shall indicate the impact levels attributed to the external border sections in the European situational picture.

I. Commentary The purpose of Article 34 is to set out four impact levels which are attributed to l sections of the external border. These are defined by reference to the extent of the impact _that 'incidents' related to illegal immigration or cross-border crime have upon what is termed 'border security'. The four levels are described as 'low', 'medium', 'high' and 'critical'. In particular, a 'high' level corresponds to incidents having 'a significant impact on border security', and a 'critical' level to incidents having 'a decisive impact on border security to such an extent that they risk jeopardising the functioning of the Schengen area'. The impact levels are in principle determined by Frontex, on the basis of its risk 2 analysis and vulnerability assessments. The agreement of the Member State concerned is required both for an initial assessment in respect of a given border section, and for any changes to it. The consequences of attribution of a given level to a section of the external border are addressed in Article 35, discussed below. Ryan

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Frontex Regulation (EU) 2019/1896

Art. 35

Article 35 Reaction corresponding to impact levels 1. The Member States shall ensure that border control at the external border sections corresponds to the attributed impact levels in the following manner: (a) where a low impact level is attributed to an external border section, the national authorities responsible for external border control shall organise regular border control on the basis of risk analysis and ensure that sufficient personnel and resources are being kept available for that border section; (b) where a medium impact level is attributed to an external border section, the national authorities responsible for external border control shall, in addition to the measures taken under point (a) of this paragraph, ensure that appropriate border control measures are being taken at that border section; where such border control measures are taken, the national coordination centre shall be notified accordingly; the national coordination centre shall coordinate any support given in accordance with Article 21(3); (c) where a high impact level is attributed to an external border section, the Member State concerned, in addition to the measures taken under point (b) of this paragraph, shall ensure, through the national coordination centre. that the national authorities operating at that border section are given the necessary support and that reinforced border control measures are taken; that Member State may request support from the Agency subject to the conditions for initiating joint operations or rapid border interventions as laid down in Article 36; (d) where a critical impact level is attributed to an external border section, the Agency shall notify the Commission thereof; the executive director, in addition to the measures taken under point (c) of this paragraph, shall issue a recommendation in accordance with Article 41(1), taking into account the ongoing support by the Agency; the Member State concerned shall respond to the recommendation in accordance with Article 41(2). 2. The national coordination centres shall regularly inform the Agency of the measures taken at national level pursuant to points (c) and (d) of paragraph 1. 3. Where a medium, high or critical impact level is attributed to an external border section which is adjacent to the border section of another Member State or of a third country with which agreements, arrangements or regional networks, as referred to in Articles 72 and 73, are in place, the national coordination centre shall contact the national coordination centre of the neighbouring Member State or the competent authority of the neighbouring third country and shall endeavour to coordinate together with the Agency the necessary cross-border measures. 4. The Agency shall, together with the Member State concerned, evaluate the attribution of impact levels and the corresponding measures taken at national and Union level. That evaluation shall contribute to the vulnerability assessment to be carried out by the Agency in accordance with Article 32.

I. Commentary The purpose of Article 35 is to indicate the consequences of the impact level determinations in Article 34 for Member State authorities and for Frontex. These may be summarised as follows:

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- 'Low' impact level: the Member State authorities organise 'regular' border control. - 'Medium' impact level: the Member State authorities ensure 'appropriate' border control measures, and notify their national coordination centre of such measures. - 'High' impact level: in addition to maintaining border control measures, the Member State may request support from Frontex through a joint operation or rapid border intervention, in accordance with Article 36 (below). - 'Critical' impact level: the executive director issues a recommendation to the Member State to request Frontex support, under Article 41 (below), and Frontex notifies the Commission. It follows from this structure that a 'high' impact level is in effect the threshold for a Member State to request Frontex support, and that a 'critical' impact level leads to an expectation that it will do so. Article 35(3) makes provision for communication with neighbouring Member 2 States or relevant third countries. No communication is required if a 'low' impact level has been attributed to that section of the external border. For 'medium', 'high' and 'critical' impact levels, the national coordination centre is to contact those other states, and both it and the Agency coordinate any cross-border measures.

SECTION 7 Action by the Agency at the external borders Article 36 Actions by the Agency at the external borders 1. A Member State may request the Agency's assistance in implementing its obligations with regard to external border control The Agency shall also carry out measures in accordance with Articles 41 and 42. 2. The Agency shall organise the appropriate technical and operational assistance for the host Member State and it may, acting in accordance with the relevant Union and international law, including the principle of non-refoulement, take one or more of the following measures: (a) coordinate joint operations for one or more Member States and deploy the standing corps and technical equipment; (b) organise rapid border interventions and deploy the standing corps and technical equipment; (c) coordinate activities for one or more Member States and third countries at the external borders, including joint operations with third countries; (d) deploy the standing corps in the framework of the migration management support teams to, inter alia, hotspot areas in order to provide technical and operational assistance, including, where necessary, in return activities; (e) within the framework of operations referred to in points (a), (b) and (c) of this paragraph and in accordance with Regulation (EU) No 656/2014 and international law, provide technical and operational assistance to Member States and third countries in support of search and rescue operations for persons in distress at sea which may arise during border surveillance operations at sea; (f) give priority treatment to the EUROSUR fusion services. 3. The Agency shall finance or co-finance the activities referred to in paragraph 2 from its budget in accordance with the financial rules applicable to the Agency.

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4. If the Agency has substantial additional financial needs due to a situation at the external borders, it shall inform the European Parliament, the Council and the Commission thereof without delay.

I. Commentary Article 36 is a broad enabling provision, which permits Member States to request assistance in relation to external border control, and permits Frontex to provide such assistance. While there is no apparent threshold lo such a request, when read together with Article 35 (above), it appears that only if a 'high' or 'critical' impact level is attributed to the external border section will Frontex support normally be available. 2 It is stated in Article 36(1) that a Member State's request should be for ass.istance in 'implementing its obligations with regard to external border control'. While the precise nature of the 'obligations' referred to in Article 36( I) is not defined, they preswnably refer to border checks and surveillance in respect of the Schengen external border under the Schengen Borders Code Regulation (EU) 2016/399 (see above, Article 2 MN 2). The use of the word 'obligations' may be traced back to the 2004 Regulation, when they referred to 'control and surveillance of external borders•.;s 3 Article 36(2) is open-ended as to the form of Frontex intervention through which support may be provided, including (a) a joint operation, (b) a rapid intervention, (c) coordination of activities involving third countries, and (d) the deployment of migrant management support teams. The reference in (e) to assistance for search and rescue is not free-standing, however, but rather depends on one of the first three forms of assistance being provided. Under Article 36(3), the Agency also has flexibility as regards financing or co-financing of the activities concerned. 1

Article 37 Initiating joint operations and rapid border interventions at the external borders 1. A Member State may request that the Agency launch joint operations to face upcoming challenges, including illegal immigration, present or future threats at its external borden or cross-border crime, or provide increased technical and operational assistance when implementing its obligations with regard to external border control. As part of such a request, a Member State may also indicate the profiles of operational staff needed for the joint operation in question, including those staff having executive powers, as applicable. 2. At the request of a Member State faced with a situation of specific and disproportionate challenges, especially the arrival at points of the external borders of large numbers of third-country nationals trying to enter the territory of that Member State without authorisation, the Agency may deploy a rapid border intervention for a limited period of time on the territory of that host Member State. 3. The executive director shall evaluate, approve and coordinate proposals made by Member States for joint operations or rapid border interventions. Joint operations and rapid border interventions shall be preceded by a thorough reliable and up-to-date risk analysis, thereby enabling the Agency to set an order of priority for the proposed joint operations and rapid border interventions, taking into account "Former Frontex Regulation (EC) 2004/2007, Article 8(1).

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the impact levels attributed to external border sections in accordance with Article 34 and the availability of resources. 4. The objectives of a joint operation or rapid border intervention may be achieved as part of a multipurpose operation. Such operations may involve coast guard functions and the prevention of cross-border crime, focusing on the fight against migrant smuggling or trafficking in human beings, and migration management, focusing on identification, registration, debriefing and return.

I. Commentary Article 37(1) contains the legal basis for Frontex interventions known as joint operations, which have been provided for in Frontex legislation since 2004. 79 As the term is not defined in the Regulation, and was not defined in earlier legislation, the essence of a joint operation is to be discerned from the provision for operational plans in such cases (see below, Article 38). One question which neither Article 37 nor 38 resolves is what makes an operation a 'joint' one. Under the 2004 Regulation, when Frontex was tasked solely with coordination, that would necessarily have arisen from the participation of more than one Member State. Now that Frontex has its own standing corps, however, it is conceivable that a 'joint' operation could be solely between it and a host Member State. Article 37(2) provides the legal basis for Frontex interventions known as rapid 2 interventions. These were first provided for in Regulation (EC) 863/2007 concerning rapid border intervention teams (see above, Article I MN 4). The substantive precondition is 'specific and disproportionate challenges', for which the only example given is the arrival at the external borders of a large number of third-country nationals attempting to enter the given Member State without authorisation. Unlike joint operations, rapid interventions are to take place for only a 'limited period of time', and are limited to the territory of the Member State making the request. (The procedure for launching a rapid border intervention, set out in Article 39 of the Regulation, is not covered in this chapter.)

Article 38 Operational plans for joint operations I. In preparation of a joint operation the executive director, in cooperation with the host Member State, shall draw up a list of technical equipment, staff and profiles of staff needed, including those staff having executive powers, as applicable, to be authorised in accordance with Article 82(2). That list shall be drawn up taking into account the host Member State's available resources and the host Member State's request under Article 37. On the basis of those elements, the Agency shall define a package of technical and operational reinforcement as well as capacity-building activities to be included in the operational plan. 2. The executive director shall draw up an operational plan for joint operations at the external borden. The executive director and the host Member State, in dose and timely consultation with the participating Member States, shall agree 79 Former Frontex Regulation (EC) 2007/2004, Article 3. That Article also referred to 'pilot projects', which are now provided for under 'research and innovation': see Article 66(4) of the Regulation (not discussed in this chapter).

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Art. 38

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on the operational plan detailing the organisational and procedural aspects of the joint operation. 3. The operational plan shall be binding on the Agency, the host Member State and the participating Member States. It shall cover all aspects considered necessary for carrying out the joint operation, including the following: (a) description of the situation, with modus operandi and objectives of the deployment, including the operational aim; (b) the estimated time that the joint operation is expected to last in order to achieve its objectives; (c) the geographical area where the joint operation will take place; (d) a description of the tasks, including those requiring executive powers, responsibilities, including with regard to the respect for fundamental rights and data protection requirements, and special instructions for the teams, including on permissible consultation of databases and permissible senice weapons, ammunition and equipment in the host Member State; (e) the composition of the teams as well as the deployment of other relevant staff; (0 command and control provisions, including the names and ranks of the border guards of the host Member State responsible for cooperating with the memben of the teams and the Agency, in particular the names and ranks of those border guards who are in command during the period of deployment, and the place of the members of the teams in the chain of command; (g) the technical equipment to be deployed during the joint operation, including specific requirements such as conditions for use, requested crew, transport and other logistics, and financial provisions; (h) detailed provisions on immediate incident reporting by the Agency to the management board and to relevant national authorities; (i) a reporting and evaluation scheme containing benchmarks for the evaluation report, including with regard to the protection of fundamental rights, and final date of submission of the final evaluation report; (j) regarding sea operations, specific information on the application of the relevant jurisdiction and applicable law in the geographical area where the joint operation takes place, including references to national, international and Union law regarding interception, rescue at sea and disembarkation; in that regard the operational plan shall be established in accordance with Regulation (EU) No 656/2014;

(k) the terms of cooperation with third countries, other Union bodies, offices and agencies or international organisations; (I) general instructions on how lo ensure the safeguarding of fundamental rights during the operational activity of the Agency; (m) procedures whereby persons in need of international protection, victims of trafficking in human beings, unaccompanied minon and persons in a vulnerable situation are directed to the competent national authorities for appropriate assistance; (n) procedures setting out a mechanism to receive and transmit to the Agency complaints against any person participating in an operational activity of the Agency, including border guards or other relevant staff of the host Member State and memben of the teams, alleging breaches of fundamental rights in the context of their participation in an operational activity of the Agency; (o) logistical arrangements, including information on working conditions and the environment of the areas in which the joint operation is to take place. 320

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4. Any amendments to or adaptations of the opentional plan shall require the agreement of the eucutive director and the host Member State, after consultation of the participating Member States. A copy of the amended or adapted operational plan shall immediately be sent by the Agency to the participating Member States. S. This Article shall apply mutatis mutandis to all operations of the Agency.

I. Commentary Article 38 concerns the operational plans for joint operations. 80 It was first included in Frontex legislation in 2011, drawing upon a similar provision in respect of rapid interventions in Regulation 863/2007.81 Frontex's executive director drafts the operational plan, which is agreed between the executive director and the host Member State, after consultation with the participating Member States (Article 38(2)). Amendments or adaptations to the operational plan are agreed by the executive director and the host Member State, again in consultation with the participating states (Article 38(4)). The operational plan is stated to be 'binding' on all of the Agency, the host Member State, and the participating states (Article 38(3)). The operational plan is to provide for the 'organisational and procedural aspects of 2 the joint operation' (Article 38(2)). The main details to be specified are set out in Article 38(3). Many of these concern the scope of the operation: a description of the situation, the modus operandi, the objectives of the deployment, the operational aim, the time the operation is expected to last, and its geographical area. Others concern the personnel involved in the operation: their tasks and responsibilities, their composition, 'command and control' arrangements, and the terms of co-operation with third countries, other EU bodies and international organisations. The operational plan is also to include provision for the immediate reporting of incidents by the Agency to the management board and to relevant national authorities. 82 The operational plan is to make provision for fundamental rights guarantees. The 3 description of responsibilities is to include provision for fundamental rights and data protection (Article 38(3)(d)). The plan should have a reporting and evaluation scheme, including with regard to fundamental rights (Article 38(3)(i)). It should include general instructions on the safeguarding of fundamental rights during operations (Article 38(3)(1)). It should include procedures for persons in need of international protection, victims of human trafficking, unaccompanied minors, and persons in a vulnerable situation, to be directed to the competent national authorities (Article 38(3)(m)). In addition, the plan should specify a mechanism for transmission to the Agency of complaints alleging breaches of fundamental rights by persons participating in operations (Article 38(3)(n); on the complaints mechanism, see below, Article 111). In the case of operations at se.a, Article 38(3)(j) requires that the operational plan 4 include· information about 'the relevant jurisdiction and applicable law' in the geographical area in question. This information is to include reference to international and EU law on interception, rescue and disembarkation. (See author's chapter on the Sea Borders Regulation (EU) 656/2014.) 80

For a discussion of the content of actual operational plans, see Fink, Frontex and Human Rights,

p. 59-61. 81 Former Frontex Regulation (EC) 2007/2004, as amended by Regulation 1168/211. Articles 3a and 10. Compare ~egulation (EC) 863/2007, Article 8 e. 112 On the meaning of 'incident', see above, Article 2 MN 3. For a discussion of Frontex arrangements relating to the reporting of incidents through the Joint Operations Reporting Application ('JORA'), see Fink, Frontex and Human Rights, p. 72-73.

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Art. 39

By virtue of Article 38(5), the provisions concerning operations plans apply, with appropriate modifications, to 'all operations of the Agency'. The phrase 'operations of the Agency' is not defined in the Regulation, but may be interpreted by reference to Article 43 of the Regulation (below), which provides for instructions to members of teams to be in accordance with an operational plan. As the term 'team' relates to joint operations, rapid interventions, migration management support teams, return operations and return interventions (see above, Article 2 MN 5), it follows that all of those should have operational plans along the lines set out in Article 38.

Article 39 Procedure for launching a rapid border intervention [

... ) Article 40 Migration management support teams

l. Where a Member State faces disproportionate migratory challenges at particular hotspot areas of its external borders characterised by large inward mixed migratory flows, that Member State may request technical and operational reinforcement by migration management support teams composed of experts from relevant Union bodies, offices and agencies that shall operate in accordance with their mandates. That Member State shall submit a request for reinforcement and an assessment of its needs to the Commission. On the basis of that assessment of needs, the Commission shall transmit the request, as appropriate, to the Agency, to EASO, to Europol and to other relevant Union bodies, offices and agencies. 2. The relevant Union bodies, offices and agencies shall examine, in accordance with their respective mandates, the Member State's request for reinforcement and the assessment of its needs for the purpose of defining a comprehensive reinforcement package consisting of various activities coordinated by the relevant Union bodies, offices and agencies, to be agreed upon by the Member State concerned. The Commission shall coordinate that process. 3. The Commission, in cooperation with the host Member State and the relevant Union bodies, offices and agencies in accordance with their respective mandates, shall establish the terms of cooperation at the hotspot area and shall be responsible for the coordination of the activities of the migration management support teams. 4. The technical and operational reinforcement provided, with full respect for fundamental rights, by the standing corps in the framework of migration management support teams may include the provision of: (a) assistance, with full respect for fundamental rights, in the screening of thirdcountry nationals arriving at the external borders, including the identification, registration, and debriefing of those third-country nationals and, where requested by the Member State, the fingerprinting of third-country nationals and providing information regarding the purpose of these procedures; (b) initial information to persons who wish to apply for international protection and the referral of those persons to the competent national authorities of the Member State concerned or to the experts deployed by EASO;

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(c) tedmical and opentional assistance in the field of return in accordance with Artide 48, including the preparation and organisation of return operations; (d) necessary technical equipmenL 5. Migration management support teams shall include, where necessary, staff with expertise in child protection, trafficking in human beings, protection against gender-based penecution or fundamental rights.

I. Commentary The term 'migration management support teams' is defined in Article 2(19) of the I Frontex Regulation to mean 'teams of experts' who provide 'technical and operational reinforcement to Member States, including at hotspot areas'. 83 Since 2015, several such 'hotspots' have been established in Greece and Italy, at the initiative of the Commission.84 The concept of a 'migration management support team' was then introduced to Frontex legislation in 2016. In practice, the experts assist the host Member State with initial screening of persons who cross the external border by irregular means (including identification, interviews and the taking of fingerprints), decision-making on the admissibility and the merits of international protection claims, and decision-making concerning return of individuals to a state of nationality or third state.85 These teams are composed in particular of Frontex 'operational staff (above, Article 2 2 MN 4), experts from the European Asylum Support Office and Europol, and may involve the participation of experts of the European Union Agency for Fundamental Rights and of other EU and Member State bodies. Unlike the other forms of Frontex intervention provided for in the Regulation, a 3 Member State request for a migration management support team is addressed to the Commission.86 The Commission is responsible for consultation with Frontex, EASO, Europol and any other EU agencies concerned, for 'establish[ing] the terms of cooperation' at the hotspot, and for coordination of the activity of the team (Article 40(3)). For the Agency, Article 40 provides a mandate for participation, including for the involvement of members of its standing corps in assistance with screening, international protection decisions and return.

Article 41 Proposed actions at the external borders I. On the basis of the results of the vulnerability assessment or where a critical impact level is attributed to one or more external border sections and taking into account the relevant elements in the Member State's contingency plans, the Agency's "' The term 'hotspot area' is defined in Anicle 2(23) as an 'area created at the request of the host Member State', where various States and agencies co-operate 'with the aim of managing an existing or potential disproportionate migration challenge characterised by a significant increase in the number of migrants arriving at the external borders.' 84 The 'hotspot' approach was first proposed by the Commission in: A European Agenda on Migration, COM(2015) 240, p. 6. •~ For a description, see Luyten/Orav, 'Hotspots at EU external borders: State of play' (European Parliamentary Research Service, September 2020) . .. The Commission proposal which led to the 2016 Regulation had proposed that these requests too should be iransmined to the Agency: COM(2015) 671, Anicle 17, but that was changed in the legislative process. For a contemporary critique of giving Frontex responsibility for hotspots and related teams. see Rijpma, The Proposal for a European Border and Coast Guard, p. 19-20.

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Art. 42

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risk analysis and the analysis layer of the European situational picture, the executive director shall recommend to the Member State concerned to request that the Agency initiate, carry out or adjust joint operations, rapid border interventions or any other relevant actions by the Agency u set out in Article 36. 2. The Member State concerned shall respond to the recommendation of the executive director referred to in paragraph I within six working days. In the event of a negative response to the recommendation, the Member State shall also provide the justifications underlying that response. The eucutive director shall notify the management board and the Commission without delay about the recommended actions and the justifications for the negative response, with a view to assessing whether urgent action may be required in accordance with Article 42.

I. Commentary Article 41 permits Frontex to recommend that a Member State request its assistance. Provision on this subject is a significant element of the relationship between the Agency and Member States, and has changed on each occasion the Frontex legislation has been amended. Article 3 of the original 2004 Regulation conferred a power upon Frontex to 'launch initiatives' for joint operations, with the agreement of the host Member State(s) concemed. 87 In 2011, that text was changed to provide that Frontex could 'initiate and carry out' such operations, with the agreement of the host Member State.88 The 2016 Regulation adopted a new approach, providing that the executive director could recommend to a Member State that it 'initiate and carry out' joint operations or rapid border interventions. 119 That has been modified in the current Frontex Regulation to a recommendation that the Member State request assistance. 2 An executive director recommendation to a Member State is based upon the outcome of a vulnerability assessment (above, Article 32), or the attribution of a 'critical impact level' to a section of the external border (above, Articles 35 and 36). In those circumstances, before taking any other steps, the executive director must recommend that the Member State request the Agency to 'initiate, carry out or adjust' joint operations, rapid border interventions, or other actions. The Member State is to respond within six days. The outcome is then reported to the management board, in order to assess whether to trigger the process for making action by the Member State obligatory on the grounds that urgent action is necessary (see below, Article 42).

Article 42 Situation at the external borders requiring urgent action I. Where external border control is rendered ineffective to such an extent that it risks jeopardising the functioning of the Schengen area because: (a) a Member State does not implement the necessary measures in accordance with a decision of the management board referred to in Article 32(10); or (b) a Member State facing specific and disproportionate challenges at the external borders has either not requested sufficient support from the Agency under 87 Former Frontex Regulation (EC) 2007/2004, Article 3(1 ), which also referred to what are termed pilot projeas. 88 Former Frontex Regulation (EC) 2007/2004, as amended by Regulation 1168/2011, Article 3(1). •• Regulation (EU) 2016/1624, Article 15(4).

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Article 37, 39 or 40 or is not taking the necessary steps to implement actions under those Articles or under Article 41; the Council, on the basis of a proposal from the Commission, may adopt without delay a decision by means of an implementing act to identify measures to mitigate those risks to be implemented by the Agency and requiring the Member State concerned to cooperate with the Agency in the implementation of those measures. The Commission shall consult the Agency before making its proposal. 2. Where a situation requiring urgent action arises, the European Parliament shall be informed of that situation without delay as well as of any subsequent measures and decisions taken in response. 3. To mitigate the risk of putting the Schengen area in jeopardy, the Council decision referred to in paragraph 1 shall provide for one or more of the following measures to be taken by the Agency: (a) organise and coordinate rapid border interventions and deploy the standing corps, including teams from the reserve for rapid reaction; (b) deploy the standing corps in the framework of the migration management support teams, in particular at hotspot areas; (c) coordinate activities for one or more Member States and third countries at the external borders, including joint operations with third countries; (d) deploy technical equipment; (e) organise return interventions. 4. The executive director shall, within two working days from the date of adoption of the Council decision referred to in paragraph I: (a) determine the actions to be taken for the practical execution of the measures identified in that decision, including the technical equipment and the number and profiles of the operational staff needed to meet the objectives of that decision; (b) draw up a draft operational plan and submit it to the Member States concerned. 5. The executive director and the Member State concerned shall agree on the operational plan referred to in point (b) of paragraph 4 within three working days from the date of its submission. 6. The Agency shall, without delay, and in any case within five working days from the establishment of the operational plan, deploy the necessary operational staff from the standing corps for the practical execution of the measures identified in the Council decision referred to in paragraph I. Additional teams shall be deployed as necessary at a second stage, and in any case within 12 working days from the establishment of the operational plan. 7. The Agency and the Member States shall, without delay, and in any case within 10 working days from the establishment of the operational plan, send the necessary technical equipment and competent staff to the destination of deployment for the practical execution of the measures identified in the Council decision referred to in paragraph I. Additional technical equipment shall be deployed as necessary at a second stage in accordance with Article 64. 8. The Member State concerned shall comply with the Council decision referred to in paragraph I. For that purpose, it shall immediatdy cooperate with the Agency and take the necessary action to facilitate the implementation of that decision and the practical execution of the measures set out in that decision and in the operational plan agreed upon with the executive director, in particular by implementing the obligations provided for in Articles 43, 82 and 83. Ryan

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Art. 42

9. In accordance with Article 57 and, where relevant, Article 39, the Member States shall make available the operational staff determined by the eucutive director in accordance with paragraph 4 of this Article. 10. The Commission shall monitor the implementation of the measures identified in the Council decision referred to in paragraph I and the actions that the Agency takes for that purpose. If the Member Slate concerned does not comply with the Council decision referred to in paragraph I of this Article within 30 days and does not cooperate with the Agency in accordance with to paragraph 8 of this Article, the Commission may trigger the procedure provided for in Article 29 of Regulation (EU) 2016/399.

I. Commentary Article 42 contains a mechanism for authorising direct intervention by Frontex in the control of the external border of a Member Slate. This possibility was first provided by the 2016 Regulation, as part of the enhanced role conferred upon the Agency at that time. 90 The current Regulation made only minor adjustments. It is a pre-condition to recourse to the mechanism that external border control is 'ineffective to such an extent that it risks jeopardising the functioning of the Schengen area'. Moreover, the Member State in question must have been deficient in its engagement with Frontex in one of several ways: non-implementation of measures required in a management board decision (above, Article 32(10)); failure to request sufficient support from the Agency (see above, Articles 37, 39 and 40); failure to take the necessary steps to implement support which has been made available; or, failure to implement an executive director recommendation to request Frontex assistance (above, Article 41 MN 1-2). 2 The procedure for authorising Frontex intervention is as follows: after consulting with Frontex, the Commission may propose an implementing act, which the Council may then adopt (Article 42(1)). The European Parliament is to be kept informed at each stage (Article 42(2)). An implementing act should identify the mitigation measures to be taken by Frontex, to include one or more of the following: a rapid intervention; the deployment of Frontex standing corps personnel within a migration management support team; the coordination of the activities of Member States and third countries at the external borders; the deployment of technical equipment; and, the organisation of return interventions (Article 42(3)). Within two days, the executive director is to determine the actions to be taken, and to reflect those in a draft operational plan, which is submitted to the Member State concerned (Article 42(4)). 3 The Member State concerned is obliged to 'comply' with a Coundl decision (Article 42(8)). They are expected to agree upon the operational plan with the executive director within three days of its being submitted to it (Article 42(5)). More generally, after a Council decision, they are to 'immediately cooperate with the Agency', to take any action necessary to implement the Council decision and the operational plan (Article 42(8)). Where the Commission considers the Member State's co-operation deficient, it may initiate the procedure for temporary reintroduction of internal border controls, provided for in Article 29 of the Schengen Borders Code Regulation (EU) No 2016/399 (Article 42(10)). 4 Similarly to the vulnerability assessment (above, Article 32 MN 1-4), the power to enable Frontex intervention must be considered politically sensitive. 91 In its proposal

I

90 See former Frontex Regulation (EU) 2016/1624, Ankle 19. •• Duboul, Les cnjeux constitutionnels, p. 458.

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which led to the 2016 Regulation, the Commission had proposed that it should have the decision-making power, in consultation with the Agency. 92 That proposal was however rejected by the Council of Ministers, which preferred the approach eventually adopted, of a Council decision on the basis of a Commission proposal. 93

Article 43

Instructions to the teams 1. During the deployment of border management teams, return teams and migration management support teams, the host Member State or, in the case of cooperation with a third country in accordance with a status agreement, the third country concerned, shall issue instructions to the teams in accordance with the operational plan. 2. The Agency, through its coordinating officer, may communicate its views to the host Member State on the instructions given to the teams. In that case, the host Member State shall take those views into consideration and follow them lo the extent possible. 3. In cases where the instructions issued to the teams are not in compliance with the operational plan, the coordinating officer shall immediately report to the executive director, who may, if appropriate, take action in accordance with Article 46(3). 4. Members of the teams shall, in the performance of their tasks and in the exercise of their powers, fully respect fundamental rights, including access to asylum procedures and human dignity, and shall pay particular attention to vulnerable persons. Any measures taken in the performance of their tasks and in the exercise of their powers shall be proportionate to the objectives pursued by such measures. While performing their tasks and exercising their powers, they shall not discriminate against persons on the basis of any grounds such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation in line with Article 21 of the Charter. 5. Members of the teams who are not statutory staff shall remain subject to the disciplinary measures of their home Member State. The home Member State shall provide for appropriate disciplinary or other measures in accordance with its national law regarding violations of fundamental rights or international protection obligations in the course of any operational activity by the Agency. 6. Statutory staff deployed as members of the teams shall be subject to disciplinary measures as provided for in the Staff Regulations and the Conditions of Employment and measures of a disciplinary nature provided for in the supervisory mechanism referred to in point (a) of Article 55(5).

I. Commentary Article 43(1) provides that, during deployment, it is the responsibility of the host slate to give instructions to team members. The 'teams' in question include border • 1 Commission

Proposal. COM(2015) 471, Article 18. Council doc. 7649/16 of 8 April 2016, Article 18. In support for the approach of the Council of Ministers, see Rijpma, The Proposal for a European Border and Coast Guard, p. 18. •i

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Art.44

management teams (for joint operations and rapid interventions), migration management support teams, and return teams. (For the definition of a team, see above, Article 2 MN 5.) The host State may be either a Member Stare or a third state. In practice, Member States nevertheless retain command and control powers in respect of large assets and associated personnel. 94 2 Frontex is pennitted to intervene in relation to instructions to teams. Firstly, it may communicate its views on the instructions to the host Member State, through its coordinating officer (Article 43(2)). Secondly, if the instructions are not in compliance with the operational plan, the coordinating officer is to report that to the executive director (Article 43(3)). The latter may then take action to withdraw finance or to suspend or to terminate an operation (see below, Article 46(3)). 3 Team members are subject to specific obligations to respect fundamental rights (Article 43(4)). This includes ensuring access to asylum procedures, and paying 'particular attention' to vulnerable persons. Any measures taken - presumably, in relation to individuals - must be proportionate, and team members must not discriminate in carrying out their tasks. Statutory staff of the Agency (see above, Article 2 MN 4) may be the subject of disciplinary measures taken under EU Staff Regulations (Article 43(6)). Other officers may be subject to disciplinary measures by their home Member State (Article 43(5)). (See further the provision for a complaints mechanism, below, Article 111.)

Article 44 Coordinating officer 1. The Agency shall ensure the operational implementation of all the organisational aspects of joint operations, pilot projects or rapid border interventions, including the presence of statutory staff. 2. Without prejudice to Article 60, the executive director shall appoint one or more experts from the statutory staff to be deployed as a coordinating officer for each joint operation or rapid border intervention. The executive director shall notify the host Member State of the appointment. 3. The coordinating officer shall act on behalf of the Agency in all aspects of the deployment of the teams. The role of the coordinating officer shall be to foster cooperation and coordination among host and participating Member States. At least one fundamental rights monitor shall assist and advise the coordinating officer. In particular, the coordinating officer shall: (a) act as an interface between the Agency, the host Member State and the memben of the teams, providing assistance, on behalf of the Agency, on all issues relating to the conditions of the deployment to the teams; (b) monitor the correct implementation of the operational plan, including, in cooperation with the fundamental rights monitors, as regards the protection of fundamental rights and report to the executive director on this; (c) act on behalf of the Agency in all aspects of the deployment of the teams and report to the Agency on all those aspects; (d) report to the executive director where the instructions issued to the teams by the host Member States are not in compliance with the operational plan, in particular as regards fundamental rights and, where appropriate, suggest that the executive director consider taking a decision in accordance with Article 46.

""See !'ink, Frontex and Human Rights, p. 66-71.

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4. In the context of joint operations or rapid border interventions. the executive director may authorise the coordinating officer to assist in resolving any disagreement on the eecution of the operational plan and deployment of the teams.

I. Commentary Unlike the more general role of Agency liaison officer (above, Article 31 ), there is a coordinating officer for each joint operation or rapid border intervention. The coordinating officer is appointed from among the Frontex statutory staff (above, Article 2 MN 4). They act on behalf of the Agency in connection with the deployment of teams, and are to 'foster cooperation and coordination' among host and participating Member States, including team members (Article 44(3)). The co-ordinating officer's role includes monitoring compliance with the operational plan (Article 44(3)(b)). They report to the executive director where instructions to teams are not compliant with the operational plan, and may 'suggest' to the executive director the suspension or termination of Frontex activities (Article 44(3)(d); see further below, Article 46).

Article 45 Costs (

... ) Article 46 Decisions to suspend, terminate or not launch activities

1. The executive director shall terminate any activity of the Agency if the conditions to conduct those activities are no longer fulfilled. The executive director shall inform the Member State concerned prior to such termination. 2. The Member States participating in an operational activity by the Agency may request that the executive director terminate that operational activity. The executive director shall inform the management board of such request. 3. The executive director may, after informing the Member State concerned, withdraw the financing of an activity or suspend or terminate it if the operational plan is not respected by the host Member State. 4. The executive director shall, after consulting the fundamental rights officer and informing the Member State concerned, withdraw the financing for any activity by the Agency, or suspend or terminate any activity by the Agency, in whole or in part, if he or she considers that there are violations of fundamental rights or international protection obligations related to the activity concerned that are of a serious nature or are likely to penist. 5. The executive director shall, after consulting the fundamental rights officer, decide not to launch any activity by the Agency where he or she considen that there would already be serious reasons at the beginning of the activity to suspend or terminate it because it could lead to violations of fundamental rights or international protection obligations of a serious nature. The executive director shall inform the Member State concerned of that decision. 6. The decisions referred to in paragraphs 4 and 5 shall be based on duly justified grounds. When ta.king such decisions. the executive director shall take into account

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relevant information such as the number and substance of registered complaints that have not been resolved by a national competent authority, reports of serious incidents, reports from coordinating officers, relevant international organisations and Union institutions, bodies, offices and agencies in the areas covered by this Regulation. The aecutive director shall inform the management board of such decisions and provide it with justifications therefor. 7. If the executive director decides to suspend or terminate deployment by the Agency of a migration management support team, he or she shall inform the other relevant bodies, offices and agencies active in the hotspot area of that decision.

I. Commentary Provision for the suspension or termination of Frontex activities was first introduced into Frontex legislation in 2011, when it concerned joint operations.95 A more elaborate provision was included in the 2016 Regulation, for all forms of Frontex operation, and was the subject of only minor changes in 2019. 96 2 The use of the word 'shall' in Article 46(1) implies that the Frontex executive director is obliged to terminate activities if 'the conditions' for them are no longer fulfilled. The meaning of 'conditions' is undefined, however. It presumably includes a fundamental change in the objective situation, as regards the external border, demands for processing at a hotspot, or returns from a Member State. What of the withdrawal of support by a host Member State? Although the Regulation does not contain a power of termination by a host state, its approval is highly likely to be a 'condition', in that without it Frontex activity would struggle for effectiveness. 3 Article 46(2) states that the Member States participating in an operational activity may request that the executive director terminate it. The precise meaning of this provision is uncertain, however. Firstly, are 'the Member States participating' to be understood as the 'participating states' (see above, Article 2(22)), so that they do not include the host state? Secondly, assuming that is the case, must all participating states make the request, or may they do so individually? Thirdly, what is the effect of a request? Article 46(2) provides only that the executive director is to inform the management board. It may be that termination under Article 46(1) should occur, either because the participating states persuade the executive director that termination is justified by a change in the objective 'conditions', or because their own withdrawal of support amount to such a change. If that is not the case, however, there is no clear power in the Regulation to terminate an activity. In particular, the 'functions' of the management board (see below, Article 100), do not expressly refer to Article 46, while its general power to 'decide on any ... matter where provided for in this Regulation' (Article 100 (2)(ae)) may not apply, in the absence of an identifiable decision to be taken. 4 Under Article 46(3), the executive director may withdraw the financing of an activity, or suspend or terminate an activity, if the host Member State does not respect the operational plan. An important guarantee relating to fundamental rights within the Regulation is that the executive director is obliged to take one of those steps though potentially only 'in part' - if they consider that violations of fundamental rights or international protection obligations are occurring which are 'of a serious nature' or are 'likely to persist' (Article 46(4)). This duty is phrased in the present tense ('there are'), which leaves open the question whether previous violations of a serious I

•; Former Frontex Regulation (EC) 2007/2004, as amended by Regulation 1168/2011, Article 3(1a). The legislation also referred to pilot projects. .. See former Frontex Regulation (EU) 2016/1624, Article 25.

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nature would be sufficient to trigger this duty. A further extension, in Article 46(5), obliges the executive director nor to launch an activity, if they consider that to do so could lead to fundamental rights or international protection violations 'of a serious nature'. The powers in Article 46(4) and 46(5) are to be exercised after consulting the Agency's fundamental rights officer (below, Article 109).

Article 47 Evaluation of activities [... )

SECTION 8 Action by the Agency in the area of return Article 48 Return I. Without entering into the merits of return decisions, which remain the sole responsibility of the Member States, and in accordance with the respect for fundamental rights, general principles of Union law and international law, including international protection, the respect for the principle of non-refoulement and children's rights, with regard to return, the Agency shall: (a) provide technical and operational assistance to Member States in the area of return, including in: (i) the collection of information necessary for issuing return decisions, the identification of third-country nationals subject to return procedures and other prereturn, return-related and post-arrival and post-return activities of the Member States, to achieve an integrated system of return management among competent authorities of the Member States, with the participation of relevant authorities of third countries and other relevant stakeholders; (ii) the acquisition of travel documents, including by means of consular cooperation, without disclosing information relating to the fact that an application for international protection has been made or any other information that is not necessary for the purpose of the return; (ill) the organisation and coordination of return operations and provide assistance in relation to voluntary returns in cooperation with the Member States; (iv) assisted voluntary returns from the Member States, providing assistance to returnees during the pre-return, return-related and post-arrival and post-return phases, taking into account the needs of vulnerable persons; (b) provide technical and operational assistance to Member States experiencing challenges with regard to their return systems; (c) develop, in consultation with the fundamental rights officer, a non-binding reference model for national IT systems for return case management which describes the structure of such systems, as well as provide technical and operational assistance to Member States in developing such systems compatible with the model;

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(d) opente and further develop an integrated return management platform and a communication infrastructure that enables the linking of the return management systems of the Member States with the platform for the purpose of exchanging data and information, including the automated transmission of statistical data, and provide technical and operational assistance to Member States in connecting to the communication infrastructure; (e) organise, promote and coordinate activities enabling the exchange of information and the identification and pooling of best practices in return matten between the Member States; (0 finance or co-finance from its budget, in accordance with the financial rules applicable to the Agency, the operations, inten-entions and activities referred to in this Chapter, including reimbuning the costs incurred for the necessary adaptation of the national IT systems for return case management for the purpose of ensuring secure communication to the integrated return management platform. 2. The technical and operational assistance referred to in point (b) of paragraph I shall include activities to help Member States carry out return procedures by the competent national authorities by providing, in particular: (a) interpreting services; (b) practical information, including the analysis of such information, and recommendations by the Agency on third countries of return relevant for the implementation of this Regulation, in cooperation, where appropriate, with other Union bodies, offices and agencies, in particular EASO; (c) advice on the implementation and management of return procedures in compliance with Directive 2008/115/EC; (d) advice on and assistance in the implementation of measures taken by Member States in compliance with Directive 2008/115/EC and international law that are necessary to ensure the availability of returnees for return purposes and to prevent returnees from absconding and advice on and assistance in relation to alternatives to detention; (e) equipment, resources and expertise for the implementation of return decisions and for the identification of third-country nationals. 3. The Agency shall aim at building synergies and connecting Union-funded networks and programmes in the field of return in dose cooperation with the Commission and with the support of relevant stakeholden, including the European Migration Network.

I. Commentary 1

The provision for returns in Fronta legislation has evolved significantly since 2004. The original version of the legislation referred simply to Frontex 'assistance· in organising joint return operations of Member States.97 After amendments in 201 l, Frontex 'coordination' and 'organisation' of joint return operations was provided for, if requested by participating Member States, and Frontex was expressly permitted to charter aircraft for use in return operations.98 The 2016 Regulation went further, enabling Frontex to 'coordinate ... return-related activities', to provide 'technical and ..., Former Frontex Regulation (EC) 2007/2004, Anide 9(1), discussed by Mitsilegas, in Baldaccini/ Guild/Toner (eds), Whose Freedom, Security and Justice, p. 370. "" Former Frontex Regulation (EC) 2007/2004, as amended by Regulation 1168/2011, Anicle 9(1 ).

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operational assistance to Member States experiencing particular challenges with regard to their return systems', to organise return operations for a single Member State, and to arrange a 'return intervention' to assist a state in processing and implementing returns. 99 The current Regulation permits the Agency to provide technical and operational assistance to Member States in all circumstances, in addition to cases of 'particular challenges' (Article 48(l)(a) and (b)). The Regulation draws a distinction between 'return operations' and 'return interven- 2 tions'. 'Return operations' are concerned with the actual transfer of individuals to other states. That can be seen from the definition of 'return operation' in Article 2(27) of the Regulation as 'an operation that is organised or coordinated by the ... Agency ... under which returnees from one or more Member States are returned, either on a forced or voluntary basis, irrespective of the means of transport'. The detailed provisions concerning return operations are in Article 50 of the Regulation (not discussed in this chapter). In contrast, 'return interventions' are concerned with in-country processing of 3 individuals who may potentially be returned to another state. That can be seen from Article 53(1) of the Regulation, according to which 'Such intervention may consist in the deployment of return teams to the host Member State providing assistance in the implementation of return procedures and the organisation of return operations from the host Member State'. 100 The detailed provisions concerning return interventions are in Article 53 of the Regulation (not discussed in this chapter). Article 48( l) makes clear that the Agency and its officials should not enter into the 4 merits of return decisions, which 'remain the sole responsibility of the Member States'. Similar statements appear in Articles IO(l)(n) and 50(1) of the Regulation. This provision is linked to the requirement for the Agency's return activities to comply with the Return Directive 2008/115/EC (above, Article 2 MN 8), which envisages decisions by Member States.

Artide49 Information exchange systems and management of return

...

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Article 50 Return operations

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[

Article 51 Pool of forced-return monitors I. The Agency shall, after taking due account of the opinion of the fundamental rights officer, constitute a pool of forced-return moniton from competent bodies of the Member States who carry out forced-return monitoring activities in accordance 99 Former Frontex Regulation (EU) 2016/1624, Anides 27(1), 28 and 33, discussed in Rijpma, The Proposal for a European Border and Coast Guard, p. 20-21. 100 This is more illuminating than the definition of a 'research intervention' in Article 2(28) as 'consisting of the deployment of return teams and the organisation of return operations'.

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with Article 8(6) of Directive 2008/115/EC and who have been trained in accordance with Article 62 of this Regulation. 2. The management board shall, on the basis of a proposal from the executive director, determine the profile and the number of forced-return monitors to be made available to that pool. The same procedure shall apply with regard to any subsequent changes in the profile and overall numbers. Member States shall be responsible for contributing to the pool by nominating forced-return monitors corresponding to the defined profile, without prejudice to the ind~ndence of those monitors under national law, where national law so provides. The Agency shall also contribute fundamental rights monitors as referred to in Article 110 to the pool. Forced-return monitors with specific expertise in child protection shall be included in the pool. 3. Member States' contribution of forced-return monitors to return operations and interventions for the following year shall be planned on the basis of annual bilatenl negotiations and agreements between the Agency and Member States. In accordance with those agreements, Member States shall make the forced-return monitors available for deployment at the request of the Agency, unless they are faced with an exceptional situation substantially affecting the discharge of national tasks. Such a request shall be made at least 21 working days before the intended deployment, or five working days in the case of a rapid return intervention. 4. The Agency shall make the forced-return monitors available upon request to participating Member States to monitor, on their behalf, the correct implementation of the return operations and return interventions throughout their duntion. It shall make available forced-return monitors with specific expertise in child protection for any return opention involving children. S. Forced-return monitors shall remain subject to the disciplinary measures of their home Member State in the course of a return operation or return intervention. Statutory staff deployed as forced-return monitors shall be subject to the disciplinary measures provided for in the Staff Regulations and the Conditions of EmploymenL

I. Commentary Article 51 makes provision for forced-return monitors to be made available to Member States to monitor the correct implementation of return operations and return interventions. These arrangements are linked to Article 8(6) of the Return Directive 2008/115/EC, which requires that Member States have a 'forced-return monitoring system'. In line with that requirement, the statement in Article 51(4) that monitoring is 'on their behalf refers to the Member States. The implication is that this form of monitoring is not conducted on behalf of the Agency. 2 Frontex constitutes a pool of forced-return monitors, to which Member States nominate experts (Article 51(2)). The monitors may then be assigned to monitor Agency-supported return operations and return interventions in other Member States. The Agency's fundamental rights monitors (below, Article 110) may be deployed for this purpose.

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Article 53 Return interventions [

... ) SECTION 9 Capabilities Article 54 European Border and Coast Guard standing corps

[

... ) Article 55 Statutory staff in the standing corps

[

... ] Article 56 Member States' participation in the standing corps through long-term secondment

[

... ) Article 57 Member States' participation in the standing corps through short-term deployments

[

... ] Article 58 Member States• participation in the standing corps through the reserve for rapid reaction

[

... ] Article 59 Review of the standing corps

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Article 60 Antenna offices

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[ )

Article 61 Financial support for the development of the standing corps [

... ) Article 62 Training

1. The Agency shall, taking into account the capability roadmap referred to in Article 9(8), where available, and in cooperation with the appropriate training entities of the Member States, and, where appropriate, EASO, FRA, the European Union Agency for the Operational Management of Large-Scale IT Systems in the Area of Freedom, Security and Justice (eu-LISA) and the European Union Agency for Law Enforcement Training (CEPOL), develop specific training tools, including specific training in the protection of children and other persons in a vulnerable situation. Training content shall take into account relevant research outcomes and best practices. The Agency shall provide border guards, return specialists, return escorts and other relevant staff who are members of the standing corps as well as forced-return monitors and fundamental rights monitors with specialised training relevant to their tasks and powers. The Agency shall conduct regular exercises with those border guards and other members of the teams in accordance with the specialised training schedule referred to in the annual work programme of the Agency. 2. The Agency shall ensure that, in addition to the training referred to in Article 55(3), all statutory staff to be deployed as members of the teams have received adequate training in relevant Union and international law, including on fundamental rights, access to international protection, guidelines for the purpose of identifying persons seeking protection and directing them towards the appropriate procedures, guidelines for addressing the special needs of children, including unaccompanied minors, victims of trafficking in human beings, persons in need of urgent medical assistance and other particularly vulnerable persons, and, where it is intended that they participate in sea operations, search and rescue, prior to their initial deployment in operational activities organised by the Agency. Such training shall also cover the use of force in accordance with Annex V. 3. For the purpose of paragraph 2, the Agency, on the basis of agreements with selected Member States, shall implement the necessary training programmes in those Member States' specialised institutions for training and education, including the Agency's partnership academies in Member States. The Agency shall ensure that the training follows the common core curricula, is harmonised and fosters mutual understanding and a common culture based on the values enshrined in the Treaties. The Agency shall cover the full cost of training. 336

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The Agency, after obtaining the approval of the management board, may set up an Agency training centre to further facilitate the inclusion of a common European culture in the training provided. 4. The Agency shall take the necessary initiatives to ensure that all staff of the Member States who participate in the teams from the standing corps have received the training referred to in the fint subparagraph of paragraph 2. 5. The Agency shall take the necessary initiatives to ensure training for staff involved in return-related tasks who are allocated to the standing corps or to the pool referred to in Article 51. The Agency shall ensure that statutory staff and all staff who participate in return operations or return interventions have received training in relevant Union and international law, including on fundamental rights, access to international protection and on referral of vulnerable persons, prior to their participation in operational activities organised by the Agency. 6. The Agency shall establish and further develop common core curricula for the tnining of border guards and provide training at European level for instructors of the border guards of Member States, including with regard to fundamental rights, access to international protection and relevant maritime law, as well as a common curriculum for the training of staff involved in return-related tasks. The common core curricula shall aim to promote the highest standards and best practices in the implementation of Union border management and return law. The Agency shall draw up the common core curricula after consulting the consultative forum referred to in Article 108 (the 'consultative forum') and the fundamental rights officer. Member States shall integrate the common core curricula into the training they provide to their national border guards and staff involved in return-related tasks. 7. The Agency shall also offer additional training courses and seminan on subjects related to external border control and return of third-country nationals for officers of the competent services of Member States and, where appropriate, of third countries. 8. The Agency may organise training activities in cooperation with Member States and third countries on their territory. 9. The Agency shall establish an exchange programme enabling border guards participating in its teams and staff participating in the return intervention teams to acquire knowledge or specific know-how from experience and good practices abroad by working with border guards and staff involved in return-related tasks in a Member State other than their own. 10. The Agency shall establish and further develop an internal quality control mechanism to ensure a high level of training, expertise and professionalism of statutory staff, in particular statutory staff who participate in the operational activities of the Agency. On the basis of the implementation of the quality control mechanism, the Agency shall prepare an annual evaluation report which shall be annexed to the annual activity report.

I. Commentary Article 62 is concerned with the training of officials who may be deployed by Frontex within its operations. It covers all staff who are members of the standing corps (above, Article 5 MN 2), forced-return monitors (above, Article 51) and fundamental

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rights monitors (below, Article 110). All of these should have 'specialised training relevant to their tasks and powers'. 2 All statutory staff (above, Article 2 MN 4) who are to be deployed in teams (above, Article 2 MN S) are to receive training in 'relevant Union and international law' prior to their initial deployment (Article 62(2)). 101 That training is to include the following: fundamental rights; access to international protection; the identification of persons seeking protection; the special needs of children, victims of trafficking in human beings, persons in need of urgent medical assistance and other vulnerable person; the use of force (see Annex V to the Regulation, not discussed this Chapter); and, if they are to participate in sea operations, search and rescue. 3 The training obligations in Article 62(1) and (2) do not cover officials of host Member States involved in external border control, processing or return of migrants, but who are not deployed by Frontex. The position of host state officials is addressed indirectly through a Frontex task of assisting Member States and third countries in the training of national border guards, other relevant staff, and experts on return, which may involve the establishment of common training standards and programmes, including on fundamental rights' (see above, Article lO(l)(w)). That is taken forward by Article 62(6), which obliges Frontex to develop 'common core curricula for the training of border guards' and to provide training at European level for the instructors of the Member State border guards, including on fundamental rights, access to international protection and relevant maritime law.

Article 63 Acquisition or leasing of technical equipment

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Article 64 Technical equipment pool

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Article 65

Reporting on the Agency's capabilities

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Article 66

Research and innovation

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101 This obligation first appeared in former Frontex Regulation {EC) 2007/2004, as amended by Regulation 1168/2011, Article 5.

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SECTION 10 The European Travel Information and Authorisation System (ETIAS) Article 67 ETIAS Central Unit [

... ] SECTION 11 Cooperation

Article 68 Cooperation of the Agency with Union institutions, bodies, offices, agencies, and [

... ] Article 69 European cooperation on coast guard functions

[ ... )

Article 70 Cooperation with Ireland and the United Kingdom [... )

Article 71 Cooperation with third countries l. The Member States and the Agency shall cooperate with third countries for the purpose of European integrated border management and migration policy in accordance with point (g) of Article 3(1). 2. On the basis of the policy priorities set out in accordance with Article 8(4), the Agency shall provide technical and operational assistance to third countries within the framework of the external action policy of the Union, including with regard to the protection of fundamental rights and personal data and with regard to the principle of non-refoulemenL 3. The Agency and Member States shall comply with Union law, including norms and standards which form part of the Union acquis, including where cooperation with third countries takes place on the territory of those third countries.

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4. The establishment of cooperation with third countries shall sen'e to promote European integrated border management standards.

I. Commentary I

Article 71 contains framework provisions permitting the Member States and Frontex to cooperate with third countries. 102 According to Article 71 (I), such co-operation is to be for the purpose of European integrated border management (see above, Article 3(l)(g)). The reference to 'migration policy' in Article 71(1) may be taken to refer to the role of border management in upholding EU migration policy.' 03 2 Article 71(2) enables Frontex to provide technical and operational assistance to third countries. It is stated that that should be 'within the framework of the EU's external action policy of the Union, including as regards protection of fundamental rights, protection of personal data and the principle of non-refoulement. This formulation leaves it uncertain whether any of those principles is a legal limit upon the states with which the Agency may co-operate, or the forms that co-operation may take. 3 Article 71(3) requires the Agency and Member States to comply with Union law in any co-operation with third countries, including where that cooperation takes place on those states' territories. For this purpose, it is stated that EU law includes 'norms and standards which form part of the Union acquis'. That may be taken to imply that rules which apply to the EU Member States concerning external borders and return also apply to arrangements with third countries. Greater detail is provided for Member States in Article 72(3), and for the Agency in Article 73(2) (both discussed below).

Article 72 Cooperation of Member States with third countries 1. Member States may cooperate at an operational level with one or more third countries in relation to the areas covered by this Regulation. Such cooperation may include the exchange of information and may take place on the basis of bilateral or multilateral agreements, other forms of arrangements, or through regional networks established on the basis of those agreements. 2. When concluding the bilateral and multilateral agreements refened to in paragraph 1 of this Article, Member States may include provisions concerning the exchange of information and cooperation for the purposes of EUROSUR in accordance with Articles 75 and 89. 3. The bilateral and multilateral agreements and other forms of arrangements referred to in paragraph 1 shall comply with Union and international law on fundamental rights and on international protection, including the Charter, the European Convention for the Protection of Human Rights and Fundamental Freedoms and the 1951 Convention relating to the Status of Refugees, the 1967 Protocol thereto, and in particular the principle of non-refoulement. When implementing such agreements and arrangements, Member States shall assess and take into account the general situation in the third country on a regular basis, and shall have regard to Article 8. 10

'

These were previously contained in Article S4(1) of Regulation (EU) 2016/1624.

,o, See recital 87 to the Regulation. where the term 'migration policy" is used in that sense. 340

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I. Commentary Article 72(1) enables agreements and other arrangements between Member States I and third countries in the areas covered by the Regulation (i.e., external borders and return). In respect of external borders, Protocol 23 to the EU treaties provides that the power in Article 77(2)(b) to adopt EU measures 'shall be without prejudice to the competence of Member States to negotiate or conclude agreements with third countries as long as they respect Union law and other relevant international agreements.' 104 A general limitation upon Member States in the current Regulation is that their operational co-operation with third countries should not 'jeopardise the functioning of the Agency or the attainment of its objectives' (see above, Article 7(5)). Any Member State agreements or arrangements with third countries are to comply 2 with Union and international law on fundamental rights and on international protection. In implementing such agreements or arrangements, Member Stales are to assess and to take into account the 'general situation' in the third country. Presumably, that is required in order to ensure that the co-operation does not expose individuals to risks of harm or of refoulement.

Article 73 Cooperation between the Agency and third countries I. The Agency may cooperate, to the extent required for the fulfilment of its tasks, with the authorities of third countries competent in matten covered by this Regulation. The Agency shall comply with Union law, including norms and standards which form part of the Union acquis, including where cooperation with third countries takes place on the territory of those third countries. 2. When cooperating with the authorities of third countries, as referred to in paragraph I of this Article, the Agency shall act within the framework of the external action policy of the Union, including with regard to the protection of fundamental rights and personal data, the principle of non-refoulement, the prohibition of arbitrary detention and the prohibition of torture and inhuman or degrading treatment or punishment, with the support of, and in coordination with, Union delegations and, where relevant, CSDP missions and operations in accordance with point ij) of the second subparagraph of Article 68(1). 3. In circumstances requiring the deployment of border management teams from the standing corps to a third country where the memben of the teams will exercise executive powers, a status agreement drawn up on the basis of the model status agreement referred to in Article 76(1) shall be concluded by the Union with the third country concerned on the basis of Article 218 of the Treaty on the Functioning of the European Union (TFEU). The status agreement shall cover all aspects that are necessary for carrying out the actions. It shall set out, in particular, the scope of the operation, provisions on civil and criminal liability, the tasks and powen of the memben of the teams, measures related to the establishment of an antenna office and practical measures related to the respect of fundamental rights. The status agreement shall ensure that fundamental rights are fully respected during those operations and shall provide for a complaints mechanism. The European Data 104

For a discussion of Protocol 23, see Thym, Legal Framework for Entry and Border Controls, MN 6.

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Art. 73

Protection Supervisor shall be consulted on the provisions of the status agreement related to the transfer of data if those provisions differ substantially from the model status agreement. 4. Where available, the Agency shall also act within the framework of working arrangements concluded with the authorities of third countries referred to in paragraph 1 of this Article in accordance with Union law and policy, in accordance with Article 76(4). The working arrangements referred to in the first subparagraph of this paragraph shall specify the scope, nature and purpose of the cooperation and shall be related to the management of operational cooperation. Such working arrangements may include provisions concerning the exchange of sensitive non-classified information and cooperation in the framework of EUROSUR in accordance with Article 74(3). The Agency shall ensure that the third countries to which information is transferred only process that information for the purposes for which it was transferred. Any working arrangements on exchanging classified information shall be concluded in accordance with Article 76(4) of this Regulation. The Agency shall request prior authorisation from the European Data Protection Supervisor where those working arrangements provide for the transfer of personal data and where provided for by Regulation (EU) 2018/1725. 5. The Agency shall contribute to the implementation of the Union external policy on return and readmission within the framework of the external action policy of the Union and regarding matters covered by this Regulation. 6. The Agency may receive Union funding in accordance with the provisions of the relevant instruments supporting third countries and activities relating to them. It may launch and finance technical assistance projects in third countries regarding matters covered by this Regulation and in accordance with the financial rules applicable to the Agency. Such projects shall be included in the single programming document referred to in Article 102. 7. The Agency shall inform the European Parliament, the Council and the Commission of activities conducted pursuant to this Article and, in particular, of the activities related to technical and operational assistance in the field of border management and return in third countries, and the deployment of liaison officers, and shall provide them with detailed information on compliance with fundamental rights. The Agency shall make public the agreements, working arrangements, pilot projects and technical assistance projects with third countries in accordance with Article 114(2). 8. The Agency shall include an assessment of the cooperation with third countries in its annual reports.

I. Commentary Article 73( 1) permits Frontex to co-operate with the relevant authorities in third countries, in order to fulfil its 'tasks' (see above, Article 10). By virtue of Article 73(4), that co-operation may take place under 'working arrangements' with those authorities, although that does not appear to be mandatory ('where available').105 Before the Frontex management board may approve any such working arrangements, the European Commission agreement must be notified and give its '" On working arrangements, see generally Coman-Kund, European Union Agencies as Global Actors,

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prior approval, and the European Parliament is to be provided with 'detailed information' (see below, Article 76(4)).U"' Article 73 sets out legal and fundamental rights constraints upon the Agency in its 2 co-operation with the authorities of third countries. Article 73( l) repeats the statement in Article 71(3) (above) that it is to comply with EU law, 'including nonns and standards which fonn part of the Union acquis'. Article 73(2) then gives a list of specific obligations of relevance, which is similar to the list applicable to Member States in Article 72(3). These include protection of fundamental rights and personal data, the principle of non-refoulement, the prohibition of arbitrary detention, and the prohibition of torture and inhuman or degrading treatment or punishment. Article 73(3) makes status agreements with third countries obligatory where mem- 3 bers of the Frontex standing corps are deployed to a third country where they will exercise executive powers (see below, Article 74). A status agreement is it cover inter alia the scope of the operation, provisions on civil and criminal liability, the tasks and powers of the members of the teams, the establishment of antenna offices, respect for fundamental rights and a complaints mechanism relating to those. Provision is made in Article 76( l) of the Regulation for a model status agreement to be drawn up by the Commission. 107 These agreements are concluded on behalf of the Union by the Council of Ministers under Article 218 TFEU. 108

Article 74 Technical and operational assistance provided by the Agency to third countries l. The Agency may coordinate opentional coopention between Member States and third countries and provide technical and opentional assistance to third countries in the context of European integrated border management. 2. The Agency may carry out actions related to European integrated border management on the territory of a third country subject to the agreement of that third country. 3. Operations on the territory of a third country shall be included in the annual work programme adopted by the management board in accordance with Article 102, and shall be carried out on the basis of an opentional plan agreed between the Agency and the third country concerned and in consultation with the participating Member States. Where a Member State or Member States neighbour the third country or border the opentional area of the third country, the opentional plan and any amendments thereto shall be subject to the agreement of that Member State or those Member States. Articles 38, 43, 46, 47 and 54 lo 57 shall apply mutatis mutandis to deployments in third countries. 4. The executive director shall ensure the security of the staff deployed in third countries. 100 As of May 2021, the Frontex website recorded working arrangements with authorities in 18 slates or territories: Albania, Armenia, Azerbaijan, Belarus, Bosnia and Herzegovina, Canada, Cape Verde, !'forth Macedonia, Georgia, Kosovo, Moldova, Montenegro, Nigeria, Russian, Serbia, Turkey, Ukraine and the USA. available at: https://frontex.europa.eu/we-build/other-panners-and-projects/non-eu-countries [last accessed 12 May 2021). 1117 The model status agreement, based on the 2016 Frontex Regulation, is in COM(2016) 747. 108 The first such agreement to be publis.hed is that with Albania (OJ 2019 L 46/3). Agreements have also be concluded with Montenegro (text in Council doc. 6847/1/19 of 19 May 2020) and Serbia (text in Council doc. 15581/1/18 of 19 May 2020).

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For the purpose of the fint subparagraph, Member States shall inform the executive director of any concern related to the security of their nationals should they be deployed on the territory of certain third countries. Where the security of any staff member deployed in third countries cannot be guaranteed, the executive director shall take appropriate measures by suspending or terminating the corresponding aspects of the technical and operational assistance provided by the Agency to that third country. 5. Without prejudice to the deployment of the members of the standing corps in accordance with Articles 54 lo 58, the participation of Member States in operations on the territory of third countries shall be voluntary. In addition to the relevant mechanism referred to in Article 57(9) and paragraph 4 of this Article, where the security of its participating staff cannot be guaranteed to the satisfaction of the Member State, that Member State may opt out of its respective contribution to the operation in the third country in question. Where a Member State invokes such an exceptional situation, it shall provide comprehensive reasons and information on the situation to the Agency in writing, the content of which shall be included in the report referred to in Article 65. Such reasons and information shall be provided during the annual bilateral negotiations or no later than 21 days prior to the deployment. The deployment of staff seconded in accordance with Article 56 shall be subject to the consent of the home Member Sate communicated upon notification by the Agency and no later than 21 days prior to the deploymenL 6. Operational plans as referred to in paragraph 3 may include provisions concerning the exchange of information and cooperation for the purpose of EUROSUR in accordance with Articles 75 and 89.

I. Commentary The 2016 Regulation was the first to make provision for Frontex to provide assistance to third states. 109 The current text permits Frontex to co-ordinate Member State operational co-operation with third countries, and to provide technical and operational assistance to those countries (Article 74(1)). 2 Under Article 74(2), Frontex itself may carry out actions on the territory of a third country, with its agreement. This possibility presumably covers the deployment both of Frontex teams and of other assets. In the 2016 Regulation, the possibility of operations in a third country was limited to those involving one or more Member States and a third country neighbouring at least one of them. 110 In the current version, that limitation has been removed, so that actions may potentially take place in any third country, and do not require the involvement of any Member State. 3 Operations in a third country must be carried out on the basis of an operational plan agreed with the third country, after consultation with participating Member States (Article 74(3). Any Member State neighbouring the third country, or bordering the proposed operational area, must agree to the operational plan and any amendments. Under Article 76(5), operational plans are to be notified to the Commission, and the European Parliament it to be kept fully informed of these activities. 4 Member States' participation in operations on the territory of third countries is voluntary (Article 74(5)). This statement presumably covers the provision both of personnel to the European standing corps, and of technical equipment (see the concept "" Regulation (F.U) 2016/1624, Article 54 (3). 110

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of 'participating state' above, Article 2 MN 6). It is expressly stated that the deployment to a third country of staff on long-term secondment to Frontex is subject to the home state's consent, which should be provided not later than 21 days before the deployment. In addition, a Member State may opt out of its contribution to an operation in a third country on security grounds, subject to the provision of comprehensive reasons and information to the Agency.

Article 75 Exchange of information with third countries in the framework of EUROSUR [ ... ]

Article 76 Role of the Commission with regard to cooperation with third countries I. The Commission, after consulting the Member States, the Agency, FRA and the European Data Protection Supervisor, shall draw up a model status agreement for actions conducted on the territory of third countries. 2. The Commission, in cooperation with the Member States and the Agency, shall draw up model provisions for the exchange of information in the framework of EUROSUR in accordance with Articles 70(2) and 72(2). The Commission, after consulting the Agency and other relevant Union bodies, offices or agencies, including FRA and the European Data Protection Supervisor, shall draw up a model for the working arrangements referred to in Article 73(4). That model shall include provisions related to fundamental rights and data protection safeguards addressing practical measures. 3. Before a new bilateral or multilateral agreement as referred to in Article 72(1) is concluded, the Member States concerned shall notify the Commission of the draft provisions related to border management and return. The Member States concerned shall notify the provisions of such existing and new bilateral and multilateral agreements related to border management and return to the Commission, which shall inform the Council and the Agency thereof. 4. Before the management board approves any working arrangements between the Agency and competent authorities of third countries, the Agency shall notify them to the Commission, which shall give its prior approval. Before any such working arrangement is concluded, the Agency shall provide the European Parliament with detailed information as regards the parties to the working arrangement and its envisaged content. 5. The Agency shall notify the operational plans referred to in Article 74(3) to the Commission. Any decision to deploy liaison officers to third countries in accordance with Article 77 shall be subject to receiving the prior opinion of the Commission. The European Parliament shall be kept fully informed of those activities without delay.

I. Commentary Article 76 concerns the role of the European Commission in respect of Frontex cooperation with third countries. The provisions in Articles 76(1) and (3) concerning Ryan

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Art. 11

status agreements are covered above in relation to Article 73(3). The provisions in Article 76(4) concerning working arrangements are covered above in relation to Article 73(1 ). The provisions in Article 76(5) concerning operational plans are covered above in relation to Article 74.

Article 77 Liaison officers in third countries [

... ) Article 78 Observers participating in the Agency's activities

[ ... )

CHAPTER III FALSE AND AUTHENTIC DOCUMENTS ONLINE (FADO) Article 79 [ ... )

CHAPTER IV GENERAL PROVISIONS SECTION 1 General rules Article 80 Protection of fundamental rights and a fundamental rights strategy I. The European Border and Coast Guard shall guarantee the protection or fundamental rights in the performance or its tasks under this Regulation in accor• dance with relevant Union law, in particular the Charter, and relevant international law, including the 1951 Convention relating to the Status or Refugees, the 1967 Protocol thereto, the Convention on the Rights or the Child and obligations related to access to international protection, in particular the principle or non-refoulemenL For that purpose, the Agency, with the contribution or and subject to the endorsement by the fundamental rights officer, shall draw up, implement and further develop a fundamental rights strategy and action plan, including an effective mechanism for monitoring respect for fundamental rights in all the activities or the Agency. 2. In the performance of its tasks, the European Border and Coast Guard shall ensure that no person, in contravention of the principle of non-refoulement, be 346

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forced to disembark in, forced to enter, or conducted to a country, or be otherwise banded over or returned to the authorities of a country where there is, inter alia, a serious risk that he or she would be subjected to the death penalty, torture, persecution, or other inhuman or degrading treatment or punishment, or where his or her life or freedom would be threatened on account of his or her race, religion, nationality, sexual orientation, membership of a particular social group or political opinion, or from which there is a risk of expulsion, removal, extradition or return to another country in contravention of the principle of non-refoulemenL 3. In the performance of its tasks, the European Border and Coast Guard shall take into account the special needs of children, unaccompanied minon, penons with disabilities, victims of tnfficking in hnman beings, persons in need of medical assistance, persom in need of international protection, persons in distress at sea and other penons in a particularly vulnerable situation, and shall address those needs within its mandate. The European Border and Coast Guard shall in all its activities pay particular attention to children's rights and ensure that the best interests of the child are respected. 4. In the performance of its tasks, in its relations with Member States and in its cooperation with third countries, the Agency shall take into account the reports of the consultative forum referred to in Article 108 and the reports of the fundamental rights officer.

I. Commentary The institutional arnngements upholding fundamental rights have evolved sig- I nificantly since they were first introduced into Frontex legislation in 2011 (see above, Article 1 MN 11). Within the current Regulation, Article 80 is essentially a framework provision. The first subparagraph of Article 80(1) sets out the core obligation on the Agency to 'guarantee the protection of fundamental rights in the performance of its tasks'. It goes on to specify that that guarantee refers to relevant EU law, including the CFR, and relevant international law, including the Refugee Convention and Protocol, the UN Convention on the Rights of the Child and obligations of access to international protection and non-refoufement. Although the European Convention on Human Rights is not expressly mentioned here, it must be considered part of 'relevant international law', and presumably for that reason is mentioned elsewhere in the text of the Regulation.' 11 (On the meaning of 'fundamental rights' in the Regulation, see above, Article 2 MN 9.) The second subparagraph of Article 80(1) obliges the Agency to 'draw up, implement 2 and further develop' a fundamental rights strategy and action plan. All of that is to be done with the contribution of, and endorsement by, the Agency's fundamental rights officer.. The strategy and action plan are to include an effective mechanism for monitoring respect for fundamental rights in all the Agency's activities. 112 Article 80(2) sets out a comprehensive non-refoufement guarantee relating to Frontex 3 activities. It is in the same terms as Article 4(1) of the Sea Borders Regulation (EU) 656/ 2014. Similarly, Article 80(3) sets out a comprehensive statement of the situations of particular need which ought to be recognised in the practice of the Agency. This is very 111 See Article 72(3) (Frontex agreements with third countries) and Annex V, paras 3 and 4 (use of force by Frontex statutory staff) 112 The most recent version of the Agency's fundamental rights strategy was approved by the management board in February 2021, and may be found at https://frontex.europa.eu/assets/Key_Documents/ Fundamental_Rights_Strategy/Fundamental_Rights_Strategy.pdf (last accessed 12 May 2021 ].

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Frontex Regulation (EU) 2019/1896

Art. 81

similar to Article 4(4) of the Sea Borders Regulation (EU) 656/2014, save that references to 'persons in distress at sea' and to the best interests of the child are included here. (See, author's chapter on the Sea Borders Regulation (EU) 656/2014, Article 4 MN 15.)

Article SI Code of conduct I. The Agency shall, in coopention with the consultative forum, draw up and further develop a code of conduct which shall apply to all border control opentions coordinated by the Agency and all persons participating in the activities of the Agency. The code of conduct shall lay down procedures intended to guarantee the principles of the rule of law and respect for fundamental rights with particular focus on vulnerable persons, including children, unaccompanied minors and other persons in a vulnerable situation, as well as on persons seeking international protection. 2. The Agency shall, in cooperation with the consultative forum, draw up and further develop a code of conduct for return operations and return interventions, which shall apply during all return operations and return interventions coordinated or organised by the Agency. That code of conduct shall describe common standardised procedures to simplify the organisation of return operations and return interventions, and shall assure return in a humane manner and with full respect for fundamental rights, in particular the principles of human dignity, the prohibition of torture and of inhuman or degrading treatment or punishment, the right to liberty and security and the right to the protection of personal data and non-discrimination. 3. The code of conduct for return shall in particular pay attention to the obligation of Member States to provide for an effective forced-return monitoring system as set out in Article 8(6) of Directive 2008/115/EC and to the fundamental rights strategy.

I. Commentary I

Article 81 requires Frontex to have two Codes of Conduct. 113 Article 81 (I) provides for a general code of conduct for all persons participating in the activities of the Agency, including in border control. That code is intended to guarantee the rule of law, and respect for fundamental rights, with a particular focus on vulnerable persons. Article 81(2) provides for a specific code of conduct for Agency return operations and return interventions. That code is to ensure return in a humane manner with full respect for fundamental rights, including human dignity, the prohibition of torture and inhuman or degrading treatment or punishment, the rights to liberty and security, the protection of personal data and non-discrimination. The codes are to be drawn up and developed in co-operation with the Consultative Forum on fundamental rights matters (see below, Article 108).

Artide82 Tasks and powers of the members of the teams I. Memben of the teams shall have the capacity to perform tasks and exercise powen for border control and return as well as those which are necessary for the 111 At the time of writing. the two Codes of Conduct may be accessed at: https://fronteLeuropa.eu/ about- frontex/key-documents/? category=code-of-cond uct !last accessed 12 May 2021 ].

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realisation of the objectives of Regulations (EU) No 656/2014 and (EU) 2016/399 and Directive 2008/115/EC. 2. The performance of tasks and the exercise of powers by members of the teams, in particular those requiring executive powen, shall be subject to the authorisation of the host Member State on its territory as well as to applicable Union, national or international law, in particular Regulation (EU) No 656/2014, as described in the operational plans referred to in Article 38. 3. While performing their tasks and exercising their powen, members of the teams shall fully ensure respect for fundamental rights and shall comply with Union and international law and the national law of the host Member State. 4. Without prejudice to Article 95(1) as regards statutory staff, members of the teams shall only perform tasks and exercise powers under instructions from and, as a general rule, in the presence of border guards or staff involved in return-related tasks of the host Member State. The host Member State may authorise members of the teams to act on its behalf. 5. The host Member State may report incidents related to non-compliance with the operational plan by members of the teams, including in relation to fundamental rights, to the Agency via the coordinating officer for possible follow-up, which may include disciplinary measures. 6. Statutory staff who are members of the teams shall wear the uniform of the standing corps while performing their tasks and exercising their powers. Members of the teams who are seconded from Member States for a long term or who are deployed for a short term shall wear their own uniform while performing their tasks and exercising their powers. By way of derogation from the first subparagraph of this paragraph, the decision of the management board referred to in point (a) of Article 54(4) shall indicate the profiles to which the obligation to wear a uniform does not apply due to the specific nature of the operational activity. All members of the teams shall wear visible personal identification and a blue armband with the insignias of the Union and of the Agency on their uniforms, identifying them as participating in a joint operation, migration management support team deployment, pilot project, rapid border intervention, return operation or return intervention. For the purposes of identification vis-a-vis the national authorities of the host Member State, members of the teams shall at all times carry an accreditation document, which they shall present upon request. The design and specifications for the uniforms of the statutory staff shall be established by a decision of the management board, on the basis of a proposal from the executive director made after receiving the opinion of the Commission. 7. For staff who are seconded to the Agency or deployed from a Member State for a short term, the ability to carry and use service weapons, ammunition and equipment shall be subject to the home Member State's national law. The ability to carry and use service weapons, ammunition and equipment by the statutory staff who are deployed as members of the teams shall be subject to the framework and detailed rules laid down in this Article and Annex V. For the purpose of implementing this paragraph, the executive director may authorise statutory staff to carry and use weapons in accordance with the rules adopted by the management board, in line with point (b) of Article 55(5). 8. Members of the teams, including statutory staff, shall be authorised for the relevant· profiles by the host Member State to perform tasks during a deployment that require the use of force, including the carrying and use of service weapons,

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Art. e2

Frontex Regulation (EU) 2019/1896

ammunition and equipment, and shall be subject to the consent of either the home Member State or, for statutory staff, the Agency. The use of force, including the carrying and use of service weapons, ammunition and equipment, shall be exercised in accordance with the national law of the host Member State and in the presence of border guards of the host Member State. The host Member State may, with the consent of the home Member State or the Agency, where appropriate, authorise members of the teams to use force on its territory in the absence of border guards of the host Member State. The host Member State may prohibit the carrying of certain service weapons, ammunition and equipment, provided that its own law applies the same prohibition to its own border guards or staff when involved in return-related tasks. The host Member State, in advance of the deployment of the members of the teams, shall inform the Agency of the permissible service weapons, ammunition and equipment and of the conditions for their use. The Agency shall make this information available to Member Stales. 9. Service weapons, ammunition and equipment may be used in legitimate selfdefence and in legitimate defence of members of the teams or of other persons in accordance with the national law of the host Member State in line with relevant principles of international human rights law and the Charter. 10. For the purpose of this Regulation, the host Member State shall authorise members of the teams lo consult Union databases, the consultation of which is necessary for fulfilling operational aims specified in the operational plan on border checks, border surveillance and return, through their national interfaces or another form of access provided in the Union legal acts establishing such databases, as applicable. The host Member State may also authorise members of the teams to consult its national databases where necessary for the same purpose. Member States shall ensure that they provide such database access in an efficient and effective manner. Members of the teams shall consult only those data which are strictly necessary for performing their tasks and exercising their powers. The host Member State shall, in advance of the deployment of the members of the teams, inform the Agency of the national and Union databases which may be consulted. The Agency shall make this information available to all Member States participating in the deployment. That consultation shall be carried out in accordance with Union data protection law and the national data protection law of the host Member State. 11. Decisions to refuse entry in accordance with Article 14 of Regulation (EU) 2016/399 and decisions refusing visas at the border in accordance with Article 35 of Regulation (EC) No 810/2009 shall be ta.ken only by border guards of the host Member State or by memben of the teams if they are authorised by the host Member State to act on its behalf.

I. Commentary 1

Article 82( l) provides that members of Frontex teams shall have the capacity to perform certain 'tasks and powers'. The term 'members of the teams' applies to all forms of Frontex intervention in support of Member States (see above, Article 2 Mt,; 5). The reference to 'tasks and powers' has two distinct aspects. Firstly, members of Frontex teams are to have tasks and to exercise powers for border control and return. Secondly, they are to have the tasks and powers 'which are necessary for the realisation of the objectives of the Sea Borders Regulation (EU) 656/2014, the Schengen Borders Code Regulation (EU) 2016/399, and the Return Directive 2008/115/EC. This separation 350

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implies that the border and return tasks and powers of Frontex team members may exceed those necessary for implementation of the EU legislation. The statement in Article 82(2) requiring the host Member State's authorisation for the performance of tasks and the exercise of powers was added in 2019. 114 It leads to potentially complex legal questions. May the host state's authorisation be given generally (e.g. through legislation), or must it be done for each operation? If the latter, is the requirement of host state authorisation additional to its agreement to the operational plan (see above, Article 38), or may authorisation be conferred through the operational plan? In any event, may a host Member State revoke or suspend authorisation after an operation has commenced, and, if so, are their limits on its powers to do so? Article 82(2) and (3) each refer to legal obligations that must be respected by members of teams, but in different terms. The focus of Article 82(2) is on the conferral of tasks and powers, which is stated to be 'subject to ... applicable Union, national or international law', including the Sea Borders Regulation (EU) 656/2014. The focus of Article 82(3) is upon the actions of members of teams, which 'shall fully ensure respect for fundamental rights and shall comply with Union and international Jaw and the national law of the host Member State'. The meaning of 'fundamental rights' in the Regulation is discussed above (see Article 2 MN 9). On the lack of clarity concerning the meaning of EU law and international law obligations, see above, Article 2 MN 10. Article 82(4) requires that members of Frontex teams perform tasks and exercise powers only under instructions from and in the presence of officials of the host state. The requirement as regards 'presence' only applies 'as a general rule', however - i.e., there may be exceptions. 115 It is provided in Article 82(4) that the host Member State may 'authorise members of the teams to act on its behalf. Under Article 82(5), the host Member State may report incidents related to noncompliance with the operational plan, including in relation to fundamental rights, by members of Frontex teams. This is done via the Frontex co-ordinating officer, and may lead to disciplinary action (see above, Article 43). It should be noted that this provision is discretionary - i.e. there is no stated duty upon the host Member State to report these incidents. Article 82(6) is concerned with identification by members of Fronta teams. As regards uniforms, the default position is that Frontex statutory staff wear a Frontex uniform, while those seconded or deployed by Member States wear their home state uniform. A decision of the management board may indicate staff profiles where the obligation to wear a uniform does not apply. All members of Frontex teams are to 'wear visible personal identification' and a blue Frontex armband. Finally, members of teams should carry an accreditation document - the details of which are specified in Article 83 of the Regulation (below) - to enable them to identify themselves to the authorities of the host state. 116 Articles 82(7) and (8) set out the legal regime in relation to service weapons. For a member of a team who is seconded or deployed from a Member State, the ability to carry service weapons, ammunition and equipment depends upon their home state law, while, for statutory Frontex staff, it depends on the authorisation of the executive 11

Compare former Fronta Regulation (EU) 2016/1624, Article 40. Article 82(4) provides that the rules are 'without prejudice' to Article 95(1) concerning Frontex statutory staff, presumably because Frontex retains authority over those staff. 116 The original version of this provision stated that the accreditation document should also be presented to 'citizens' of the host State: former Frontex Regulation (EC) 2007/2004, Article 10(4), as amended by Regulation (EC) 863/2007. That disappeared in Anide 40 of former Frontex Regulation (EU) 2016/1624. •

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director (Article 82(7)). The host state may prohibit certain service weapons, ammunition and equipment, provided its law applies the same prohibition to its own officials involved in border control or returns (Article 82(8)). 8 Article 82(8) and (9) each address the use of force by memben of teams, lncluding the use of service weapons, etc. Under Article 82(8), the use of force is permitted only with the consent both of the host state, and of either the home state for those seconded or deployed, or of the Agency for statutory staff. Moreover, the use of force should take place only in accordance with the host state's law. The default position is that force should be used only in the presence of home state border officials. The host state may though authorise the use of force without the presence of its border guards, with the consent of the home Member State or the Agency (as the case may be). Article 82(9) provides that service weapons, etc., may be used in legitimate self-defence, ·and in legitimate defence of members of the teams or of other persons, in accordance with host state law, and 'relevant principles' of international hwnan rights law and the CFR 9 Article 82(10) is concerned with access to databases by members of teams. The host state shall authorise members of the teams to consult Union databases in fulfilling operational aims. The list of EU databases to which this relates is not stated in the Regulation, but probably means Eurodac, the Schengen Information System, the Visa Infonnation System and the European Criminal Records Information System. 117 In addition, the host State may authorise members of the teams to consult its national databases for the same purpose. 10 Article 82(11) concerns decisions to refuse entry under Article 14 of the Schengen Borders Code Regulation (EU) 2016/399, or to refuse a visa applied for at the border under Article 35 of the Visa Code Regulation (EC) No 810/2009. These decisions must be taken by the host state's own border officials, except where members of the teams have been authorised by the host Member State to act on its behalf. 118 As Article 82( 11) refers only to negative decisions, it appears permissible for a member of a Frontex team to permit an individual to enter under the Schengen Borders Code Regulation (EU) 2016/399 without specific authorisation from the host state. Allegations of non-respect for fundamental rights by members of teams in the context of Frontex operations may be made through its complaints mechanism (see below, Article 11 l).

Article 83 Accreditation document I. The Agency shall, in cooperation with the host Member State, issue a document in the official language of the host Member State and another official language of the institutions of the Union to the members of the teams for the purpose of identifying them and as proof of the holder's rights to perform tasks and exercise powen as referred to in Article 82. That document shall include the following features of each member of the teams: (a) name and nationality; (b) rank or job title; 117 For a discussion of current and future EU immigration and criminal law databases, sec Thym. Legal Framework for Entry and Border Controls, MN 17b; Vavoula, 'Consultation of EU Immigration Databases for Law Enforcement Purposes: a Privacy and Data Protection Assessment', EJML 22 (2020), p. 139-177. 111 The possibility to authorise negative decisions by members of Frontex teams was introduced by Regulation 2016/1624, Article 40(9).

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(c) a recent digitised photognph; and (d) tasks authorised to be performed during the deployment. 2. The document shall be returned to the Agency at the end of each joint operation, migration management support team deployment, pilot project, rapid border intervention, return operation or return intervention.

I. Commentary Article 83 provides further detail concerning the accreditation document referred to in Article 82(6) of the Regulation (above). This is to be issued to members of teams by Frontex, in cooperation with the host Member State. It is to be in an official language of the host Member State 119 and another official language of the EU institutions. The document is to refer to the official's name and nationality 120, and their rank or job title, and is to include a recent digitised photograph. The document should also specify the 'tasks authorised to be performed' during the deployment, which may be taken to refer to the category of team member, rather than to the operation as a whole.

Article 84 Civil liability of the members of the team 1. Without prejudice to Article 95, where members of the teams are operating in a host Member State, that Member State shall be liable in accordance with its national law for any damage caused by them during their operations. 2. Where such damage is caused by the gross negligence or wilful misconduct of the memben of the teams seconded or deployed by the Member States, the host Member State may request the home Member State to reimburse it for any sums that the host Member State has paid to the injured parties or persons entitled to receive such sums on behalf of the injured parties. Where such damage is caused by gross negligence or wilful misconduct by the statutory staff, the host Member State may request the Agency to reimburse it for any sums that the host Member State has paid to the injured parties or persons entitled to receive such sums on behalf of the injured parties. This shall be without prejudice to any action before the Court of Justice of the European Union (the 'Court of Justice') against the Agency in accordance with Article 98. 3. Without prejudice to the exercise of its rights vis-a-vis third parties, each Member State shall waive all its claims against the host Member State or any other Member State for any damage it has sustained, except in cases of gross negligence or wilful misconducL 4. Any dispute between Member States, or between a Member State and the Agency, relating to the application of paragraphs 2 and 3 of this Article which cannot be resolved by negotiations between them shall be submitted by them to the Court of Justice. 5. Without prejudice to the exercise of its rights vis-a-vis third parties, the Agency shall bear the costs of damage to its equipment during deployment, except in cases of gross negligence or wilful misconduct. Artide 83 says 'the official language', although in several Member States there is more than one. The Rrgulation does not contemplate the possibility that an official might have a different nationality to that of their home state. 119

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I. Commentary Article 84 concerns civil liability arising out of Frontex operations. The core principle, set out in Article 84( 1), is that, where a member of a team causes damage during a Frontex operation, liability falls on the host Member State, and not on the home Member State or Frontex. The principle is stated to refer to members of teams operating 'in' a host Member State. That leaves the legal position unresolved where they operate outside the host State's territory, for example in the context of arrangements with third countries, or on the high seas. 2 Liability under Article 84 is governed by the national law of the host state, That proposition will presumably cover the procedures to be followed, the types of loss which may be the basis of a claim, and the calculation of any financial award, where a claim is made out. Subject to that proposition, in principle, claims relating to fundamental rights breaches are covered by Article 84. 3 Where the loss to a third party is the result of gross negligence or wilful misconduct, the host Member State may request reimbursement from that officer's home state (for team members seconded or deployed) or from Frontex (statutory staff) (Article 84(2)). 4 Member States are required to waive any legal rights they may have towards one another concerning damage that a Member State itself has 'sustained'. 121 There is again in exception in cases of gross negligence or wilful misconduct (Article 84(3)). Frontex is to bear the costs of damage caused to its own equipment, except in cases of gross negligence or wilful misconduct (Article 84(5)). As this last clause is 'without prejudice to the exercise of its rights vis-a-vis third parties', its effect is to exclude possible claims against host or other Member States. Disputes concerning these prindples between Member States, or between a Member State and Frontex, may be referred to the Court of Justice (Article 84(4)).

Artide85 Criminal liability of the members of the teams Without prejudice to Article 9S, during a joint operation, pilot project, migration management support team deployment, rapid border intervention, return operation or return intervention, memben of the teams in the taritory of the host Member State, including statutory staff, shall be treated in the same way as officials of the host Member State with regard to any aiminal offences that might be committed against them or by them.

I. Commentary 1

Article 85 provides that the criminal law of a host Member State applies fully to the members of Frontex teams. This is the case both for offences they may commit, and for offences potentially committed against them. The reference to Article 95 is to the Staff Regulations governing the position of Agency statutory staff (above, Article 2 MN 4), and leaves open the possibility of sanctions within the employment relationship arising out of the same actions. "'This is stated to be 'without prejudice to the exercise of [a State's] rights vis-a-vis third parties'.

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SECTION 2 Processing of personal data by the European Border and Coast Guard Article 86 General rules on processing of personal data by the Agency [ ... ]

Article 87 Purposes of processing of personal data

... ]

[

Article 88 Processing of personal data collected during joint operations, return operations, return interventions, pilot projects, rapid border interventions, and migration management support team deployments

...

[ )

Article 89 Processing of personal data in the framework of EUROSUR [

... ) Article 90 Processing of operational personal data

[

... ) Article 91 Data retention

[

... ). Article 92 Security rules on the protection of classified information and sensitive non-classified information

[

... ]

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SECTION 3 General framework and organisation of the Agency

Artide93 Legal status and location I. The Agency shall be a body of the Union. It shall have legal personality. 2. In each of the Member States, the Agency shall enjoy the most extensive legal capacity accorded to legal persons under their laws. It may, in particular, acquire or dispose of movable and immovable property and may be party to legal proceedings. 3. The Agency shall be independent in implementing its technical and operational mandate. 4. The Agency shall be represented by its executive director. 5. The seat of the Agency shall be Warsaw, Poland

I. Commentary The provisions concerning Frontex's legal status and location, now in Article 93, have remained largely unchanged since the 2004 Regulation. 122 Initially, its seat was left to be decided by unanimity on the Council of Ministers, and Warsaw was formally designated on 26 April 2005. 123 2 In the light of debates concerning the accountability of the Agency, the provision in Article 93(3) for its independence 'in implementing its technical and operational mandate' is significant. This provision gives a high degree of autonomy to the management board - which is dominated by the Member States (see below, Article 101) - and to the executive director. In particular, it rules out the possibility of either positive or negative instructions emanating from the Commission, Council of Ministers or European Parliament.

Article 94

Headquarters agreement [

... ) Article 95

(

... )

Staff

122 Compare former Frontex Regulation (EC) 2007/2004, Article 15 and former Frontex Regulation (EU) 2016/1624, Article 56 with the current text. 1H Council Decision 2005/358/EC (OJ L 114, 4.5.2005), p. 13.

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Artide96 Privileges and immunities [

... ) Article 97 Liability

I. Without prejudice to Articles 84 and 85, the Agency shall be liable for any activities it has undertaken in accordance with this Regulation. 2. The contractual liability of the Agency shall be governed by the law applicable to the contnct in question. 3. The Court of Justice shall have jurisdiction to give judgment pursuant to any arbitration clause contained in a contract concluded by the Agency. 4. In the case of non-contractual liability, the Agency shall, in accordance with the general principles common to the laws of the Member States, make good any damage caused by its departments or by its staff in the performance of their duties, including those related to the use of executive powers. 5. The Court of Justice shall have jurisdiction in disputes relating to compensation for the damage referred to in paragraph 4. 6. The personal liability of statutory staff towards the Agency shall be governed by the provisions laid down in the Staff Regulations and Conditions of Employment applicable to them.

I. Commentary Article 97 provides in a straightforward manner for the contractual and noncontractual liability of the Agency, and for the personal liability of statutory staff to the Agency. The provision for non-contractual liability could in principle be used for claims relating to fundamental rights against the Agency or its officials, which would be brought to the Court of Justice under Article 340 TFEU. 124

Article 98 Actions before the Court of Justice [

... ] Artide99 Administrative and management structure of the Agency

[... )

,i,

On the possibility of recourse to Article 340, see generally, Fink, The Action for Damages. Article 340 TFEU is specifically mentioned in Article 98 of the Regulation concerning 'Actions before the Court of Justice' (not discussed in this chapter).

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Article 100 Functions of the management board I. The management board shall be responsible for taking the strategic decisions of the Agency in accordance with this Regulation. 2. The management board shall: (a) appoint the executive director on the basis of a proposal from the Commission in accordance with Article 107; (b) appoint the deputy executive directors on the basis of a proposal from the Commission in accordance with Article 107; (c) adopt decisions on establishing antenna offices or prolonging the duration of their operation in accordance with Article 60(5) by a majority of two thirds of the members with a right to vote; (d) adopt decisions on conducting the vulnerability assessment in accordance with Article 32(1) and (10), with the decisions setting out measures adopted under Article 32(10) being passed by a majority of two thirds of the members with a right to vote; (e) adopt decisions on the lists of mandatory information and data to be exchanged with the Agency by the national authorities responsible for border management, including coast guards to the extent that they carry out border control tasks, as well as the national authorities responsible for return, lo enable the Agency to perform its tasks. without prejudice to obligations established by this Regulation, in particular by Articles 49 and 86 to 89; (0 adopt decisions on the establishment of a common integrated risk analysis model in accordance with Article 29( l); (g) adopt decisions on the nature and terms of the deployment of liaison officers in Member States in accordance with Article 31 (2); (h) adopt a technical and operational strategy for European integrated border management in accordance with Article 8(5); (i) adopt decisions on the profiles and the numbers of operational staff for the management of borders and migration within the standing corps, in accordance with Article 54(4); (j) adopt the Agency's annual activity report for the previous year and transmit it, by I July of each year at the latest, lo the European Parliament, to the Council, to the Commission and to the Court of Auditors; (k) before 30 November of each year, and after duly taking into account the opinion of the Commission, adopt, by a majority of two thirds of the members with a right to vote, a single programming document containing, inter alia, the Agency's multiannual programming and its work programme for the following year and forward it to the European Parliament, to the Council and to the Commission; (I) establish procedures for the executive director to take decisions relating to the technical and operational tasks of the Agency; (m) adopt, by a majority of two thirds of the members with a right to vote, the annual budget of the Agency and exercise other functions in respect of the Agency's budget pursuant to Section 4 of this Chapter; (n) exercise disciplinary authority over the executive director and, in consultation with the executive director, over the deputy executive directors; (o) establish its rules of procedure; 358

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(p) establish the organisational structure of the Agency and adopt the Agency's staff policy; (q) adopt an anti-fraud strategy that is proportionate to the risk of fraud, taking into account the costs and benefits of the measures to be implemented; (r) adopt internal rules for the prevention and management of conflicts of interest in respect of its members; (s) exercise, in accordance with paragraph 8, with respect to statutory staff, the powers conferred by the Staff Regulations on the Appointing Authority and by the Conditions of Employment on the Authority Empowered to Conclude a Contract of Employment (the 'appointing-authority powers'); (t) adopt implementing rules for giving effect to the Staff Regulations and the Conditions of Employment in accordance with Article 110(2) of the Staff Regulations; (u) ensure adequate follow-up to findings and recommendations stemming from the internal or external audit reports and evaluations, as well as from investigations of the European Anti-Fraud Office (OLAF); (v) adopt and regularly update the communication and dissemination plans referred to in the second subparagraph of Article 10(2); (w) appoint an accounting officer, subject to the Staff Regulations and the Conditions of Employment, who shall be completely independent in the performance of his or her duties; (x) decide on a common vulnerability assessment methodology, including the objective criteria against which the Agency shall carry out the vulnerability assessment, the frequency of such assessments and how consecutive vulnerability assessments are to be carried out; (y) decide on enhanced assessment and monitoring of a Member State as referred to in Article 32(2); (z) appoint the fundamental rights officer and a deputy fundamental rights officer in accordance with Article 109; (aa) establish special rules in order to guarantee the independence of lhe fundamental rights officer in the performance of his or her duties; (ab) approve the working arrangements with third countries; (ac) subject to the prior approval of the Commission, adopt the security rules of lhe Agency on protecting EUCI and sensitive non-classified information as referred to in Article 92; (ad) appoint a security officer, subject to the Staff Regulations and the Conditions of Employment, who shall be responsible for the security within the Agency, including for the protection of classified information and sensitive non-classified information; (ae) decide on any other matter where provided for in this Regulation. The annual activity report referred to in point 0) shall be made public. 3. Proposals for decisions of the management board, as referred to in paragraph 2, on specific activities of the Agency to be carried out at, or in the immediate vicinity of, the external borders of any particular Member State or on working arrangements with third countries as referred to in Article 73(4) shall require a vote in favour of their adoption by the member of the management board representing that particular Member State or lhe Member State neighbouring that third country, respectively. 4. The management board may advise the executive director on any matter related to the development of operational management of the external borders and training, including activities related to research. Ryan

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Art. 100

5. Should Ireland or the United Kingdom request to participate in specific activities, the management board shall decide thereon. The management board shall take its decisions on a case-by-case basis. In its decisions, the management board shall consider whether the participation of Ireland or the United Kingdom contributes to the achievement of the activity in question. The decisions shall set out the financial contribution of Ireland or the United Kingdom to the activity for which the request for participation has been made. 6. The management board shall forward annually to the Euro~ Parliament and to the Council ('the budgetary authority') any information relevant to the outcome of the evaluation procedures conducted by the Agency. 7. The management board may establish an executive board composed of up to four representatives of the management board. including its chairperson; and a representative of the Commission, to assist it and the executive director with regard to the preparation of the decisions, programmes and activities to be adopted by the management board and to take certain provisional, urgent decisions on behalf of the management board when necessary. The executive board shall not take decisions that must be passed by a majority of two thirds of the management board. The management board may delegate certain clearly defined tasks to the executive board, in particular where this improves the efficiency of the Agency. It may not delegate to the executive board tasks related to decisions that must be passed by a majority of two thirds of the management board. 8. The management board shall adopt, in accordance with Article 110 of the Staff Regulations, a decision based on Article 2( I) of the Staff Regulations and on Article 6 of the Conditions of Employment, delegating relevant appointing-authority powen to the executive director and setting out the conditions under which this delegation of powen can be suspended. The executive director shall be authorised to sub-delegate those powen. Where exceptional circumstances so require, the management board may by way of a decision temporarily suspend the delegation of the appointing-authority powen to the executive director and those sub-delegated by the latter. It may then exercise them itself or delegate them to one of its members or to a statutory staff member other than the executive director.

I. Commentary The role and powers of the Frontex management board are set out in Article I00. Its role is to be 'responsible for taking the strategic decisions of the Agency' (Article I 00 (I)). Its main powers are listed in Article 100(2). Among those, its strategic powers include the adoption of a technical and operational strategy for European integrated border management, and a multi-annual programming document (points (h) and (k)). It is also responsible for the adoption of Frontex's annual activity report, for the adoption of Frontex's annual budget, and for Frontex's staffing policy (points (j), (m) and (p)). The management board may also advise the executive director on any matter related to the development of external border operations, and on research and training (Article 100(4)). 2 Article 100 covers the relationship between the management board and the executive director and their deputies. The management board may exercise disciplinary authority over the executive director and - in consultation with the executive director the deputy executive directors (Article I00(2)(n)). Powers of appointment and dismissal are covered below, in Article 107. 360

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The default voting rule is that the management board takes any decisions by an 3 absolute majority of its voting members (Article 105(1)). Several decisions referred lo in Article 100(2) require a two-thirds majority: the establishment of antenna offices in third countries (see Article 60, not discussed in this chapter); the imposition of measures upon a Member State after a vulnerability assessment (see above Article 32(10)); the adoption of programming documents; and, the adoption of the annual budget (points (c), (d), (e) and (m)). The position of individual Member State in respect of operations is protected by 4 Article 100(3). It requires that a decision to approve activities 'at, or in the immediate vicinity of a Member State's external border requires that state's representative on the management board to vote in favour. A positive vote by the representative of a Member State which neighbours a third country is required in respect of working arrangements with that country (see above, Article 73(4)). This is distinct from, though related to, the requirement for neighbouring and bordering Member States to agree to operational plans with third countries (above, Article 74 MN 3).

Article 101 Composition of the management board I. Without prejudice to paragraph 3, the management board shall be composed of one representative of each Member State and two representatives of the Commission, each with a right to vote. To this effect, each Member State shall appoint a member of the management board as well as an alternate who will represent the member in his or her absence. The Commission shall appoint two members and two alternates. The duration of the terms of office shall be four years. The terms of office shall be extendable. 2. The management board members shall be appointed on the basis of the degree of their relevant high-level experience, their expertise in the field of operational cooperation on border management and return, and their relevant managerial, administrative and budgetary skills. Member States and the Commission shall aim to achieve a gender-balanced representation on the management board. 3. Countries associated with the implementation, application and development of the Schengen acquis shall participate in the Agency. They shall each have one representative and one alternate on the management board. The arrangements developed under the relevant provisions of their association agreements that specify the nature and extent of, and the detailed rules for, the participation by those countries in the work of the Agency, induding provisions on financial contributions and staff, shall apply.

I. Commentary Article 101(1) provides for the composition of the management board. It is made up of one representative of each participating Member State, together with two Commission representatives. Non-EU associated states - i.e. Iceland, Liechtenstein, Norway and Switzerland - have a member on the board (Article 101(3)). As regards eligibility, members of the management board should have a high level 2 of experience and expertise in relation to operational cooperation in border management (Article 101(2)). It is also provided that Member States and the Commission 'shall aim to achieve a gender-balanced representation' on the management board, though no means are indicated for achieving that. Ryan

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Art. 102

Article 102

Multiannual programming and annual work programmes. ( ... )

Article 103

Chair of the management board [

... ) Article 104

Meetings of the management board I. Meetings of the management board shall be convened by its chairperson. 2. The executive director shall take part in the deliberations without the right to vote. 3. The management board shall hold at least two ordinary meetings a year. In addition, it shall meet at the initiative of the chairperson, at the request of the Commission, or at the request of at least one third of the members of the management board. Where necessary, the management board may hold joint meetings with the management boards of EASO and Europol 4. Ireland shall be invited to attend the meetings of the management board. 5. The United Kingdom shall be invited to attend meetings of the management board that take place before the day on which the Treaties cease to apply to the United Kingdom pursuant to Article 50(3) TEU. 6. Representatives of EASO and Europol shall be invited to attend the meetings of the management board. A representative of FRA shall be invited to attend meetings of the management board where points relevant to the protection of fundamental rights are on the agenda. 7. The chairperson of the management board may also invite an expert of the European Parliament to attend the meetings of the management board. The management board may also invite representatives of other relevant Union institutions, bodies, offices and agencies. The management board may invite, in accordance with its rules of procedure, any other person whose opinion may be of interest to attend its meetings as an observer. 8. The members of the management board may, subject to the provisions of its rules of procedure, be assisted by advisers or experts. 9. The secretariat for the management board shall be provided by the Agency.

I. Commentary Article I04, which governs the meetings of the management board, makes provision for attendance by other individuals and representatives, without a vote. There are firstly a number of obligatory provisions: the executive director shall take part in the deliberations; Ireland shall be invited to attend; representatives of EASO and Europol shall be invited to attend; and, a representative of the Fundamental Rights Agency shall

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be invited to attend meetings where 'points relevant to the protection of fundamental rights are on the agenda'. 125 Article 104(7) adds further optional cases: the chairperson may invite an expert of the European Parliament to attend meetings; the management board may invite representatives of other EU bodies; and, it may invite 'any other person whose opinion may be of interest' to attend as an observer. 126

Article 105 Voting [

... ] Article 106 Functions and powers of the executive director

I. The Agency shall be managed by its executive director, who shall be completely independent in the performance of his or her duties. Without prejudice to the respective competencies of the Union institutions and the management board, the executive director shall neither seek nor take instructions from any government or from any other body. 2. The European Parliament or the Council may invite the executive director to report on the carrying out of his or her tasks. This includes reporting on the activities of the Agency, the implementation and monitoring of the fundamental rights strategy, the annual activity report of the Agency for the previous year, the work programme for the following year and the Agency's multiannual programming and any other matter related to the activities of the Agency. The executive director shall also make a statement before the European Parliament, if requested, and shall answer in writing any question put forward by a Member of the European Parliament within 15 calendar days from receipt of such question. The executive director shall report regularly to the appropriate bodies and committees of the European Parliament. 3. Except where specific deadlines are provided for in this Regulation, the executive director shall ensure that reports are transmitted to the European Parliament, lo the Council and to the Commission as soon as possible, and in any event within six months of the end of the reporting period, unless the executive director duly justifies a delay in writing. 4. The executive director shall be responsible for the preparation and implementation of the strategic decisions taken by the management board and for the taking of decisions related lo the operational activities of the Agency in accordance with this Regulation. The executive director shall have the following functions and powers: (a) to propose, prepare and implement the strategic decisions and programmes and

activities adopted by the management board within the limits set out in this Regulation, its implementing rules and any applicable law; 125 According to the management board minutes, a representative of the FRA attended four of six meetings held in 2020. 0 " Ac.ording to the management board minutes, a representative of the European Parliament staff attended three of six meetings held in 2020; a representative of EU-LISA (which manages the EU immigration databases) attended three meetings; and the two co-chairs of the Frontex Fundamental Rights Consultative forum (see below, Article 108) attended one meeting.

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(b) to take all necessary steps, including the adoption of internal administrative instructions and the publication of notices, to ensure the day-to-day administration and functioning of the Agency in accordance with this Regulation; (c) to prepare each year the draft single programming document and to submit it to the management board for endorsement before that draft is sent to the European Parliament, to the Council and to the Commission by 31 January; (d) to prepare each year the annual activity report on the Agency's activities and submit it to the management board; (e) to draw up a draft statement of estimates of the revenues and expenditure of the Agency as part of the single prognmming document punuant to Article 115 (3), and implement the budget pursuant to Article 116(1); (0 to delegate his or her powen to other statutory staff members subject to rules to be adopted in accordance with point (o) of Article 100(2); (g) to adopt a recommendation on measures in accordance with Article 32(7), including decisions proposing that Member States initiate and carry out joint operations, rapid border interventions or other actions referred to in Article 36(2); (h) to evaluate, approve and coordinate proposals made by Member States for joint operations or rapid border interventions in accordance with Article 37(3); (i) to evaluate, approve and coordinate requests made by Member States for return operations and return interventions in accordance with Articles SO and 53; 0) to ensure the implementation of the operational plans referred to in Article 38, Article 42 and Article 53(3); (k) to ensure the implementation of the Council decision referred to in Article 42( I); 0) to withdraw financing of activities in accordance with Article 46; (m) to assess, prior to any operational activity of the Agency, whether there are violations of fundamental rights or international protection obligations that are of a serious nature or are likely to persist in accordance with Article 46(4) and (5); (n) to evaluate the results of activities in accordance with Article 47; (o) to identify the minimum number of items of technical equipment required to meet the Agency's needs, in particular as regards carrying out joint operations, migration management support team deployments, rapid border interventions, return operations and return interventions, in accordance with Article 64(6); (p) to propose the establishment of antenna offices or the prolongation of the duration of their operation in accordance with Article 60(5); (q) to appoint the heads of the antenna offices in accordance with Article 60(4); (r) to prepare an action plan following up on the conclusions of internal or external audit reports and evaluations, as well as on investigations by OLAF, and to report on progress to the Commission twice a year and to the management board on a regular basis; (s) to protect the financial interests of the Union by applying preventive measures against fraud, corruption and any other illegal activities by means of effective checks and, if irregularities are detected, by recovering amounts that were wrongly paid and, where appropriate, imposing effective, proportionate and dissuasive administrative and financial penalties; (l) to prepare an anti-fraud strategy for the Agency and present it to the management board for approval. 5. The executive director shall be accountable for his or her activities to the management board. 6. The executive director shall be the legal representative of the Agency.

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I. Commentary Article 106 sets out the functions and powers of the Frontex executive director. In broad terms, the executive director is responsible for the preparation and implementation of strategic decisions taken by the management board, and for taking decisions on Frontex's operational activities (Article 106(4)). The executive director is independent, and may not take instructions from a government or any other body (Article 106(1)). They are accountable for their activities to the management board, and by implication no other body (Article 106(5)). They may be invited to report to the European Parliament and Council of Ministers, on the terms set out in Article 106(3) and (4) (see above, Article 6 MN 2).

Article 107 Appointment of the executive director and the deputy executive directors I. The Commission shall propose at least three candidates for the post of executive director and for the posts of each of the deputy executive directors on the basis of a list, following the publication of the post in the Official Journal of the European Union and, as appropriate, other press or internet sites. 2. On the basis of a proposal from the Commission, as provided for in pangnpb 1, the management board shall appoint the executive director on the grounds of merit and documented high-level administrative and management skills, including relevant senior professional experience in the field of management of the external borders and return. Before appointment, the candidates proposed by the Commission shall be invited to make a statement before the competent committee or committees of the European Parliament and answer questions put by its or their members. Following such statements, the European Parliament shall adopt an opinion setting out its views and may indicate a preferred candidate. The management board shall appoint the executive director taking those views into account. The management board shall take its decision by a majority of two thirds of the members with a right to vote. If the management board takes a decision to appoint a candidate other than the candidate whom the European Parliament indicated as its preferred candidate, the management board shall inform the European Parliament and the Council in writing of the manner in which the opinion of the European Parliament was taken into accounL The power to dismiss the executive director shall lie with the management board, acting on a proposal from the Commission. 3. The executive director shall be assisted by three deputy executive directors. Each deputy e:ucutive director shall be assigned a specific area of responsibility. If the executive director is absent or indisposed, one of the deputy executive directors shall take his or her place. 4. On the basis of a proposal from the Commission, as provided for in paragraph 1, the management board shall appoint the deputy executive directors on the grounds of merit and appropriate administrative and management skills, including relevant professional experience in the field of management of the Ryan

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101

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external borden and return. The executive director shall be involved in the selection process. The management board shall take its decision by a majority of two thirds of the members with a right to vote. The management board shall have the power to dismiss the deputy e:tecutive directors in accordance with the procedure set out in the first subparagraph. 5. The term of office of the executive director shall be five years. By the end of that period, the Commission shall undertake an assessment that takes into account an evaluation of the executive director's performance and the Agency's future tasks and challenges. 6. The management board, acting on a proposal from the Commission that takes into account the assessment referred to in paragraph 5, may extend the term of office of the executive director once for another period of up to five yean. 7. The term of office of the deputy executive directors shall be five yean. The management board, acting on a proposal from the Commission, may extend that term once for another period of up to five years. 8. The executive director and the deputy executive directors shall be engaged as temporary agents of the Agency under point (a) of Article 2 of the Conditions of EmploymmL

I. Commentary Article 107 is concerned with the appointment, term of office and dismissal of the executive director and three deputy executive directors. In each case, the process of appointment starts with the publication of the posts by the Commission, followed by its proposal of at least three candidates (Article 107(1 )). 2 Article 107(2) sets out the process for appoinbnent of the executive director. The candidates proposed by the Commission are invited to make a statement to the relevant committee(s) of the European Parliament, and to answer questions put by the members of the committee(s). The European Parliament as a body adopts an opinion, and may indicate a preferred candidate (Article 107(2)). The appointment decision is taken by the management board, acting by two-thirds of its voting members. If the management board decides to appoint a candidate other than a candidate indicated by the European Parliament, it must explain writing to the European Parliament and the Council how the European Parliament's opinion was taken into account. 3 The term of office of the executive director is five years, renewable once (Article 107(5) and (6)). The management board has the power to dismi" the executive director on a proposal by the Commission (Article 107(2)). As no special majority is specified, it appears that such a decision may be taken by an absolute majority of the management board members. 4 The appointment of the three deputy executive directors is decided upon by the management board, acting by a vote of two-thirds of its voting members, with the executive director required to be 'involved in the selection process' (Article 107(4), first sub-paragraph). The term of office is five years, renewable once (Article 107(7)). The management board has the power to dismiss the deputy executive directors (Article 107(4), second sub-paragraph). As the power is to be exercised 'in accordance with the procedure set out in the first subparagraph', it appears that dismissal is to be exercised on a proposal by the Commission, by a two-thirds majority of the management board, and with the involvement of the executive director. I

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Article 108 Consultative forum I. A consultative forum shall be established by the Agency to assist it by providing independent advice in fundamental rights matters. The executive director and the management board, in coordination with the fundamental rights officer, may consult the consultative forum on any matter related to fundamental rights. 2. The Agency shall invite EASO, FRA, the United Nations High Commissioner for Refugees and other relevant organisations to participate in the consultative forum. On the basis of a proposal from the fundamental rights officer that was made after consulting the executive director, the management board shall decide on the composition of the consultative forum and the terms of the transmission of information to the consultative forum. The consultative forum shall, after consulting the management board and the executive director, define its working methods and set up its work programme. 3. The consultative forum shall be consulted on the further development and implementation of the fundamental rights strategy, on the functioning of the complaints mechanism, on codes of conduct and on the common core curricula. The Agency shall inform the consultative forum of the follow-up to its recommendations. 4. The consultative forum shall prepare an annual report of its activities. That report shall be made publicly available. 5. Without prejudice to the tasks of the fundamental rights officer, the consultative forum shall be provided with effective access in a timely and effective manner to all information concerning the respect for fundamental rights, including by carrying out on-the-spot visits to joint operations or rapid border interventions subject to the agreement of the host Member State or the third country, as applicable, to hotspot areas and to return operations and return interventions, including in third countries. Where the host Member State does not agree to an on-the-spot visit by the consultative forum to a joint operation or to a rapid border intervention carried out on its territory, it shall provide the Agency with duly justified reasons in writing.

I. Commentary Article 108 contains the provisions governing the consultative forum, which Frontex is required to establish in order to provide it with independent advice on fundamental rights ·matters. The consultative forum was one of the fundamental rights-related innovations made in 2011 (see above, Article 1 MN 11). 127 Most of the current provisions date from a separate provision concerning the consultative forum included in the 20 l 6 Regulation. 128 Under Article 108(2), Frontex is required to invite EASO. the EU Fundamental 2 Rights Agency, the UNHCR and 'other relevant organisations' to participate in the consultative forum. The decision on its actual composition is taken by the management i,; Fonner Frontex Regulation (EC) 2007/2004, as amended by Regulation (EU) :-.lo 1168/2011, Article 26a(2). 12 • Fonner Frontex Regulation (EU) 2016/1624, Anicle 70.

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board, on a proposal by the executive director. For the period January 2020-December 2022, four further international organisations and six non-governmental organisations participate in the consultative forum. 129 3 Under Article 108(3), the Agency is obliged to consult the consultative forum on the development and implementation of the fundamental rights strategy (above, Article 80), on the functioning of the complaints mechanism (below, Article 111), on codes of conduct (above, Article 81), and on the common core curricula for training of national officials (above, Article 62(6)). In addition, the executive director and management board, in co-ordination with the Frontex fundamental rights officer, may consult the consultative forum on any matter related to fundamental rights (Article 108(1)). 4 The consultative forum defines its working methods and work programme, after consulting the management board and the executive director (108(2)). It is to be provided with 'effective' and 'timely' access to 'all information concerning the respect for fundamental rights (108(5)). Provision is made for it to carry out on-the-spot visits to Frontex border operations, to hotspot areas and to return operations and return interventions, including in third countries (108(5)). In the case of visits to border operations (only), it is stated that the agreement of the host Member State or the third country is required.

Article 109 Fundamental rights officer 1. A fundamental rights officer shall be appointed by the management board on the basis of a list of three candidates, after consultation with the consultative forum. The fundamental rights officer shall have the necessary qualifications, expert knowledge and professional experience in the field of fundamental rights. 2. The fundamental rights officer shall perform the following tasks: (a) contributing to the Agency's fundamental rights strategy and the corresponding action plan, including by issuing recommendations for improving them; (b) monitoring the Agency's compliance with fundamental rights, including by conducting investigations into any of its activities; (c) promoting the Agency's respect of fundamental rights; (d) advising the Agency where he or she deems it necessary or where requested on any activity of the Agency without delaying those activities; (e) providing opinions on the operational plans drawn up for the operational activities of the Agency, on pilot projects and on technical assistance projects in third countries; (0 providing opinions on working arrangements; (g) carrying out on-the-spot visits to any joint operation, rapid border intervention, pilot project, migration management support team deployment, return operation or return intervention, including in third countries; (h) providing the secretariat of the consultative forum; 12 • Fronlex Consultative Forwn on Fundamental Rights, Programme of Work 2021, p. 2. The international organisations are the Office of the UN High Commissioner for Human Rights, the Council of Europe, the International Organisation for Migration, and the Organisation for Security and Cooperation in Europe. The non-governmental organisations are Amnesty International, the Churches' Commission for Migrants in Europe, the International Commission of Jurists, the Jesuit Refugee Service, the Red Cross and Save the Children.

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(i) informing the executive director about possible violations of fundamental rights during activities of the Agency; (j) selecting and managing the fundamental rights monitors; (k) performing any other tasks, where provided for by this Regulation. The secretariat referred to in point (h) of the first subparagraph shall receive instructions directly from the consultative forum. 3. For the purposes of point 0) of the first subparagraph of paragraph 2, the fundamental rights officer shall, in particular: (a) appoint the fundamental rights monitors; (b) assign fundamental rights monitors to operations and activities as provided for in Article 110(3); (c) nominate fundamental rights monitors as forced-return monitors for the pool referred to in Article 51; (d) ensure that fundamental rights monitors are adequately trained; (e) report to the executive director on possible violations of fundamental rights reported to him or her by the fundamental rights monitors as the fundamental rights officer deems necessary; The executive director shall reply to the fundamental rights officer as to how concerns regarding possible violations of fundamental rights as referred to in point (e) of the first subparagraph have been addressed. The fundamental rights officer may entrust any of the tasks provided for in points (a) to (i) and (k) of the first subparagraph of paragraph 2 to one of the fundamental rights monitors. 4. The management board shall lay down special rules applicable to the fundamental rights officer in order to guarantee that the fundamental rights officer and his or her staff are independent in the performance of their duties. The fundamental rights officer shall report directly to the management board and shall cooperate with the consultative forum. The management board shall ensure that action is taken with regard to recommendations of the fundamental rights officer. In addition, the fundamental rights officer shall publish annual reports on his or her activities and on the extent to which the activities of the Agency respect fundamental rights. Those reports shall include information on the complaints mechanism and the implementation of the fundamental rights strategy. 5. The Agency shall ensure that the fundamental rights officer is able to act autonomously and is able to be independent in the conduct of his or her duties. The fundamental rights officer shall have sufficient and adequate human and financial resources at his or her disposal necessary for the fulfilment of his or her tasks. The fundamental rights officer shall select his or her staff, and that staff shall only report to him or her. 6. The fundamental rights officer shall be assisted by a deputy fundamental rights officer.. The deputy fundamental rights officer shall be appointed by the management board from a list of at least three candidates presented by the fundamental rights officer. The deputy fundamental rights officer shall have the necessary qualifications and experience in the field of fundamental rights and shall be independent in the conduct of his or her duties. If the fundamental rights officer is absent or indisposed, the deputy fundamental rights officer shall assume the fundamental rights officer's duties and responsibilities. 7. The fundamental rights officer shall have access to all information concerning respect for fundamental rights in all the activities of the Agency.

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Article 109 makes prov1S1on for the Frontex fundamental rights officer. This position was one of the fundamental rights-related innovations made in 201 l (above, Article l MN 11)} 10 Although a separate article concerning the fundamental rights officer was included in the 2016 Regulation, most of the detail - including concerning their tasks and autonomy - was introduced in the 2019 version. 131 The fundamental rights officer is to have the necessary qualifications, knowledge and professional experience in the field of fundamental rights. They are appointed by the management board, after consultation with the Consultative Forum, on the ~asis of a list of three candidates drawn up by the management board. The provisions of Frontex legislation concerning the tasks of the fundamental rights officer have evolved considerably over time. In 201 I, it was stated that they would report on a regular basis to the management board and the consultative forum. The 2016 Regulation retained that provision, with an obligation to 'co-operate' with the consultative forum, rather than to report to it. The 2016 Regulation added the specific tasks of contributing to the Agency's fundamental rights strategy, monitoring its compliance with fundamental rights, and promoting its respect of fundamental rights, and provided for the fundamental rights officer to be consulted on operational plans. All of the 2016 provisions appear in the current version, with the modifications that contributing to the fundamental rights strategy includes issuing recommendations for improvement, and that 'monitoring ... compliance' includes conducting investigations into any Frontex activities. Moreover, new specific tasks were added, including advising Frontex on any activity; providing opinions on working arrangements with third countries; carrying out on-the-spot visits; informing the executive director of possible violations of fundamental rights during Frontex activities; and, managing the fundamental rights monitors (see below, Article 110). Prior to the 2019 Regulation, the fundamental rights officer was obliged to report to the management board about its activities and the complaints mechanism. A summary of that information was then included in Frontex's annual report.U 2 The 2019 Regulation introduced a new provision for the fundamental rights officer to publish their own annual reports concerning their own activities, and on the extent to which the activities of the Agency respect fundamental rights. Those reports are to include information on the complaints mechanism, and on the implementation of the fundamental rights strategy. The 2019 Regulation strengthened the provisions to guarantee the autonomous role of the fundamental rights officer. The 2011 and 2016 legislation had simply stated that the fundamental rights officer was 'independent in the performance of [their) duties'. The current Regulation adds that the Agency shall ensure that the fundamental rights officer is 'able to act autonomously' and has 'sufficient and adequate human and financial resources' at their disposal (Article 109(5)). The introduction in 2019 of provision for a deputy to be appointed (Article 109(6)), and for fundamental rights monitors (below, Article 110), are likely to enhance the effective capacity of the fundamental rights officer. LM> Former Frontex Regulation (EC) 2007/2004, as amended by Regulation (EU) So 1168/2011, Article 26a(3). 131 Former Frontex Regulation (EU) 2006/1624, Article 71. 132 See most recently, Frontex, Consolidated Annual Activity Report: 2019, p. 72-77.

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Article 110 Fundamental rights monitors I. Fundamental rights monitors, employed as statutory staff, shall constantly assess the fundamental rights compliance of operational activities, provide advice and assistance in that regard and contribute to the promotion of fundamental rights as part of European integrated border management. 2. Fundamental rights monitors shall have the following tasks: (a) monitoring compliance with fundamental rights and providing advice and assistance on fundamental rights in the preparation, conduct and evaluation of the operational activities of the Agency which the fundamental rights officer has assigned to them to monitor; (b) acting as forced-return monitors; (c) contributing to the training activities of the Agency on fundamental rights as provided for in Article 62, including by providing training on fundamental rights. For the purposes of point (a) of the first subparagraph, fundamental rights monitors shall, in particular: (a) follow the preparation of operational plans and report lo the fundamental rights officer to enable him or her to fulfil his or her tasks as provided for in point(e) of Article 109(2); (b) conduct visits, including long-term visits, where operational activities take place; (c) cooperate and liaise with the coordinating officer as provided for in Article 44 and provide advice and assistance to him or her; (d) inform the coordinating officer and report to the fundamental rights officer on any concerns related to possible violation of fundamental rights within the Agency's operational activities; and (e) contribute to the evaluation of activities as referred to in Article 47. 3. Without prejudice to paragraph 4, the fundamental rights officer shall assign at least one fundamental rights monitor to each operation. The fundamental rights officer may also decide to assign fundamental rights monitors to monitor any other operational activity he or she considers relevanL Fundamental rights monitors shall have access to all areas in which the operational activity of the Agency takes place and to all its documents relevant for the implementation of that activity. 4. Fundamental rights monitors may be nominated by the fundamental rights officer as forced-return monitors for the pool referred to in Article 5 I. Where fundamental rights monitors act as forced-return monitors, Article 50(5) and Article 51 shall apply, mutatis mutandis. 5. The fundamental rights officer shall appoint the fundamental rights monitors and they shall be under his or her hierarchical supervision. Fundamental rights monitors shall be independent in the performance of their duties. When present in an operational area, fundamental rights monitors shall wear insignia that clearly allow for their identification as fundamental rights monitors. 6. The Agency shall ensure that by 5 December 2020 at least 40 fundamental rights monitors are recruited by the Agency. The executive director shall assess on an annual basis whether the number of fundamental rights monitors needs to be increased in consultation with the fundamental rights officer. Following that assess-

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ment, the executive director shall, where necessary, propose an increase in the number of fundamental rights monitors to the management board for the following year depending on operational needs. 7. Following their recruitment, fundamental rights monitors shall· undergo enhanced fundamental rights training, taking into account previously acquired qualifications and professional experience in the relevant areas. Throughout their employment, the Agency shall ensure that fundamental rights monitors discharge their duties in accordance with the highest standards. Adequate training maps shall be designed for each fundamental rights monitor to ensure their continuous professional development to enable them to fulfil their role as fundamental rights monitors.

I. Commentary Fundamental rights monitors were an innovation in the 2019 legislation.13 3 At least one monitor is attached to each Frontex operation, and they may be assigned to other activities (Article 110(3)). They are appointed and managed by the Frontex fundamental rights officer, while being independent in the performance of their duties (Article 110(5)). A total of forty monitors are to be appointed (see Article 110(6)). 2 The core tasks of fundamental rights monitors are to monitor compliance with fundamental rights, and to provide advice and assistance on fundamental rights, in relation to the operational activity they have been assigned to monitor (Article l 10(2)(a)). The monitors are to follow the preparation of operational plans, and to report to the fundamental rights officer to assist with their input into these plans (above, Article 109(2)(e)). At the implementation stage, the monitors are to engage in visits to the sites of operational activities, and to advise and assist the coordinating officer (see above, Article 44). If they have concerns as to possible violations of fundamental rights within operational activities, they should inform the coordinating officer and report to the Frontex fundamental rights officer. Finally, they contribute to the evaluation of the activities in question. 3 Fundamental rights monitors are to have access to all areas in which Frontex activity takes place, and to all relevant documents concerning implementation (Article 110(4)). When present in an operational area, they are to wear insignia that clearly allow their identification (Article 110(5)). Fundamental rights monitors may be nominated to act as forced-return monitors (see above, Article SI). They may also be expected to contribute to Frontex training activities concerning fundamental rights (above, Article 62).

Article 111 Complaints mechanism I. The Agency shall, in cooperation with the fundamental rights officer, take the necessary measures to set up and further develop an independent and effective complaints mechanism in accordance with this Article to monitor and ensure respect for fundamental rights in all the activities of the Agency. 1H A separate article on the subject emerged in the 'trilogue" process, having not featured in COM (2018) 631 or in the amendments proposed by the Council of Ministers or the European Parliament's UBE committee.

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2. Any person who is directly affected by the actions or failure to act on the part of staff involved in a joint operation, pilot project, rapid bonier intervention, migration management support team deployment, return operation, return intervention or an operational activity of the Agency in a third country, and who considers himself or herself to have been the subject of a breach of his or her fundamental rights due to those actions or that failure to act, or any party representing such a person, may submit a complaint in writing to the Agency. 3. Only complaints that are substantiated and involve concrete fundamental rights violations shall be admissible. 4. The fundamental rights officer shall be responsible for handling complaints received by the Agency in accordance with the right to good administration. For that purpose, the fundamental rights officer shall review the admissibility of a complaint, register admissible complaints, forward all registered complaints to the executive director and forward complaints concerning members of the teams to the home Member State, including the relevant authority or body competent for fundamental rights in a Member State for further action in acconlance with their mandate. The fundamental rights officer shall also register and ensure the follow-up by the Agency or that Member State. 5. In accordance with the right to good administration, if a complaint is admissible, complainants shall be informed that the complaint has been registered, that an assessment has been initiated and that a response may be expected as soon as it becomes available. If a complaint is forwarded to national authorities or bodies, the complainant shall be provided with their contact details. If a complaint is declared inadmissible, the complainant shall be informed of the reasons and, if possible, provided with further options for addressing their concerns. The Agency shall provide for an appropriate procedure in cases where a complaint is declared inadmissible or unfounded. Any decision shall be in written form and reasoned. The fundamental rights officer shall reassess the complaint if the complainant submits new evidence in situations where the complaint has been declared inadmissible or unfounded. 6. In the case of a registered complaint concerning a staff member of the Agency, the fundamental rights officer shall recommend appropriate follow-up, including disciplinary measures, to the executive director and, where appropriate, referral for the initiation of dvil or criminal justice proceedings in acconlance with this Regulation and national law. The executive director shall ensure the appropriate follow-up and shall report back to the fundamental rights officer within a determined timeframe and, if necessary, at regular intervals thereafter, as to the findings, the implementation of disciplinary measures, and follow-up by the Agency in response to a complaint. If a complaint is related to data protection issues, the executive director shall consult the data protection officer of the Agency before taking a decision on the complaint. The fundamental rights officer and the data protection officer shall establish, in writing, a memorandum of understanding specifying their division of tasks and cooperation as regards complaints received. 7. In the case of a registered complaint concerning a member of the teams from a host Member State or from another participating Member State, including a seconded member of the teams or seconded national expert, the home Member State shall ensure appropriate follow-up, including disciplinary measures, referral for the initiation of civil or criminal justice proceedings as necessary, and other measures in accordance with national law. The relevant Member State shall report back to the

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fundamental rights officer within a determined time period as to the findings and follow-up to the complaint, and, if necessary, at regular intervals thereafter. The Agency shall follow up on the matter if no report is received from the relevant Member State. Where the relevant Member State. within the determined time period, does not report back or provides only an inconclusive response, the fundamental rights officer shall inform the executive director and the management board. 8. Where a member of the teams is found to have violated fundamental rights or international protection obligations, the Agency shall request that the Member State remove that member immediately from the activity of the Agency or the standing corps. 9. The fundamental rights officer shall include information on the complaints mechanism in his or her annual report, as referred to in Article 109(4), including specific references to the Agency's and Member States' findings and the follow-up to complaints. I 0. The fundamental rights officer shall, in accordance with paragraphs I to 9 and after consulting the consultative forum, draw up a standardised complaint form requiring detailed and specific information concerning the alleged breach of fundamental rights. The fundamental rights officer shall also draw up any further detailed rules as necessary. The fundamental rights officer shall submit that form and such further detailed rules to the executive director and to the management board. The Agency shall ensure that information about the possibility and procedure for making a complaint is readily available. including for vulnerable persons. The standardised complaint form shall be made available on the Agency's website and in hardcopy during all activities of the Agency in languages that third-country nationals understand or are reasonably believed to understand. The standardised complaint form shall be easily accessible. including on mobile devices. The Agency shall ensure that further guidance and assistance on the complaints procedure is provided to complainants. Complaints shall be considered by the fundamental rights officer even when they have not been submitted in the standardised complaint form. 11. Any personal data contained in a complaint shall be handled and processed by the Agency, including the fundamental rights officer, in accordance with Regulation (EU) 2018/1725 and by Member States in accordance with Regulation (EU) 2016/679 and Directive (EU) 2016/680. Where a complainant submits a complaint, that complainant shall be undentood to consent to the processing of his or her personal data by the Agency and the fundamental rights officer within the meaning of point (d) of Article 5(1) of Regulation (EU) 2018/1725. In order to safeguard the interests of the complainants, complaints shall be dealt with confidentially by the fundamental rights officer in accordance with national and Union law unless the complainant explicitly waives his or her right to confidentiality. When complainants waive their right to confidentiality, it shall be undentood that they consent to the fundamental rights officer or the Agency disclosing their identity to the competent authorities or bodies in relation to the matter under complaint, where necessary.

I. Commentary Article 111 provides for a complaints mechanism for persons who consider that their fundamental rights have been breached within a Frontex operation. The introduc374

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tion of a complaints mechanism, centred on the Frontex fundamental rights officer, had been recommended by the European Ombudsman in November 2013, and had been supported by the European Parliament in December 2015.' 34 These were the background to the Commission's proposal for a complaints mechanism, and its inclusion within the Frontex Regulation of 2016.m Adjustments made in the 2019 Regulation enhanced the role of the fundamental rights officer, including the power to make recommendations to the executive director in respect of statutory staff, and to monitor follow-up by both the executive director and home Member States (see below, MN 7 and 8). The complaints mechanism is essentially an administrative process, which is not intended to replace administrative or judicial remedies (see recital 104 to the Regulation). According to Article 111(4), the fundamental rights officer is responsible for handling complaints in accordance with the right of good administration. In practice, fundamental rights officer's core role is to register complaints and to forward them either to the Frontex executive director or to the relevant Member State, to be addressed by them. According to Article 111(2), the scope of the complaints mechanism covers any person who is directly affected by the actions or failure to act of 'staff involved in' a Frontex operation, and who considers that their fundamental rights have been breached 'due to' those actions or that failure to act. 136 The range of 'fundamental rights' at issue is not defined, but reference be made to recital 103 for a list of the main rights potentially at issue (see above, Article 2 MN 9). 137 There are difficult questions concerning the personnel who the subject of complaints through their involvement in an opention may be. The mechanism undoubtedly covers statutory staff who are members of the standing corps (see Article 2 MN 4). It could also be interpreted to include co-ordinating officers, forced-return monitors, and fundamental rights monitors (see above, Articles 44, 51 and 110). In respect of Member State officials, Article 111(7) implies that the mechanism relates only to 'members of the teams' (see above, Article 2 MN 5). As such, it does not apply to officials issuing instructions, either from a host state (above, Article 43), or potentially their home state. Nor does it apply to host state officials who are present in the same operational area, and/or engaged in the same activity, but in parallel to the Frontex operation. Under Article 111(2), the mechanism is concerned with the actions or omissions of individual officials within opentions. It does not therefore provide a route to complain about policy, strategic or operational choices made by the Agency and the member states. That limitation is reinforced by the requirement in Article 111 (3) that, in order to be admissible, a complaint must involve 'concrete' fundamental rights violations. As regards procedures. complaints may be made by a third party on behalf of an individual who falls within the scope set out above (Article 111(2)). us It also stated that 1 " European Ombudsman recommendation of 12 Sovember 2013 arising out of own-initiative inquiry O1/5/2012/BEH-MHZ; European Parliament resolution, Special repon of the European Ombudsman in own-initiative inquiry concerning Frontex, 2 December 2015, OJ 2017 C 399/2. "'Commission Proposal, COM(2015) 671, p. 7; former Frontex ~ation (EU) 2016/1624, Article 72. 136 Reference to omissions was added in 2019. 137 Frontex publishes its own list, as an Appendix to its 'Rules on the Complaints Mechanism', available at https://fronteLeuropa.eu/assets/Key_Documents/Complaints/ Appendix_ -_List_of_FR_in_Charter.pd( [last accessed 12 May 2021]. 1"' The Frontex Consultative Forum has criticised the lack of provision for anonymous complaints: see Annual Repon 2016, p. 21 and Annual Repon 2017, p. 22.

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a complaint is to be made in writing. Further details as regards complaints are provided in Article 111(10). The fundamental rights officer is to draw up a complaints form, and any further rules, which they submit to the executive director and management board 139 The Agency is to ensure that the complaint form is available on its website including for mobile devices - and in hardcopy during its activities, and in languages that third-country nationals understand or are reasonably believed to understand. Use of the complaints form is not obligatory, however, as the fundamental rights officer is to consider a complaint in any event. 7 Article 111(4) makes provision concerning the admissibility and regiatntion of complaints. In deciding on admissibility, the fundamental rights officer will presumably apply the requirement of an individual victim in Article 111(2), and the principle set out in Article 111(3) that complaints are admissible only if they are substantiated and involve 'concrete' fundamental rights violations. All complaints which are deemed admissible are registered, and are referred to the executive director. Those which concern members of teams seconded or deployed by a home Member State are sent to that state, including 'the relevant authority or body competent for fundamental rights'.1 40 Under Article 11 l(S), the individual is informed of the outcome of the admissibility stage in writing, and any decision must be 'reasoned'. The Agency is to provide 'an appropriate procedure' where a complaint is declared inadmissible, and the fundamental rights officer is to reassess the complaint if new evidence is submitted. 141 8 Article 111 (6) provides for registered complaints concerning Fronta staff. 142 Whereas in the 2016 Regulation the fundamental rights officer simply referred the complaint to the executive director, a change made in 2019 provides that they 'shall recommend appropriate follow-up', which may include disciplinary measures and referral for civil or criminal justice proceedings. The executive director 'shall ensure the appropriate follow-up', which may be taken to mean that it is the Agency which takes decisions concerning individuals. The executive director is to report back to the fundamental rights officer concerning findings and follow-up, within a 'determined timeframe' and then at 'regular intervals'. 143 9 Article 111 (7) contains the provisions on regiatered complaints concerning memben of teams who are officiab of Member States. In those cases, the fundamental rights officer transmits complaints to the home Member State concerned - which may be either the host state or a participating state - but there is no provision for a recommendation to be made. The home Member State is to 'ensure appropriate follow-up', potentially including disciplinary measures, referral for civil or criminal proceedings, and other measures in accordance with national law. The Member State is to report back to the fundamental rights officer concerning findings and follow-up, 139 The 'Rules on the Complaints Mechanism' were adopted by a decision of the executive director on 6 October 2016, and are published at: https://fronteuuropa.eu/assets/Key_Documents/Complaints/Anncx_l_· _Frontas_rules_on_the_complaints_mechanism.pdf [last accessed 12 May 2021]. 140 Rrad literally, Article 111(4) implies that all complaints concerning Member State officers should be sent to that state, including those deemed inadmissible and so not registered. As against that reading, the admissibility stage is presumably designed as a filter for Member State officers too, and Article 111 (7), which concerns transmission to Member States, refers only to 'registered' complaints. 141 These provisions concerning a procedure, and for reassessment, were added in 2019. They are also stated to apply where a complaint is deemed 'unfounded". It is unclear what that refers to, however, given that not being 'substantiated' is a ground of inadmissibility within Article 111. 141 As of early 2021, no complaints had been received in respect of Frontcx staff: see European Ombudsman, 'Report on the meeting of the European Ombudsman's inquiry team with FRO:-ITEX representatives' (document dated 23 March 2021 ), para 31. 143 The Frontex Consultative Forum has criticised the lack of provision for a maximum time-limit in the complaints mechanism: see its Annual Report 2016, p. 20 and Annual Report 2017, p. 22.

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within an unspecified 'determined time-period' and then at 'regular intervals'. If the Member State makes no report, it is stated that 'the Agency shall follow up on the matter', which presumably means taking it up with the State concemed.1 45 In addition, if the Member State does not report back within the time-period, or provides 'an inconclusive response', the fundamental rights officer shall inform the executive director and the management board. 146 Article 111(8) provides that, where a member of a team is found to have violated fundamental rights or international protection obligations, Frontex shall request that the Member State immediately remove that officer from Frontex activity. In the 2019 version of this provision, Frontex is obliged to make this request, whereas in the 2016 Regulation it merely had a power to do so. It must be considered anomalous that the Member State is not under an obligation to withdraw the officer concerned. Finally, Article 111 (9) makes provision for reporting on the complaints mechanism by the fundamental rights officer within their published annual report (above, Article 109(4)). The information in the report should include specific references to the findings and follow-up by the Agency or the Member State, as the case may be. This arrangement dates from the 2019 Regulation, and replaced the previous provision for the fundamental rights officer to report to the executive director and to the management board, and for Frontex to include information on the complaints mechanism in its annual report, without any requirement to give specific information. 147 Commentators have expressed concerns concerning the adequacy and effectiveness of the complaints mechanism. In part, these refer to the design of the mechanism as it stands, such as the lack of provision for anonymous complaints, the lack of detail concerning timescales, and the absence of an appeal against decision of the executive director in respect of statutory staff. 148 A further issue which may be highlighted is the lack of integration between the complaints mechanism and the Regulation's provisions on non-contractual liability (see above, Article 84 MN I and 2 and Article 97 MN l). If the host Member State is liable for damage to individuals under Article 84, why does the complaints mechanism focus on referral to the home state of state officials (which may not be the same) or to Frontex for its statutory staff? Should not the complaints mechanism make provision for informing the complainant in a concrete manner about possible avenues for civil remedies? A further set of criticisms concern the inherent limitations of the complaints mechanism. One weakness is that it is as an administrative process within Frontex, which lacks independence, and does not ensure a legal remedy for individuals. 149 Another is that it unsuited to providing a remedy in respect of fundamental rights breaches by home state officials outside of Frontex operations, though in parallel with them.1 50 144

Stt Frontex Consultative Forum, Annual Report 2016, p. 20 and Annual Report 2017, p. 22. The phrase 'follow up on the matter' cannot mean that the Agency is to deal with any complaint itself, as it has no disciplinary powers in relation to officers of Member States. 146 The two provisions in Article 111 (7) concerning consequences where there is either no report, or an inadequate one - the first dating from 2016, the other from 2019 - do not fit well together. It would be more logical if the fundamental rights officer referred either type of matter to the executive director and manqement board, who would then decide how to respond to the Member State concerned. 147 Fonner Frontex Regulation (EU) 2016/1624, Article 72(9). 141 Stt Jones/Kilpatrick/Gklaiti, Deportation Union: Rights. Accountability, and the EU's Push to lncrta.sed Forced Removals (Statewatch, 2020), p. 52-54. 149 See Guild, The Frontcx Push-Back Controversy. 150 For.example, see Complaints 2017-0007, 2017-0008 and 2017-0009, summarised in 'Complaints Mechanism: Fundamental Rights Officer Report: Reporting period 6 October 2016-31 December 2017', annexed to letter from Frontex to European Ombudsman, 29 January 2021, available at https://www. 144

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Language arrangements [... )

Article 114

Transparency and communication I. The Agency shall be subject to Regulation (EC) No 1049/2001 when handling applications for access to documents held by it. 2. The Agency shall communicate on matters falling within the scope of its tasks on its own initiative. It shall make public relevant information, including the annual activity report, the annual work programme, the code of conduct, strategic risk analyses, and comprehensive information on past and current joint operations, rapid border interventions, pilot projects, technical assistance projects with third counbies, migration managanent support team deployments, return operations or return interventions, including in third countries, and working arrangements, and shall ensure, without prejudice to Article 92, in particular that the public and any interested party are rapidly given objective, detailed, comprehensive, reliable and easily understandable information with regard to its work. It shall do so without revealing operational information which, if made public, would jeopardise attainment of the objectives of operations. 3. The management board shall lay down the practical arrangements for the application of paragraphs I and 2. 4. Any natural or legal person shall be entitled to address written correspondence to the Agency in any of the official languages of the Union. He or she shall have the right to receive an answer in the same language. 5. Decisions taken by the Agency pursuant to Article 8 of Regulation (EC) No 1049/2001 may give rise to a complaint being lodged with the European Ombudsman or to an action before the Court of Justice, under the conditions laid down in Articles 228 and 263 TFEU respectively.

I. Commentary Article 114(1) extends the arrangements for access to documents in Regulation (EC) No 1049/2001 to Frontex. By virtue of Article 114(5), complaints may be made to the European Ombudsman or the Court of Justice in respect of decisions of the Agency concerning requests for access to documents. ombudsman.europa.eu/en/correspondence/en/137728 [last accessed 12 May 20211. These complaints that Polish border guards had refused to allow applications for international protection were declared inadmissible, with the comment that 'In Frontex operational area, but no apparent deployed officers' presence or invoh·cment'. 378

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Art.117

Chp.6

There have been several examples of complaints to the European Ombudsman 2 relating to the process of access to Frontex documents. In 2019, the Ombudsman welcomed a Frontex decision to deliver requested documents electronically free of charge, and recommended that Frontex find a means to redact electronic documents that did not necessitate the use of paper copies. 151 In 2021, a complaint to the Ombudsman concerning the lack of a public register of documents led to a Frontex commitment to introduce one by 2022. 152 At the time of writing. a complaint concerning Frontex's use of an online portal to manage requests is ongoing. 153 Other complaints have concerned Frontex refusals to release documents relating to 3 specific opentions. In one case, Frontex's difficulty in correctly identifying serious incident reports in respect of operations in Bulgaria led the Ombudsman to a series recommendations concerning their recording and disclosure practices. 1S4 Complaints against unsuccessful requests for information about vessels deployed during Frontex operations in the Mediterranean have though been rejected, as both the European Ombudsman and the General Court have concluded that these refusals fall within the 'public security' exception in Article 4( l)(a) of Regulation I049/200 I. 155

SEcnON 4 Financial requirements

Article 115 Budget [

... ] Article 116 Implementation and control of the budget

[

... ] Article 117 Combating fraud

[... ] 151 European Ombudsman case 1808/2018/FP, decision of 7 May 2019, available at: hnps://www. ombucbman.europa.eu/en/decision/en/113546 [last accessed 12 May 2021 I. 152 European Ombudsman case 2273/2019/MIG, decision of 3 February 2021, available at: https://www. ombudsman.europa.eu/en/decision/en/137721 [last accessed 12 May 2021]. 151 European Ombudsman case 1261/2020/MAS, opened on 10 October 2020, details at: hnps://www. ombudsman.europa.eu/en/case/en/57481 [la.st accessed 12 May 2021]. 154 European Ombudsman case 1616/2016, decision of 17 November 2017, available at: hnps://www. ombudsman.europa.eu/en/solution/en/86210 [last accessed 12 May 20211. 155 European Ombudsman case 1767/2017/KM, decision of31 October 2017, available at: https://www. ombudsman.europa.eu/en/decision/en/85292; European Ombudsman case 132812017/EIS, decision of 23 November 2017, available at: https://www.ombudJman.europa.eu/en/decision/en/86680; European Ombudsman case 233/2021/OAM, decision of 30 March 2021, available at: hnps://www.ombudsman. europa.eu/en/case/en/58688 [last accessed 12 May 2021]; General Coun, lzuzquiza and Semsrott v. Franta, T-31/18, EU:T:2019:815.

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Frontex Regulation (EU) 2019/ /896

Art.118

Article 118 Prevention of conflicts of interest [

... ] Article 119 Administrative inquiries

[... ]

Article 120 Financial provision [

... ] Article 121 Evaluation

[... ]

CHAPTER V FINAL PROVISIONS Article 122 Committee procedure [ ... ]

Article 123 Repeal and transitional provisions [

... , Article 124 Entry into force and applicability

...

[ ]

380

Ryan

ANNEX VI

Chp. 6

ANNEX I Capacity of the standing corps per year and category in accordance with Article 54 [

... ]

ANNEX II Annual contributions to be provided by Member States to the standing corps through the long-term secondment of staff in accordance with Article 56 [

... )

ANNEX III Annual contributions to be provided by Member States to the standing corps for short-term deployments of staff in accordance with Article 57 [... )

ANNEXIV Contributions to be provided by Member States to the standing corps through the reserve for rapid reaction in accordance with Article 58 [

... )

ANNEX V Rules on the use of force, including training and the supply, control and use of service weapons and non-lethal equipment, applicable to statutory staff deployed as members of the teams [

... ) ANNEX VI Correlation Table

[

... ]

Ryan

381

PARTC SECONDARY LEGISLATION ON IMMIGRATION

Chapter 7. Legal Framework for EU Immigration Policy Select Blbllopapby: Azoulai/de Vries (eds), EU Migration Law (OUP, 2014); Bast/von Harbou/Wessels, Human Rights Challenges to European Migration Policy (REMAP), 29 October 2020; Berneri, Family Reunification in the EU (Hart, 2017); Billet, 'EC Readmission Agreements', EJML 12 (2010), p. 45-79; Boeles/den Heijer/1..odder/Wouters, European Migration Law, 2nd edn (lntersentia, 2014); Coleman, European Readmission Policy (Martinus Nijhoff, 2008); Bribosia, 'Les Politiques d'integration de !'Union europeenne et des ttats Membres a l'epreuve du principe de non-discrimination', in: Pascouau/Strik (eds), Which Integration Policies for Migrants? (Wolf, 2012), p. 51-81; Carrera, In Search of the Perfect Citizen? (Martinus Nijhoff, 2009); Funke, 'Primiirrechtliche Grundlagen', in: Wollenschlager, Enzyklopidie Europarecht, Band X, § 16; Kotzur, 'Articles n-80 TFEU', in: Geiger/Kahn/Kotzur (eds), European Union Treaties (C.H. Beck/Hart, 2014); Garcia Andrade, 'EU External Competences in the Field of Migration', CML Rev. 55 (2018), p. 157-183; Goodwin-Gill/Weckel (eds), Migration & Refugee Protection in the 21• Century. Legal Aspects (Martinus Nijhoff, 2015); Groenendijk, 'Citizens and Third Country Nationals', in: Carlier/Guild (eds), L'avenir de la libre circulation des personnes dans IV. E. The Future of Free Mowmmt of Persons in the EU (Bruylant, 2006), p. 79-102; HailbroMer, Immigration and Asylum Law and Policy of the European Union (Kluwer, 2000); Hinterberger, Regularisierungen i"eguliir aujhaltiger Migrantinnm und Migranten (Nomos, 2020); Icard (ed), Les .fwx migratoires au sein de /'Union euroJ"enne (Bruylant, 2018); Iglesias S!nchez, 'Constitutional Identity and Integration. EU Citi:zenship and the Emergence of a Supranational Alienage Law', GLJ 18 (2017), p. 1797-1822; Iglesias Sanchez, 'Fundamental Rights Protection for Third Country Nationals and Citizens of the Union', EJML 15 (2013), p. 137-153; Jesse, The Civic Citizms of Europe. The Legal Potmtial for Immigrant Integration in the EU, Belgium, Germany and the United Kingdom (Brill/Nijhoff, 2017); Klannann, lllegalisierte Migration. Die (De-)Konstn,ktion migrationsspezijischer Ilkgalitatm im Unionsrecht (Nomos, 2021); Kugelmann. 'Einwandcrungs- und Asylrecht', in: Schulze/Zuleeg/Kadelbach (eds), Europarecht. Handbuch fur die dnltsche Rechtspra:cis, 3rd edn (Nomos, 2015), § 41; Labayle, 'L'espace de liberte, securite et justice dans la Constitution pour l'Europe', Revve trirnestrielle de droit eurol"en 41 (2005), p. 437-472; McCormack-George, 'Equal Treatment of Third-C.Ountry Nationals in the European Union', EJML 21 (2019), p. 53-82; Mourio Permoser, 'Redefining Membership', Journal of Ethnic and Migration Studies 43 (2017), p. 2536-2555; Millier-Graff, 'Article 79 TFEU', in: Pechstein/Nowak/Hade (eds), Frankfurter Kommentar (Mohr Siebeck. 2017); Peers, EU fwtice and Home Affairs Law. VoL 1, 4th edn (OUP, 2016); Ripoll Servent/I'rauner (eds), The Routledge Handbook of fwtice and Home Affairs Research (Routledge, 2018); ter Steeg. Das Einwanderungskonzept du EU (Nomos, 2006); Thyrn, 'EU Migration Policy and its Constitutional Rationale', CML Rev. 50 (2013), p. 709-736; Thyrn, 'Residence as de facto Citizenship?', in: Rubio-Marin (ed), Human Rights and Immigration (OUP, 2014), p. 106--144; Thyrn, 'A Bird's Eye View on ECJ Judgments on Immigration, Asylum and Border Control Cases', EJML 21 (2019), p. 166--193; Thym/7..oeteweij-Turhan (eds), Rights of Third Country Nationals under EU Association Agreements (Martinus Nijhoff, 2015); Thyrn (ed), Questioning EU Citizenship (Bloomsbury/Hart, 2017); Wei1l, Articles TFEU, in: Strcinz (ed), EUVIAEUV. Kommmtar, 3rd edn (C.H. Beck, 2018); Wiesbrock, Legal Migration to the European Union (Martinus Nijhoff, 2010); Wilderspin, 'Articles 77-80 TFEU', in: Kellerbauer/Klamert/Tomkin (eds), The EU Treaties and the Charter of Fundamental Rights. A Commentary (OUP, 2019), p. 802-851; Wilsher, 'Economic Migration into the European Union: Standing at the Crossroads', Yearbook of European Law 21 (2002), p. 163-193; Wollenschlager (ed), Enzyklopadie Europarecht, Band X, 2nd edn (Nomos, 2021).

n-80

Note that literature in the selected bibliography will be mmtioned in an abbreviated version in the text below, referring to the authors(s) and a short title only.

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Chp.7

Legal Framework for EU Immigration Policy Content

mn.

I. General Remarks ......... ·-·················································································

I. Evolution of EU Immigration Policy..................................................... 2. Territorial Scope (Member State Panicipation) .................................. n. Treaty Guidance under Article 79 TFEU .................................................. I. Migration Management (Article 79(1) TFEU) .................................... 2. Scope of EU Competences (Article 79(2) TFEU) ............................... a) Entry and Residence............................................................................. b) Rights of Migrants and Free Movement.......................................... c) Illegal Migration .......... ................ .... ................................... .. ........ ......... d) Trafficking in Human Beings ....... ·-··············-··································· 3. Readmission Agreements (Article 79(3) TFEU).................................. 4. National Integration Policies (Article 79(4) TFEU) ........................... 5. Access to the Llbour Market (Article 79(5) TFEU)........................... Ill. Overarching Principles .................................................................................. I. Free Movement of Union Citizens......................................................... 2. Third Country Nationals·····································-··································· 3. Equal Trealnlent ·································-······················································ 4. 'Public Policy' Exception ........................................................................... 5. Migrant Integration ....................................................................... _........... 6. Prohibition of Abuse.................................................................................. IV. Human Rights and International Llw ....................................................... I. ECHR and the Chaner....·-······················-··············································· a) Private and Family We.......................... - .................................·-········ b) Rights of the Child................................................................................ 2. International Agreements.........................................................................

I I · 5 6 6 9 11 17 19 21

22 24 26 27a 28 33 37 42a 43 48

50 51 52 56

59

I. General Remarks 1. Evolution of EU Immigration Policy I

The original Schengen Agreements contained corollary rules on short-term stays (see Thym, Legal Framework for Entry and Border Controls, MN 3, 18), thus not affecting national competencies towards third country nationals. The Commission was unsuccessful in getting a foot in the door of immigration policy during the l 970s and I 980s after the end of the so-called 'guest worker' programme.• This changed when the Treaty of Mautricht designated immigration policy a matter of common interest, thereby signalling the start of gradual harmonisation. 2 On the basis of intergovernmental decision-making procedures under the Treaty of Maastricht (see Thym, Constitutional Framework, MN 2), Member States agreed on a number of joint positions and draft conventions which did not become binding law but paved the way for the later adoption of legislation after the introduction of a more robust Treaty foundation by the Treaty 1 See Berlinghof£, Die Bundesrepublik und die Europiisierung der Migrationspolitik seit den spiten 1960er Jahren', in: Ohmer (ed), Handbuch Staat und Migration in Deutsch/and seit (km 17. Jahrhundert (De Gruyter, 2015), p. 931, 958-964; Member States successfully challenged the co-ordination mechanism initiated by Commission Decision 85/381/EC of 8 July 1985 setting up a prior communication and consultation procedure on migration policies in relation to non-member countries (OJ 1985 L 217/25) in ECJ, Germany, France, the Netherlands, Denmark and the United Kingdom v. Commission, 281/85, 283/ 85-285/85 & 287/85, EU:C:1987:351; other initiates on legal and illegal migration like Commission Proposal, COM(78)86 or Commission Communication, COM (85)48 were not adopted or fell on deaf ears; on further comments, see Papagianni, Institutional and Policy Dynamics of EU Migration Law (Martinus Nijhoff, 2006), p. 3- 16. 2 See Anide K.1(3) EU Treaty as amended by the Treaty of Maastricht of7 February 1992 (OJ 1992 C 191/1); and Hailbronner, Immigration and Asylum, p. 47-52.

384

Thym

Chp.7 of Amsterdam. 3 Decision-making procedures were gradually aligned with the orthodoxy of supranationalism in a process which came full circle when the Treaty of Lisbon introduced the present Article 79 TFEU in line with the contents of the erstwhile Constitutional Treaty, which had never entered into force (see Thym, Constitutional Framework, MN 3-4). From today's perspective, Article 79 TFEU provides for a comprehensive shared competence of the Union for most questions relating to the entry and stay of foreigners (see below MN 11). Political agreement on new instruments for legal migration proofed difficult to 2 reach - in contrast to asylum and entry and border controls with regard to which the Schengen Agreements, the Dublin Convention and the Refugee Convention established a solid foundation for substantive policy harmonisation. Even negotiations on family reunion were cumbersome (see Bornemann/Arevalo, Directive 2003/86/EC, Article l MN 2-13) despite the human rights framework under Article 8 ECHR (see below MN 52-58). By contrast, an agreement on the 'fight against illegal migration' was comparatively easy to reach, not least through the adoption of the Return Directive. In contrast to the predominantly restrictive national practices in the field of economic migration at the time, the Commission boldly proposed a 'proactive immigration policy' based on the assumption that 'the existing "zero" immigration policies which have dominated thinking over the past 30 years are no longer appropriate.' 4 A proposal for a directive on economic migration met with stiff resistance in the Council and was abandoned after some initial discussions at working group level. 5 It was not until a couple of years later that the Commission, after an extensive consultation process, readdressed the issue in a policy plan on legal migration,6 which laid the basis for a sectoral approach to economic migration with specific directives on individual aspects.7 These instruments were eventually agreed upon after prolonged debates and will be discussed in detail in this Commentary: the Blue Card Directive, the Seasonal Workers Directive, the ICT Directive, the Single Permit Directive and the Students and Researchers Directive, which was recast during 2016 in a single instrument merging two earlier directives. At the time of the Stockholm Programme, the Commission reactivated its ambition 3 when it suggested the future adoption of an immigration code to streamline existing legislation and to overcome the piecemeal approach - an idea that was rejected by the Member States in the Council.8 The final Stockholm Programme called for a 'consolidation of all legislation in the area of immigration'9 as a compromise formula, even though the idea seems to have been buried by the Commission for the time being due to lack of J See Hailbronner, Immigration and Asylum, p. 260-288. 'Commission Communication, COM(2000) 757, p. 13 (first quote) and p. 6 (second quote). 5 See Commission Proposal, COM(2001) 386 and Council doc. 11803/01 of 12 September 2001; on the course and the context of inter-institutional debates, see Mourio Permoser, Redefining Membership, p. 2547-2549; Wilsher, Economic Migration, p. 172-183; and Papagianni, /rutitutional and Policy Dynamics"of EU Migration Law (Martinus ~ijhoff, 2006), ch. 5. •Seethe Commission Communication, COM(2005) 669 and the consultation with Member States and stakeholders beforehand on the basis of a Commission Green Paper, COM(2004) 811. 7 The Commission Communication, COM(2005) 669, p. 5-8 announced policy initiatives on a general framework directive as well as for sectoral proposals on highly skilled workers (the later Blue Card), seasonal workers, intra-corporate transferees and trainees. • Contrast the Commission Communications, COM(2009) 262, p. 25, and COM(2010) 171, p. 7 with the Council Conclusions, Council doc. 9935/10 of 19 May 2010 (adopted by the JHA Council on J June 2010); on the political context, see Koetakopoulou et al., 'EU Migration Law', in: Arcarazo/Mwphy (eds), EU Security, p. 129, 132-134; and Carrera, 'The Impact of the Treaty of Lisbon over EU Policies on Migration, Asylum and Borders', in: Guild/Mindemoud (eds), The First Decade of EU Migration and Asylum Law (Martinus Nijhoff, 2012), p. 229, 241-242. 9 See European Council, The final Stockholm Programme (OJ 2010 C 115/1), p. JO.

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Chp. 7

Legal Framework for EU Immigration Policy

political support. 10 Later political guidelines by the European Council were decidedly vague (see Thym, Constitutional Framework, MN 8-9). In recent years, border controls and asylum were the focus of attention, thus leaving not much political appetite for reform in the field of immigration policy with the exception of Commission Proposals for a revision of the Blue Card Directive and the Return Directive, of which only the former had been agreed upon politically at the time of writing (see Herzog-Schmidt/ Lehner, Directive 2009/50/EC, Article I MN 4; and Lutz, Directive 2008/115/EC, Article I MN 23b). An update of the Long-Term Residents Directive and the Single Permit Directive was promised for the end of 2021. 11 Moreover, one hears that the Commission refrained from proposing a revision of the Family Reunification Directive, in particular, since it does not want to give Member States an opportunity to insist on stricter rules during the legislative process. 12 Is not unproblematic from the perspective of democratic theory, if statutory legislation is effectively set in stone. 4 Political disagreement over the direction of immigration policy should not come as a great surprise. With regard to legal migration, the Treaty framework, with its collection of diverse and occasionally contradictory policy objectives, established no clear political guidance on the course of action to be pursued by the legislature (see Thym, Constitutional Framework, MN 5-7). There were, and sometimes continue to be, protracted disputes at EU level about the desirability of joint policies and the scope of supranational competences (see below MN 24-27). 13 The underlying reason may be the absence of a basic agreement about the conceptual underpinning of legal migration, which generally pursues diverse and potentially contradictory policy objectives that can be difficult to reconcile. 14 The Commission could not convince Member States to follow its essentially market-driven approach to labour migration (see above MN 3) and to promote a rightsbased approach to social integration (see below MN 44). 15 By contrast, cooperation was comparatively straightforward in the field of illegal migration, not least as a result of the initial predominance of domestic interior ministries in justice and home affairs - a process that has been described and criticised as 'securisation' by academic experts (see Thym, Legal Framework for Entry and Border Controls, MN 3). This is symbolised by the prominent role of the Treaty objective, enshrined in to Article 79(1) TFEU, to adopt 'enhanced measures [to prevent and] to combat illegal migration.'

2. Territorial Scope (Member State Participation) 5

The EU immigration measures are subject to country-specific opt-outs for Ireland and Denmark as well as the United Kingdom before Brexit. The abstract rules guiding these arrangements are described in the introductory chapter to this commentary (see Thyrn, Constitutional Framework, MN 38-45). It was demonstrated that the overall

°For a proposal, Stt Peers, 'An EU Immigration Code', EJML 14 (2012), p. 33-61; for later support,

1

see European Parliament Resolution on new avenues for legal labour migration, P9 _TA(2021)0260 of

20 May 2021, No 32-33. 11 See Commission Communication, COM(2020) 609, p. 26. 12 Various national governments, not least the Netherlands, have called upon the Commission to table a proposal for a reform of the Family Reunification Directive over the years. 13 See also Ryan, 'The European Union and Labour Migration', in: Toner el al. (eds). Whose Freedom, Security and Jwticef (Han, 2007), p. 489, 490-496. 14 See Castles/de Haas/Miller, The Age of Migration, 611, edn (Red Globe Press, 2020), chs 10 el seq.; and Hampshire, The Politics of Immigration. Contradictions of the Liberal State (Polity, 2013). 15 On different policy visions in the EU debate, see Thym. Migrationsverwa/tvngsncht (Mohr Siebeck, 2010), ch. 3; Wilsher, Economic Migration, p. 184-187; Guild. 'Mechanisms of Exclusion', in: Apap (ed), Justice and Home Affairs Law in the EU (FJgar, 2004), p. 211, 217-221; and Peers, 'Aliens, Workers. Citizens or Humans?', in: Guild/Harlow (eds), lmpkmmting Amsterdam (Han, 2001), p. 291-308. 386

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Chp.7 picture is rather complex and can be difficult to discern in specific scenarios, since the country-sped.fie opt-outs for Ireland and Denmark do not follow a uniform pattern. There are differences between the rules for Denmark on the one hand and for Ireland (and the United Kingdom) on the other. Moreover, we are faced with two sets of rules for the above-mentioned countries: measures building upon the Schengen acquis and other instruments. In practice, the last recitals of most instruments reveal whether Ireland or Denmark are bound. In order to facilitate orientation, the list of the measures below indicates which Member States participate in the instruments commented on in this volume and whether they are considered to be building upon the Schengen acquis. Neither the Withdrawal Agreement nor the negotiating guidelines for future agreements indicate that the United Kingdom will associate itself with the harmonisation of immigration rules for third country nationals other than the reciprocal rights of EU citizens and British nationals on the basis of international treaties (see Thym, Constitutional Framework, MN 45a). Ireland

Denmark

United Kingdom (before Brexit)

Schengen? 16

Family Reunification Directive 2003/86/EC

no

no

no

no

Long-Term Residents Direclive 2003/109/EC

no

no

no

no

Human Trafficking Directive 2004/81/EC

no

no

no

no

Return Directive 2008/115/EC

no

no

no

no

former Students Directive 2004/114/EC

no

no

no

no

former Researchers Directive

yes

no

no

no

Blue c.ard Directive 2009/50/EC

no

no

no

no

Employer Sanctions Directive 2009/52/EC

no

no

no

no

Single Permit Directive 2011/98/EU

no

no

no

no

Seasonal Workers Directive 2014/36/EU

no

no

no

no

Inter-Corporate Transfers Directive 2014/66/EU

no

no

no

no

Students and Researchers Directive (EU) 2016/801

no

no

no

no

Instrument

2005nI/EC

Participation in immigration law instruments commented upon in this volume. •• Does the measure build upon the Schengen acquis? If yes, it is subject to the opt-out arrangements in the Schengen Protocol described by Thym, Constitutional Framework. MN 41, 44.

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Chp. 7

legal Framework for EU Immigration Policy

II. Treaty Guidance under Article 79 TFEU Article 79 TFEU I. 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 I, 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. 3. The Union may conclude agreements with third countries for the readmission to their countries of origin or provenance of third country nationals who do not or who no longer fulfil the conditions for entry, presence or residence in the territory of one of the Member States. 4. The European Parliament and the Council, acting in accordance with the ordinary legislative procedure, may establish measures to provide incentives and support for the action of Member States with a view to promoting the integration of third country nationals residing legally in their territories, excluding any harmonisation of the laws and regulations of the Member States. 5. This 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. I. Migration Management (Article 79(1) TFEU) 6

The EU Treaty takes up, in Article 79(1) TFEU, the objective of ensuring an 'efficient 17 management of migration flows', thereby reiterating a demand that was common among politicians across Europe when the European Convention proposed the new text that later found its way into the Treaty of Lisbon (see Thym, Constitutional Framework, MN 4, 13). Article 78(2)(g) TFEU indicates that the rationale applies to asylum policy as well when it calls for 'partnership and cooperation with third countries for the purpose of managing inflows of people applying for asylum'. Of course, the objective remains counter-factual, since public authorities will never be in full control. Nonetheless, EU Treaties strive for regulatory leverage, reflecting Europe's wider 'social 17 While the English language version employs the process-oriented term 'efficient" (not the outcomeoriented word 'effective'), other language versions, which are equally valid, we the term 'effective' or wording that can mean both; cf. the German 'wirksam', the French 'efficace· or the Spanish 'ejicaz.'

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Cbp.7 model' of active state involvement in social and economic policy. 18 Under the umbrella of efficient migration management, Article 79( 1) TFEU brings together diverse and potentially contradictory objectives, ranging from 'enhanced (!) mcaaura to combat illegal migration' 19 (French: lutte renforcee-, German: verstarkte Bekampfung) to 'fair treabnent' of third country nationals (see below MN 8). 20 They must be accommodated with the EU's general Treaty objectives enshrined in Article 3 TEU and, in the case of cooperation with third countries, foreign policy objectives under Article 21 TEU (see below MN 23). In legal and interdisciplinary debates, there is widespread agreement that the concept 6a of 'migration management' signals the reorientation of migration law and policy within Europe and beyond. States no longer concentrate on law enforcement at the point of border controls, instead embarking on cooperation with countries of origin or transit, private actors and international organisations. 21 It combines, in this respect, acknowledgement that public authorities will never be able to factually control events on the ground fully, while striving for regulatory leverage nevertheless. 22 The management concept has been criticised for depoliticising public discourse through the use of technical language, thereby shielding policy developments from public scrutiny and criticism;23 moreover, the focus on seemingly flawless ideas such as 'triple-win' or 'circular migration' can hide dilemmas and conflicts of interest any external action on migration will almost inevitably be confronted with. 24 The rise of the management paradigm coincided with the reorientation of the international debate in the early 2000s when academic and political actors supported a positive nexus between migration and development, thus emphasising that well-managed migration can be beneficial to receiving and sending states. 25 The objective of efficient management 'at all stages' indicates that the EU Treaties 7 do not conceive of cross-border movements as a simple one-step settlement that instantly results in full membership. EU primary law specifies, rather, that the legal dimension of migrants' biographies can be described as a process of legal status change (see Thym, Legal Framework for EU Asylum Policy, MN 37-39). Depending on the circumstances of the individual case, EU law can provide for 'short-stay residence 18 See Castles, The Factors that Make and Unmake Migration Policies', IM Rev. 38 (2004), p. 852-884; and Hollifield, The Emerging Migration State', IM Rev. 38 (2006), p. 885, 894-899. 19 On the European debate in the 1990s and early 2000s, from which the objective emerged, see Klannann, lllegalisiene Migration, ch. 4.1.2+3; and Hinterberger, Regul.arisierungen, p. 143-145, 164-165. JD Kostakopoulou/Acosta Arcarazo/Munk, 'EU Migration Law. The Opportunities and Challenges Ahead', in: Acosta Arcaraw/Mwphy (eds), EU Security and /ustiu Law (Hart, 2014), p. 128, 133 report that the Member States symbolically insisted on replacing the Commission's emphasis on 'fair' treatment with calls for 'well-managed' migration. 21 See Taylor, 'From Border Control to Migration Management', Social Policy & Administration 39 (2005),'p. 563-586; Spijkerboer, 'Changing Paradigms in Migration Law Research', in: Griitter/Mantu/ Minderhoud (eds), Migration on the Move (Brill, 2017), p. 13, 15-18; and Thym, Constitutional Rationale, p. 721-723. 22 See Pina-Delgado, The Current International Legal Framework of Economic Migration Management', in: Goodwin-Gill/Weckel, 21" Century, p. 127-165. H See Uakar, The Rhetoric of European Migration Policy and Its Role in Criminalization of Migration', in: Kogonek Salamon (ed), Causes and Consequences of Migrant Criminalization (Springer, 2020), p. 91, 96-97; and But, Aufenthaltsrrcht und Migrationssteunung (Mohr Sicbeck, 2011), p. 6-12. 2• See Geiger/Ptcoud, The Politics of International Migration Management', in: ibid. (eds), The Politics of International Migration Management (Palgrave Maanillan, 2010), p. I, 11-16. 25 See 'de Hau. 'Migration and Development. A Theoretical Perspective', IM Rev. 44 (2010), p. 227-264; and Chetail, 'Paradigm and Paradox of the Migration-Development Nexus', German Yearbook of international Law 52 (2008), p. 183-215.

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pennit[s]' (Article 77(2)(a) TFEU) leading towards 'long-term residence permits' (Article 79(2)(a) TFEU) and the eventual acquisition of Union citizenship by means of naturalisation at national level (see MN 14) - or it can result in 'removal' in situations of 'unauthorised residence' (Article 79(2)(c) TFEU). The distinction between different scenarios in the Treaty articles, including the demarcation between immigrants and asylum seekers, indicates that the objective of effective migration management is to be achieved by means of distinct rules for different categories of persons in secondary legislation. The European concept of an 'immigration policy' (French: politique d'immigration) is not about either entry or rejection, but about a selective admission process on the basis of refined statutory rules, whose contents is determined by the EU legislature in the legislative procedure. 26 8 The EU Treaties emphasise that migration management must not result in a treatment of human beings akin to that of objects when it caJls on EU institutions to guarantee the 'fair treatment of third country nationals'27 (French: traitement equitable; German: angemessene Behandlung), thereby introducing a basic notion of normative considerations of social justice into the Treaty design for immigration policy, which, at the same time, was meant to signal that standards for third country nationals contrast with the 'equal treatment' paradigm of Union citizenship (see Thym, Constitutional Framework. MN 7a; and below MN 33-36). I have explained elsewhere that the various Treaty objectives for migration policy ranging from migration management to fair treatment, read in conjunction, can ideally be conceived of as an aspiration of 'migration governance' accommodating the management perspective of state authorities with the legitimate interests of migrants. 28 These diverse objectives are, like all Treaty objective, leplly binding at an abstnct level that does not translate into judiciable standards for the review of EU legislation in regular circumstances (see Thym, Constitutional Framework, MN 5-7). In so far as the fair treatment of migrants is concerned, limited judicability does not exclude judicial review in so far as migrants can rely upon the human rights in the EU Charter (see below MN 51-52).

2. Scope of EU Competences (Article 79(2) TFEU) 9

As a shared competence, legislation on immigration policy must comply with the principles of subsidiarity and proportionality, which oblige the EU legislature only to pursue initiatives that cannot be sufficiently achieved at the national level and remain limited, in terms of regulatory intensity, to what is necessary to achieve jointly. 29 However, when assessing specific proposals, it should be acknowledged that the farreaching Treaty objective of a 'common immigration policy' capable of managing migration flows efficiently 'at all stages' requires a certain generosity in the application of the principles of subsidiarity and proportionality; the EU institutions benefit from a margin of appreciating when deciding on the suitability of new proposals. 30 Assessment of specific scenarios will usually depend on the contents and purpose of supranational measures. In the field of economic migration, for instance, the continued discrepancies "'The ordinary legislative procedure applies to all aspects of Article n-79 TFEU. 27 Article 79(1) TFEU; similarly, Article 67(2) TFEU. 28 See Thym, Constitutional Rationale, p. 721-723; and Thym, 'Citizens and Foreigners in EU Law', ELI 22 (2016), p. 296, 306-311; see also Vanheule, The Multifaceted Role of Law in the Development of European Asylum and Migration Policy', in: Gortu.ar/Parra/Segaertffimrnennann (eds), European Migration and Asylum Policies: Cohermce or Contradiction? (Bruylant, 2012), p. 89, 92-96. 29 See Article 5(3), (4) TEU. :10 Similarly, see Labayle, L'espace. p. 463; Wilderspin, Article 79 TFEU. para 6; Peers. EU Jwtice, p. 328; ter Steeg. Einwanderungskonzept, p. 454; and Kugelmann, Einwanderungs- und Asylrecht,

para 113.

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Chp.7 among the domestic labour markets call for a cautious approach whether and, if so, to what extent supranational action adds value. The term 'measure' in the introductory part of Article 79(2) TFEU indicates that directives, regulations, decisions and nonbinding recommendations or informal 'soft law' can be adopted and that operative and financial support, which legally usually rests upon a decision, are also permissible. The term 'measure' also covers administrative involvement of EU agencies (see Thym, Legal Framework for Entry and Border Controls, MN 7-8). The recurrent use of the term 'third country national' 31 indicates that Article 79 10 TFEU read in conjunction with the second sentence of Article 67(2) TFEU concerns primarily the migration status of nationals of third states including stateless persons. Union citizens cannot be the object of legislation on the basis of Article 79 TFEU, not even when they have no right to reside under the Citizenship Directive 2004/38/EC.32 By contrast, the migration status of third country national family memben of Union citizens can be dealt with in legislation on the basis of Article 79 TFEU as a matter of legal competence.33 [f the EU legislature decides to do so, it has to ascertain that derived rights of family members of Union citizens from third countries benefit from a privileged treatment in line with Treaty obligations that command priority over immigration legislation in cases of conflict (see below MN 31). It should be noted that family members of static Union citizens who have not exercised free movement rights are not covered by corresponding EU rules; Member States remain free to apply domestic laws (see below MN 30). a) Entry and Residence. The generous formulation that Article 79(2)(a) TFEU 11 covers 'conditions of entry and residence' shows that the Union has an extensive competence for core aspects of immigration law, which must be exercised with due respect for the principles of subsidiarity and proportionality (see above MN 9). Family reunification is mentioned by way of illustration ('including'); the legislature remains free to establish rules for diverse other migrant categories or to modify their configuration (see above MN 7). In practice, it has done so extensively in recent years, as the numerous legislative instruments discussed in this volume demonstrate. Permission for entry and residence can be handed out either by consulates in the countries of origin or transit for the purpose of first admission by means of 'long-term visas' or by domestic immigration authorities in the form of 'residence permits' for those already residing on EU territory; both options are mentioned in Article 79(2)(a) TFEU. While short stays of a few months are covered by Article 77(2)(a) TFEU, visas and permits for longer periods come within the reach of Article 79(2)(a) TFEU. Read in conjunction, Treaty articles allow for the seamless regulation of immigration statuses, with the precise delimitation of shorter and longer stays being the prerogative of the legislature (see Thym, Legal Framework for Entry and Border Controls, MN 12). There is little doubt, in contrast to the previous situation, that the Treaty of Lisbon 12 established a competence for the EU to adopt legal rules on economic migration, such as the Blue Card Directive 2009/50/EC or the Students and Researchers Directive (EU) 2016/801, for as long as Member States retain a certain flexibility in accordance Article 79(5) TFEU, whose precise contents remains unclear (see below MN 26-27). The introduction of this caveat was based on the assumption that the EU had acquired a Article 79(1), (2)(b), (4) and (5) TFEU. Miiller-Graff, Article 79 Tl'EU, para I suggests otherwise, but does not explain how his position relates to the rather unambiguous wording not covering Union citizens. n In practice, the Family Reunification Directive, in particular, does not extend to the entry of family members of Union citizens; see Bornemann/Arevalo, Directive 2003/86/EC Article 3 MN 14. 11

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legislative competence for economic migration as a matter of principle. 34 It follows from the broad designation of 'conditions' and 'standards' that Article 79(2)(a) TFEU supports rules on the revocation of residence permits, including expulsion on public policy grounds (see below 42a-42d). Once a residence permit has been revoked, measures against 'illegal immigration and unauthorised residence' under Article 79(2)(c) TFEU can be instigated (see below MN 19). 13 Rules on asylum are covered by Article 78 TFEU as lex specialis, while 'complemen-

tary' humanitarian residence permits for thoae who do not qualify for asylum or subsidiary protection in line with legislation on the basis of Article 78(2)(a), (b) TFEU can come within the reach of Article 79 TFEU.lt is not easy to clearly delineate Articles 78 and 79 TFEU in such cases, since complementary protection usually covers diverse elements ranging from considerations that could be covered by a revision of subsidiary protection status35 to humanitarian motives not linked to the situation in countries of origin, which are covered by Article 79(2)(a) TFEU. 36 There are, at present, multiple and highly diverse national regimes for those who do not receive international protection in line with the Asylum Qualification Directive 2011/95/EU because their asylum application is rejected. 37 These rules could be harmonised on the basis of Article 79(2)(a) TFEU as a matter of principle. 13a In addition to rules on complementary humanitarian residence statuses, the EU holds the power to adopt legislation on the regularisation of unauthorised residence on the basis of Article 79(2)(a) TFEU. 38 At present, there is a patchwork of national schemes of wither permanent or temporary character, which apply diverse criteria and which are not always represented as a regularisation instrument officially. 39 Nevertheless, the diversity of national schemes need not indicate the need for EU action, since there may be good reasons of distinct domestic immigration rules or socio-economic contextual factors why approaches differ. The principle of subsidiarity argues for a careful assessment of the necessity of a pan-European legalisation scheme, even if it does not usually prevent legislation as a result of legislative discretion (see above MN 9). Attempts by the Commission to carefully get a foot in the door of regularisation was met with resistance by Member States in the Council. 40 We cannot expect far-reaching political initiatives in the near future. w Cf. the proposal for Article 111-163(5) in the draft Constitutional Treaty by the Presidiwn of the European Convention in doc. CONV 847/03; as well as the summary of the reactions among the members of the Convention in doc. CONY 821/03, p. 83; see also Ladenburger/Verwilghen, 'Policies Relating to the Area of Freedom, Security and Justice', in: Arnato/Bribosia/de Witte (eds), Geriese et destinee de la Constitution europeenne (Bruylant, 2007), p. 743, 764; as well as Peers. EU Justice, p. 328-329; and WeiB, Article 79 TFEU, para 3. 15 Note that the notion of ·subsidiary protection' in Article 79(2)(b) TFEU is an autonomous Treaty concept that does not prevent the legislature from changing the statutory requirements for subsidiary protection in the present Article 15 Asylwn Qualification Directive 2011/95/EU; see Thym, Legal Framework for EU Asylum Policy, M:-.1 20. :w. For further reflection, see Schieber, Komplementarer Schutz (Nomos, 2013), p. 298-314; in practice, both legal bases can be used in parallel if the contents and purpose of the legal instrument has a mixed centre of gravity; the ordinary legislative procedure applies to both legal basis. 17 See comparative study by the European Migration Network, Comparative Overview of National Protection Statuses in the European Union (EU) and Norway, Synthesis Report, May 2020; and Schieber, Komplementiirer Schutz (Nomos, 2013), ch. 3. )II For further comments, see Hinterberger, Regularisierungen, p. 173-184; similarly as here, see Bast, Aufenthaltsrecht und Migrationssteuerung (Mohr Siebeck, 2011), p. 146-147. 19 For comparative studies, see Hinterberger, Regularisierungen, ch. 4; Heegaard Bausager/Kopfli Meller/Ardittis, Situation of Third-Country Nationals Pending Postponed Return/Removal, Commission doc. HOMFJ2010/RFXX/PR/1001 of March 2013, p. 68-73; and De Bruycker (ed), Les ,igularisotions des etrangers illegawc clans /'Union europknne (Bruylant, 2000). "'See Lutz, 'Non-Removable Returnees under Union Law. Status Quo and Possible Devdopments', EJML 20 (2018), p. 28, 46-50.

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Chp.7 Efficient migration management 'at all stages' (see above MN 7) implies that first 13b admission will not usually bring about permanent residence single-handedly. It remains the prerogative of the legislature to decide whether residence permits shall be renewable. Legislation can provide for residence permits without the option of renewal, as in the example of the Seasonal Workers Directive 2014/36/EU. In case of renewal, third country nationals will gradually meet the requirements for long-term residence status under Directive 2003/109/EC, which is the European equivalent of the US-style Green Card or settled status under UK immigration law. Article 79(2)(a) TFEU covers legislation on long-term residents; it remains the prerogative of the legislature to decide how strict or generous corresponding rules are to be. Article 20(1) TFEU highlights that Union citizenship shall be acquired by means of 14 naturalisation at national level. Accordingly, it is settled ECJ case law that 'it is for each Member State, having due regard to international law, to lay down the conditions for acquisition and loss of nationality'41 , even though judges interpret the concept of Union citizenship as establishing outer limits Member States have to respect when designing domestic rules on the acquisition or loss of nationality. 42 There is nothing in the wording of Article 79 TFEU indicating that the responsibility of the Member States for nationality law shall be limited. It would require Treaty change to establish a supranational competence for the harmonisation of nationality laws in the European Union. 43 The absence of a legislative competence does not imply, however, that the current situation is conceptually satisfactory. It was recognised, both in the Common Basic Principles on migrant integration (see below MN 24) and in the case law of the ECJ and the ECtHR (see below MN 54), that the acquisition of nationality demonstrates and promotes integration into host societies. 44 The absence of supranational coordination of nationality laws is a conceptual black hole of an overarching EU immigration policy,45 which, moreover, can entail that the Union legislature employs long-term residence status as a proxy for nationality, thereby rendering it less attractive to naturalise (see Thym, Long-Term Residents Directive 2003/ 109/EC, MN 20). The EU institutions should consider, therefore, to reintegrate nationality in non-binding policy papers and to promote intergovernmental debates among Member States,46 both on the need for conditional naturalisation of long-term immigrants and on other aspects, such as the recent proliferation of up 'citizenship for sale' or 'gold passport' programmes, which are politically contested. 47 Rules on migration in association agreement with third states creating privileged 15 links with a non-member country which indirectly take part in the Community system to a certain extent are covered by Article 217 TFEU as lex specialis, thereby requiring unanimity (see, mutatis mutandi, see Thym, Legal Framework for Entry and Border • 1 ECJ, Tjebbes et al, C-221/17, EU:C:2019:189, para 30 reiterating a position expressed first in ECJ, Micheletti, C-369/90, EU:C:1992:295, para 10. 42 See ECJ, Tjebbes et al., C-221/17, EU:C:2019:189, paras 30 et seq.; and ECJ, Rottmann, C-135/08, EU: C:2010:104, paras 39-41; for funher comments, see de Groot/Luk, 'Twenty Year.; of CJEU Jurisprudence on Citizenship', German Law Journal 15 (2014), p. 821-834; and Weber, Staatsangehorigkeit und Statw (Mohr Siebeck. 2018), p. 216-260. 43 Similarly, see Funke, Primirrechtliche Grundlagen, para 14. 44 See the Common Basic Principles, Council doc. 9905/1/14 of 26 May 2014, No 6: naturalisation 'can be an important incentive for integration'; and ECJ, Lounes, C-165/16, EU:C:2017:862, para 58. • 5 See Iglesias Sanchez., '!llationality. The Missing Link between Citizenship of the European Union and European Migration Policy', in: Guild/Gonazar Rotaeche/Kostakopoulou (eds), The Reconceptualization of European Union Citiunship (BrilUNijhoff, 2014), p. 68, 69-75. .. See Ailamrrhym, 'Integration', in: De Bruycker/De Somer/De Brouwer (eds), From Tampere 20 to Tampere 2.0. Towards a new European consensus on migration (EPC, 2019), p. 73, 80-81. •'Seethe Commission Communication, COM(2019) 12.

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Controls, MN 15). The same applies to the adoption of negotiating positions in treaty bodies established on the basis of such agreements in line with Article 218(8)(1), (9) TFEU. 411 In line with settled case law, the ECJ may interpret such agreements, since they are an integral part of Union law. 49 Corresponding privileges for nationals of specific countries under association agreements or pre-existing bilateral treaties of the Member States are usually protected in EU legislation by means of explicit provisions on more generous national treabnent (see Thym, Constitutional Framework, MN 28-33), which are declaratory in nature insofar as rules in international agreements are directly applicable under the conditions set out in ECJ case law (see Thym, Constitutional Framework, MN 59-63). ISa Article 79(2)(a) TFEU can cover international agreements or informal cooperation &ameworks on legal migration, which do not qualify as an association agreement (see above MN 15) and whose centre of gravity concerns migration. By contrast, corollary provisions on migration in broader agreements whose main contents and purpose is not migration are governed by Treaty provisions on external relations (see Thym, Legal Framework for Entry and Border Controls, MN 28a-28b). Against this background. it was not convincing from a legal perspective that the Council decided to ratify the broad association agreement with Ukraine not solely on the basis of Article 217 TFEU, but additionally under reference to Article 79(2)(b) TFEU for a specific provision on migrants' rights during periods of legal residence (see below MN 17a). 50 Insofar as the EU institutions opted for a formalisation of mobility partnerships, induding meaningful channels of entry (see below MN 63), they could be based on Article 79(2)(a) TFEU under the condition that they respect the limits prescribed by Article 79(5) TFEU (see below MN 26-27), 51 while support for migrants abroad will usually be covered by development policy. 52 It should be noted that any activation of the shared competence of Article 79(2)(a) TFEU, for instance with regard to novel legal pathways, remains a political choice primary law does not pre-empt. 53 If the EU does not activate shared implied external powers, Member States can join forces with the institutions by means of mixed agreements. In any case, informal cooperation frameworks require a legal basis despite not being legally binding and are subject to institutional constraints (see Thym, Legal Framework for Entry and Border Controls, MN 29). It is irrelevant for the delimitation of legal bases that Article 79 TFEU, unlike other competences enshrined 41 Cf. ECJ, C-81/13, United Kingdom v. Council, EU:C:2014:2449, para 66; this entails, by way of example, that agreement on a negotiating position in a treaty body will not require, unlike the adoption of directives on the same matter, the consent of the European Parliament. 49 Settled case law in line with ECJ, Demirel, 12/86, EU:C:1987:400, para 9. 50 Cf. Decision 2014/295/EU (OJ 2014 L 161/1) on the basis of Article 217 TFEU; and Decision 2014/ 668/EU (OJ 2014 L 278/1) on the basis of Anicle79(2) TIFEU specifically with regard to Anicle 17 of the agreement; by contrast, the Commission Proposal, COM(2013) 290 had proposed a uniform legal basis; Bosse-Platiere/Flaesch-Mougin, 'Action mtrieure de l'Union ewopeenne', Revue trimestrieUe de droit europten (2018), p. 197-230 repon that the Council wanted to circumvmt a veto option. 51 Article 79(2)(a) TFEU with its reference to 'conditions of mtry and residence' is broad enough to cover non-legislative initiatives, for instance a first admission schemes for specific countries, also considering that the term 'measure' is not confined, in line with comments above MN 9, to instruments on legislative harmonisation; the situation was different before the entry into force of the Treaty of Lisbon, when the institutions were rightly sceptical about supranational competences for mobility partnerships; on the necessary respect for Article 79(5) TFEU and a restrictive interpretation of the latter, see De Bruycker, 'L'l!mergence d'une politique europl!enne d'immigration', in: earlier (ed), L etrangtr face au droit (Bruylant, 2010), p. 351, 354-355; see also Iglesias SAnchez, 'Migration Agreements between the European Union and Third States', in: Goodwin-Gill/Weckel, 21st Century, p. 167-194. 51 On the institutional practice, see Garcia Andrade, EU External Competences, p. 178-182. 5l Such shared external powen must be distinguished from aclusive implied powers under Article 3(2) TEU and ECJ case law; see Thym, Legal Framework for Entry and Border Controls, MS 28 a.

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Chp.7 in primary law, entails that Member States with an opt-out do not participate (see Thym, Constitutional Framework, MN 39a). Article 79(2)(a) TFEU states that the EU legislature may adopt measures with 16 'standards on the issue' of residence permits, thereby indicating that EU legislation can embrace rules on administntive procedure and judicial protection which, as leges speciales, supplant the principle of national procedural autonomy that applies in the absence of statutory prescriptions (see Thym, Constitutional Framework, MN 34-37). Notwithstanding the respect for national specificities and the principle of subsidiarity (see above MN 9), the Single Permit Directive 2011/98/EU and corresponding provisions in other directives demonstrate on legal migration the relevance of procedural requirements for immigration practice. When the Treaty explicitly refers to the delivery of residence permits 'by Member States,' it reaffirms that supranational rules on immigration should be implemented at domestic level as a matter of principle (see Thym, Legal Framework for Entry and Border Controls, MN 8). Like in the case of other legal bases, Article 79(2)(a) TFEU allows for legislation on supranational datahues (see Thym, Legal Framework for Entry and Border Controls, MN lOa, 17b), which need to comply with data protection standards (see Thym, Constitutional Framework, MN 37 0. b) Rights of Migrants and Free MovemenL Article 79(2)(b) TFEU 54 concerns the 17 rights of third country nationals during periods of legal residence in accordance with the legislation. 55 In practice, legislation will often be based upon part A and B jointly, since most instruments regulate residence conditions and rights together. 56 The unspecific wording used in the Treaty indicates that the legislature has broad discretion when deciding which rights should be harmonised and it can lay down distinct categories of rights for various status groups (see below MN 40a). 57 In doing so, it can opt for an approximation with the status of Union citizens, in particular for long-term residents, but is not legally obliged to do so (see below MN 33-36). It can also prescribe the degree of social rights in relation to social assistance or social security58 as well as statutory guarantees on equal treabnent (see below MN 41 ), including on working conditions. 59 The competence also covers access to the labour market by those who have been admitted for purposes other than economic migration, such as students or family members, while first admission for economic purposes is covered by Article 79 (2)(a) TFEU (see above MN 12). The general scheme of the EU Treaties suggests that, like naturalisation (see above MN 14), political rights of foreigners, including the S4 In contrast to the e-arlier situation, the Treaty of Lisbon clarified that rights during periods of legal residence can be harmonised; see Toner, 'The Lisbon Treaty and the Future of European Immigration and Asylum Law', in: Awulai/De Vries (eds), EU Migration Law, p. 14, 25. 55 While the general scheme of Article 79 TFEU may be read to signal that legislation on the basis of Article 79(2)(b) TFEU concerns primarily periods of legal residence under legislation adopted on the basis of Article 79(2)(a) TFEU, there is nothing in the wording of the former provision indicating that the EU cannot adopt rules on the rights of third country nationals residing legally on grounds of domestic law beyond the scope of supranational legislation on first admission ratione personae. 56 Such dual legal basis is unproblematic if, like in the instant case. the same decision-making procedure applies. 57 Similarly, see Miiller-Graff, Article 79 TFEU, para 25. 58 Declaration No 22 (OJ 2007 C 306/258) promises that in relation to country-specific financial and other impacts 'the interests of that Member State will be duly taken into account.' 59 Wilderspin, Article 79 TFEU, para 21 rightly notes that this does not contradict the unanimity requirement under Article 153( I )(g) TFEU provided that the centre of gravity of supranational legislation is immigl"ation status, not social rights; it should be noted that the guarantee of equal treaonent with nationals does not prevent Member States from changing the level of protection for everyone; see Thym, 'Towards "Real" Citizenship?', in: Adams et al. (eds), Judging Europe"s fudges (Hart, 2013), p. 155, 162.

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right to vote in municipal elections, cannot be harmonised on the basis of Article 79 TFEU in the absence of any indication to the contrary mirroring the express provision in the Treaties on the voting rights of Union citizens.60 17a In line with general rules on the delineation of competences, corollary provisions on the rights of migrants in international agreements with third states are covered by external relation competences (see above MN 15). By contrast, international agreements and informal cooperation &ameworks with third states are covered by Article 79(2) TFEU if their centre of gravity in terms of contents and purpose concerns legal migration (see above MN 15a). A special case are sectoral arrangements on social security coordination. 61 They are covered by Article 48 TFEU as lex specialis, in the eyes of the ECJ, whenever their contents brings about (almost) complete and reciprocal integration into the single market and its social security coordination regime, like tn the case of the European Economic Area or Switzerland.62 In the specific case of Turkey, however, the ECJ considered Article 217 TFEU appropriate due to the close linkage with the association acquis (see below MN 60).63 By contrast, Article 79(2)(b) TFEU can be activated in scenarios not related to association agreements and where the contents of the agreement differs markedly from single market rules,64 even though the latter argument can be contested. Why should the EU legislature be obliged to adopt rules for third country nationals which do not mirror Union citizenship? It is not constitutionally obliged to do so (see below MN 33-37a), but it may opt to exercise its discretion in this respect. Similar arguments would have to be considered if the legislature decided to extend other single market legislation to third country nationals by means of internal legislation or international agreement, such as the recognition of professional diplomas or the European Network of Employment Services (EURES). It is irrelevant that Article 79 TFEU, unlike other competences enshrined in primary law, can entail the non-participation of Member States with an opt-out (see Thym, Constitutional Framework, MN 39a). 18 Article 79(2)(b) TFEU allows for the adoption of statutory rules on mobility and residence rights within the single market for third country nationals who have already been granted access to the EU territory.65 The legislature is not obliged to provide this option, as the case of the Seasonal Workers Directive 2014/36/EU demonstrates, but most instruments adopted in recent years foresee various degrees of intra-European mobility, even though the scope of these rights differs markedly from the generic guarantee to free movement of EU citizens, for instance under the Long-Term Residents Directive and the Blue Card Directive (see Thym, Directive 2003/109/EC, Articles 14-23; and HerzogSchmidt/Lehner, Directive 2009/50/EC, Articles 18-19), while comparatively generous 60 Cf. Article 22(1) TFEU; similarly, see Wilderspin, Article 79 TFEU, paras 18-19; for a different position, see Muzak, Article 79 TFEU, in: Mayer/Stiiger (eds), Kommentar zu EUV und AEUV (Maunz, looseleaf: 141"' edn, 2012), para 13. 61 On the policy context, see Verschueren, 'Employment and Social Security Rights of Third country Labour Migrants under EU Law. An Incomplete Patchwork of Legal Protection', EJML 18 (2016), p. 373, 399-406; as well as Commission Communication, COM(2012) 153. 62 See ECJ, C-431/11, United Kingdom v. Council, EU:C:2013:589, paras 49-64; EC}, C-656/11, United Kingdom v. Council, EU:C:2014:97; Rennuy/van Elsuwege, 'Integration without membership and the dynamic development of EU law: United Kingdom v. Council (EEA)', CML Rev. 51 (2014), p. 935, 944-948; and Garda Andrade, EU External Competences, p. 185-191. 63 See ECJ, C-81/13, United Kingdom v. Council, EU:C:2014:2449, paras 48-58. 64 See ECJ, C-81/13, United Kingdom v. Council, EU:C:2014:2449, paras 40-46, which concluded that these conditions were not met in the case of Turkey. 65 While longer stays are covered by Article 79 TFEU. rules on travel within the Schengen area for shorter periods, in particular for touristic reasons, are covered by Article 77(2)(c) TFEU; sec Thyrn, Legal Framework for Entry and Border Controls, MN 18.

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Chp.7 rules exist under the Students and Researchers Directive (see Lehner/Gies, Directive (EU) 2016/801, Articles 27-32). 66 Express reference to 'conditions' in the Treaty text accentuates the absence of a constitutional guarantee of free movement for third country nationals (see below MN 35). It remains the decision of the legislature to decide whether and under which conditions intra-European mobility shall be allowed. It should be remembered, moreover, that the asymmetric geographic scope of the EU immigration acquis (see above MN 5) entails that statutory mobility guarantees do not extend to all Member States, i.e. Ireland and Denmark are usually excluded, as was the United Kingdom before Brexit. c) Illegal Migration. Notwithstanding repeated criticism, Article 79(1) TFEU obliges 19 the EU institutions to adopt 'enhanced measures to combat illegal immigration' (emphasis added), thereby reiterating a policy priority that has defined EU action ever since the Tampere Programme (see above MN 6). Corresponding measures can include both legislation and operative instruments of an executive or financial nature (see above MN 9).67 The wording leaves no doubt that the Treaty can include both the prevention of 'illegal immigration' (entry) and the termination of 'unauthorised residence'. While Article 79(2)(a) TFEU covers the termination of legal residence status (see above MN 12), Article 79(2)(c) TFEU applies to those entering or residing without authorisation, either because they never had a residence permit or because it was revoked or expired. 68 The latter scenario is better known under the notion of 'oventayen', designating people who do not leave EU territory after the expiration of their residence permit. The well-known Return Directive 2008/115/EC is by far not the only EU instrument concerning illegal immigration and unauthorised residence. 69 Article 79(2)(c) TFEU embraces domestic measures to counter illegal residence, such as the contents of the Employer Sanctions Directive 2009/52/EC, which contributes to the overall objective of both 'fair treatment' and 'enhanced measures to combat illegal migration' enshrined in Article 79(1) TFEU (see above MN 6, 8). 70 By contrast, instruments related to border controls are covered by Article 77 TFEU (see Thym, Legal Framework for Entry and Border Controls, MN 16-17). The express reference to 'removal and repatriation' clarifies, in contrast to earlier 20 formulations,7 1 that rules on deportation and pre-removal detention are covered by Article 79(2)(c) TFEU, which served as the central legal basis for the Return Directive. Of course, these rules have to comply with human rights (see Thym, Legal Framework for Entry and Border Controls. MN 16-17). They will be discussed in detail in the section on the Return Directive (see Mananashvili/Moraru, Directive 2008/115/EC, Article 15-17). In light of the open character of the term 'measure' (see above MN 9), the competence covers operative or financial support for national return policies, for instance on the basis of the former Asylum, Migration and Integration Fund 72 or the Frontex Regulation (see Ryan, Regulation (EU) 2019/1896, Articles 48-53). In light of the Trellty objective of efficient migration management 'at all stages' (see above MN 7), Article 79(2)(c) TFEU covers support for return operations and other measures to 66 For an overview, see Iglesias Sanchez, 'Free Movement of Third Country Nationals in !he European Union?', ELI 15 (2009), p. 791-805. • 7 Similarly, see Kotzur, Article 79 TFEU, para 5; and Peers. EU Justice, p. 450-451. 68 See Peers, EU Justice, p. 450-451. •• For an overview, see Klarmann, Illegalisierte Migration, ch. 5; and Meneus Queiroz, Illegally Staying in the EU. An Analysis of Illegality in EV Migration Law (Bloomsbury/Hart, 2018), ch. 3. 70 See Muller-Graff, Article 79 TFEU, para 33-35. ' 1 Article 63(3)(3) EC Treaty as amended by the Treaty of :-lice of 26 February 2001 (OJ 2006 C 321 E/ 37) had referred to removals only. 72 Cf. Regulation (EU) No 516/2014 (OJ 2014 L 150/168), which expired in 2020.

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prevent or react to irregular movements in third states, in particular neighbouring countries, whenever there is a linkage with migratory movements towards the European Union, since measures to combat illegal immigration under Article 79 TFEU are not confined to the wider border are, unlike for Article 77 TFEU (see Thym, Legal Framework for Entry and Border Controls, MN 16-17). Article 79(2)(c) TFEU finally permits databases (see Thym, Legal Framework for Entry and Border Controls, MN lOa, 17b), which need to comply with data protection standards (see Thym, Constitutional Framework, MN 37 O. 21

d) Trafficking in Human Beings. There is little doubt that the competence to combat illegal migration covers measures to combat trafficking in human beings, thereby contributing to the overall objective of adopting enhanced measures on_ illegal immigration (see above MN 19). Moreover, Article 79(2)(a) TFEU allows for the adoption of legislation concerning residence permits for victims of human trafficking (see above MN 13). It was superfluous therefore, from a strictly legal perspective at least, that the European Convention drafting the erstwhile Constitutional Treaty provided for an express competence to combat trafficking in persons in Article 79(2)(d) TFEU, thereby highlighting the political significance of the issue in the eyes of the drafters of the Treaty. 73 Since the Convention established in parallel an express legal basis for criminal measures in Article 83(1) TFEU, the earlier dispute about the scope of corresponding EU competences (see Kau, Human Trafficking Directive 2004/81/EC Article I MN 6-7) has lost its relevance. Migration-related measures will continue to be based on Article 79 TFEU, while criminal matters are covered by Article 83 TFEU. 74 It should be noted that the discunive visibility of measures against human trafficking, both in the Treaty text and policy debates, is criticised for promoting control-oriented policy instruments and for labelling migrants as victims and objects.75 3. Readmission Agreements (Article 79(3) TFEU)

22

Efficient and effective migration management often depends upon the cooperation of third states, in particular in so far as removals and repatriation are concerned. Notwithstanding the obligation under customary international law to enable the return of nationals,76 practical cooperation is often flawed and presents a major reason for the mismatch between enforceable return decisions and actual returnsn - a discrepancy that readmission agreements with rules and procedures for effective cooperation are meant to counter. Previous uncertainties over the existence and scope of corresponding EU competences were remedied by the introduction of an express legal bue78 73 The Convention Presidium did not give reuons for the initial proposal in doc. CONV 836/03, p. 83, available online at http://european-convention.curopa.eu (last accessed I June 2021]. "Similarly, Peers, EU Justice, p. 451--452. 75 See Klannann, lllegalisiene Migration, ch. 5.4.; Ub.kar, 'The Rhetoric of European Migration Policy and Its Role in Criminalization of Migration', in: Kogmiek Salamon (ed), Cawes and Consequences of Migrant Criminalization (Springer, 2020), p. 91, 102-105; and Moreno-Lax, 'The EU Humanitarian Border and the Securitiz.ation of Human Righu', Journal of Common Market Studies 56 (2018), p. 119, 121-122. 76 See Hailbronner, 'Readmission Agreements and the Obligation on States under Public International Law to Readmit their own and foreign Nationals', 2.eitschrift fur auslandisches offentliches Recht und Volkerrecht/Heidelberg Journal of International Law 57 (1997), p. 1, 2-5; and Coleman, Readmission Policy, ch. 2. 77 Cf. the Commission Communication, COM(2014) 199. 71 Arguably, an 9press provision was unnecessary, since Article 79(2)(c) TFEU can be read to comprise an implied treaty-making power in line with the more recent ECJ case law on external competences, which wa.s, however, less developed at the time of the Treaty of Lisbon; cf. Muzak,

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Chp.7 designating a shared competence79 in Article 79(3) TFEU by the Lisbon Treaty. The codification of the so-called ERTA doctrine in Article 3(2) TFEU does not change this conclusion, since the Return Directive regulates the conditions for removals, not cooperation with third states and corresponding practical arrangements. 80 The procedure for the negotiation and conclusion of EU readmission agreements follows Article 218 TFEU, which requires the consent of the European Parliament.BI This implies that Member States retain the power to conclude national radrnluion agreements with thlnl states as long as the EU institutions have not decided to exercise their supranational competence.B2 A dominant feature of cooperation with third states on return in recent years has 22a been the prolifention of informal cooperation frameworks, which cannot be classified as an agreement under public international law, but are covered by Article 79(3) TFEU nevertheless a maiorem ad minus. Similar mechanisms with varying degrees of detail and political commitment were agreed upon with many third states.83 Reasons for the switch towards informality are manifold: they include swift action instead of lengthy ratification, the predominantly operational character of any return policy,84 political preference for executive action instead of parliamentary involvement and public scrutiny as well as public opinion in partner countries, not least in Africa, where cooperation with European states in the field of return is often highly unpopular. 85 While informal cooperation frameworks are not legally binding, individuals can invoke Article 79 TFEU, in: Mayer/Stoger (eds), Kommmtar zu EUV und AEUV (Maunz. looseleaf. 141 th edn, 2012), para 23; see also Neframi, 'L'aspect ateme de l'espac.e de libene, de securite et de justice', in: Flacsch-Mougin/ROS5i (eds), La dimension u:tmeure de l'espace de liberte, de 5'nuite et de justice de /'Union europemne apres le Traite de Lisbonne (Bruylant, 2013), p. 509, 518-520. ,. The shared character flows from the formulation 'may' (French: peur, German: kann) and the absence of readmission agreements &om the list of exclusive powers in Anicle 3( I) TEU; see Wilderspin, Article 79 TFEU, para 31; Miiller-Graff, Article 79 TFEU, para 39; Iglesias Sanchez, 'Migration Agreements between the European Union and Third States', in: Goodwin-Gill/Weckel, 21" Century, p. 167, 176-177; Billet, Readmission, p. 60-63; and Coleman, Readmission Policy, p. 75-84; an aclusive character had been discussed, for the previous Treaty regime, by Kuijpcr, 'Some Legal Problems Associated with the Communitarization of Policy on Visas, Asylum and Immigration under the Amsterdam Treaty and Incorporation of the Schengen Acquis', CML Rev. 37 (2000), p. 345, 362 . .., The different regulatory focus of the rules in the Return Directive 2008/ I I 5/EC and readmission agreements implies that there is no pre-emptive effect resulting in external adusivity in line with ECJ case law; see Garcia Andrade, EU External Competences, p. 169-173; and Billet, Readmission, p. 60-63; against Van Vooren, The Principle of Pre-emption after Opinion 1/2003 and Coherence in EU Readmission Policy', in: Cremona/Monar/Poli (eds), 71u! Extunal Dimension of the European Union's Area of Freedom, Security and Justice (Lang. 2011), p. 163, 176-183. 81 Given that Anicle 79(3) TFEU read in conjunction with Article 79(2)(c) TFEU concerns an area where the ordinary legislative procedure applies internally, the European Parliament must give its consent in line with Article 218(6)(a)(v) TFEU; similarly, Billet, Readmission, p. 63-65. 82 In line with ECJ case law, the adoption of a negotiation mandate pre-empts the conclusion of bilateral treaties; see Thym, Legal Framework for Entry and Border Controls, MN 14; and Billet, Readmission, p. 60-63. ll See Eisele, The Return Directive 2008/115/EC. European Implementation Assessment, PE 642.840, June 2020, p. 135-264, including a valuable overview of existing bilateral and supranational schemes of an informal character on p. 243-264; see also Cassarino, lnformalizing EU Readmission Policy, in: Ripoll Sernnt/Trauner, Routledge Handbook, p. 83-98. 84 Note that countries of origin are obliged to take back own nationals anyway (see above MN 22), i.e. formal readmission agreements do not create such a legal obligation in the first place, but rather aim at rendering it effective in practice; that objective can similarly be achieved by means of informal arrangements provided that they work in practice, something also binding agreement cannot guarantee. 115 See Cassarino, lnforrnalizing EU Readmission Policy, in: Ripoll Servent/Trauner, Routledge Handbook., p. 83, 90-93; and Sachverstiindigenrat deutscher Stiftungen filr Integration und Migration (SVR), Gemein.sam gestalten. Migration aus Afrika nach Europa, Jahresgutachten 2020, p. 169-171, available online at hnps://www.svr-migration.de/jahresgutachten [last accessed 1 June 2021).

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statutory guarantees under the Return Directive as well as human rights standards against their removal to countries of origin or transit in the framework of infonnal arrangements. Informality cannot evade constitutional safeguards. Similarly, nonbinding cooperation on return is subject to basic institutional constraints,- since the Commission needs to involve the Council in important policy choices (see Thym, Legal Framework for Entry and Border Controls, MN 29). 23 Whenever the EU institutions conclude combined readmission and visa facilitation agreements, Article 79(3) and Article 77(2)(a) TFEU can serve as a dual legal basis. If the EU institutions decided to move towards more ambitious mobility partnerships, which at present remain soft law instruments (see below MN 63), Article 79(2)(a) TFEU would have to be used as an additional legal basis (see above MN 15a). It is legitimate to treat third country nationals differently in this context; the ECJ recognised that reciprocal contractual relations can justify differential treatment (see below MN 40a). When negotiating with third states or adopting internal measures, the EU institutions are bound to coordinate their migration-related instruments with other external policies such as development cooperation in order to guarantee policy coherence and realise the broader Treaty objectives for external action (see Thym, Constitutional Framework, MN 7). 86 Corollary rules on return in trade or association agreements are covered by relevant other Treaty competences for external action and there is no need to activate Article 79 TFEU (see Thym, Legal Framework for Entry and Border Controls, MN 28b). The same applies to the integration of return policy into development cooperation, even though it can be difficult to determine the centre of gravity in tenns of contents and purposes - a debate that is complicated by intra-institutional rivalry about policy priorities among different ministries of the Member States or Directorates General of the Commission. 87 In case we conclude that development cooperation cannot cover control-oriented externalisation practices in the European interest, Article 79(2)(c) TFEU can be activated (see above MN 20). 4. National Integration Policies (Article 79(4) TFEU) 24

Article 79(4) TFEU covers incentives and support for national integration policies 'excluding any harmonisation of the laws and regulations of the Member States.' Corresponding formulations have been wed repeatedly over the past decades on the occasion of Treaty amendments in order to designate areas in which the EU institutions are not allowed to harmonise national legislation. 88 Article 79(4) TFEU should be classified, therefore, as a support and coordination competence in line with Article 2(5) TFEU. 89 The introduction of the new and restrictively fonnulated provision in Article 79(4) TFEU responded to years of sometimes protracted disputes about the permissibility of an autonomous EU integration policy.90 This resulted, among other things, in the adoption of the Common Basic Principles (CBP) for immigrant integration policy as a resolution of the Council together with representatives of the governments to emphasise the limited scope of EU competences. 91 Today, such complex ,. On the objectives of external action, see Article 21 TEU; on the necessary policy coherence, see Neframi, 'L'aspect cxterne de l'espace de libene, de securite et de justice', in: Flaesch-Mougin/Rossi (eds), LA dimension uthieure de l'espaa de liberte, de securitt et de jwtice de /Vnion europemne apres le Traiti de Lisbonne (Bruylant, 2013), p. 509, 525-531; and Kotzur, Anicle n TFEU, para 10. "See Garcia Andrade, EU External Competences, p. 178-182. 11 See, by way of example, Articles 165(4), 166(4), 167(5) and 168(5) TFEU. 89 See Muller-Graff, Anicle 79 TFEU, para 43. 90 See Carrera, In Search, ch. 3. 91 Cf. Council doc. 14615/04 of 19 November 2004.

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Chp. 7 constructions are no longer necessary, since Article 79( 4) TFEU provides for an unequivocal supranational competence, which, however, excludes harmonisation. 92 Measures that can be adopted on this basis include soft law measures, institutional arrangements such as contact points, as well as funding. including the former Asylum, Migration and Integration Fund.93 These must comply with the principle of subsidiarity (see above MN 9). It should be noted that the prohibition of harmonisation concerns measures adopted 2S on this basis only; Article 79(4) TFEU does not prevent recourse to other legal basesas the ECJ decided in other scenarios concerning the delimitation of legal bases, some of which excluded harmonisation.94 The same applies to the interaction of Article 79(4) TFEU and more specific legal bases, such as Article 79(2)(a), (b) TFEU, which apply whenever the centre of gravity of an instrument concerns first admission or rights of migrants residing legally. These abstract considerations entail that EU legislation can include rules on immigrant integration, such as the requirement for integration measures in Article 7(2) Family Reunification Directive 2003/86/EC.95 Moreover, the broad meaning of the term 'integration' in EU immigration law indicates that provisions that are not officially designated as integration instruments can also have a profound impact upon immigrant integration, such as economic self-sufficiency requirements, statutory equal treatment provisions or labour market access (see below MN 44a). In light of the principle of subsidiarity (see above MN 9), it is questionable whether the EU has the competence to prescribe in depth the contents of national integration measures, such as the curriculum of integration courses. 96

5. Access to the Labour Market (Artide 79(5) TFEU) Before the entry into force of the Treaty of Lisbon, the scope of supranational powers 26 for economic migration had been a controversial topic. 97 While some commentators rejected the existence of a supranational competence,98 others claimed that the Treaty provisions on social policy should be activated. 99 This debate became moot when the 92 Nonetheless, the Council and the Representatives of the Governments of the Member States continued to adopt jointly the Conclusions on the Integration of Third Country Nationals Legally Residing in the EU, Council doc. 9905/1/14 of 26 May 2014. 9 J See Adam/Thym, 'Integration', in: De Bruycker/De Somer/De Brouwer (eds), From Tampere 20 to Tampere 2.0. Towards a new European consensus on migration (EPC, 2019), p. 73, 76-n; and Regulation (EU) No 516/2014 (OJ 2014 L 150/168), which expired in 2020. 04 See ECJ, Hungary & Poland v. European Parliament & Council, C-620/18 & C-626/18, EU: C:2020:1001, paras 65-69, 77-85; and ECJ, Germany v. Council & European Parliament, C-376/98, EU: C:2000:544, para 77-79. 95 Wilderspin, Article 79 TFEU, para 34 questions the correct delimitation of legal bases, if we conceive the Family Reunification Directive and the Long-Term Residents Directive to be directed at promoting migrant integration, even though that description in the case law may be simplistic; see Thym, LongTerm Residents Directive 2003/109/EC, Article 1, MN 16-17. 96 See Hailbronner, Immigration and Asylum, p. 89-90; and ter Steeg. Einwanderungskonzept, p. 464-564. 97 Discwsions were further complicated by an opening clause in Article 63 EC Treaty as amended by the Treaty of Amsterdam of 2 October 1997 (OJ 1997 C 340/173), which was discontinued by the Treaty of Lisbon. ""Cf. HailbroMer, 'European Immigration and Asylum Law under the Amsterdam Treaty', CML Rev. 35 (1998), p. 1047, 1049-1050; for a restrictive position, see Knauff, 'Europilische Einwanderungspolitik.: Grundlagen und aktuelle Entscheidungen', Zeitschrift fur Europarechtliche Studien 2004, p. 11. 19-23; more generoua was ter Steeg. Einwanderungskonzept, p. 326-333. 99 See Brinkmann.' The Immigration and Asylum Agenda', ELI 10 (2004), p. 182, 187-188; and Guild and Peers, 'Out of the Ghetto?' in: ibid/Rogers (eds), EU Immigration and Asylum Law. Text and Commentary (Martinus Nijhoff, Leiden 2006), p. 81, 101-104.

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Lisbon Treaty stated explicitly that the EU legislature can establish rules on economic

migntion subject to the caveat in Article 79(5) TFEU (see above MN 12). The latter provision was introduced by the Presidiwn of the European Convention drafting the erstwhile Constitutional Treaty which later became the Treaty of Amsterdam to·appease concerns among political actors within Germany that the EU would interfere with labour migration policies, which were the object of heated domestic political battles in the EU's biggest Member State at the time. 100 It should be noted that the scepticism about EU involvement in labour migration can be traced back to legal battles over the scope of Community competences in the 19805. 101 It is clear from the wording of the latter provision that the exemption concerns only third country nationals 'coming from third countries ... in order to seek work' and therefore does not encompass the labour market access of those who are admitted for other purposes, such as family members or students (see above MN 17). Article 79(5) TFEU concerns national rules on economic migntion sensu stricto, i.e. admission of the highly qualified, seasonal workers or other foreigners seeking employment. 102 It covers those seeking work in the same way as it concerns third country nationals who already have a job offer when applying for entry, 10l provided they come from outside the European Union. Mobility within the single market is not affected due to the clear wording. 104 27 A comparison of the different language versions of Article 79(5) TFEU shows that the exemption concerns national rules 'to determine volwnes of admission' (French: fixer les volumes d'entree; German: wie viele ... einreisen du,fen) without indicating precisely how volumes of admissions are to be determined at the national level. Some argue that it should be understood to cover domestic 'quota schemes' for workers only. 105 In light of the general wording and the interpretative principle of effet utile (see Thym, Constitutional Framework, MN 16) such narrow interpretation does not convince, since it would render the provision effectively meaningless for Member States without immigration quotas. 106 It should be read, instead, to require the EU legislature to allow a certain ftaibility for Member States in the regulating economic migration. EU directives can establish individual rights (see Thym, Constitutional Framework, MN 15), but the conditions for the existence of these rights prescribed in EU legislation should provide some leeway for Member States to influence the volumes of admission through national immigration law. Directives can, for instance, allow Member States to apply labour market tests, quota systems or similar requirements. 107 Notwithstanding these doctrinal effects, Article 79(5) TFEU 100

See Niemann, Explaining Decisions in the European Union (CUP, 2006), p. 252-257-259.

See ECJ, Germany, France, the Netherlands, Denmark and the United Kingdom v. Commission, 281/85, 283/85-285/85 & 287/85, EU:C:1987:351. 101 Similarly, sec Peers, EU Justice, p. 330-331; Progin-Thcuerkauf, 'Artikel n AElJV', in: von der Groeben/Schwane/Ha1je (eds), Europiiisches Unionsrecht, VoL 2, ?'h edn (Nomos, 2015), para 36; and LadenburgerNerwilghen, 'Policies Relating 10 the Area of Freedom, Security and Justice', in: Amato/ Bribosia/de Witte (eds), Genese et destinh de la Constitution euroJl'enne (Bruylant, 2007), p. 743, 764. 101 ln contrast to EU citizens, legislation on third country nationals does not usually provide for a statutory right to enter EU territory in order 10 seek work at present; it usually requires a job offer. 104 See Wilderspin, Article 79 TFEU, para 72. 105 See Peers, EU Justice, p. 330-331; Bast. Aufenthaltsrecht und Migratiorusteuerung (Mohr Siebeck. 2011), p.149-153; and Weill, Anide79 TFEU, para 48. 1°" Most Member Stales to which EU legislation on immigration applies in regular circumstances (not: the United Kingdom, see above MN 5) did not have immigration quotas for migrant worken al the time when the provision was drafted, while Germany, which insisted on the introduction of the caveat, was considering the introduction of a domestic quota at the time of debates in the European Convention, which first drafted today's Anide 79(5) TFEU, although the project was abandoned later. 107 See, by way of example, Anicles 6, 8(2) Blue Card Directive 2009/50/EC or Articles 5(2), 7 Seasonal Worken Directive 2014/36/EU. 1• 1

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Chp. 7 presents itself as a symbol inviting the EU institutions to proceed carefully when harmonising rules on first admission for economic purposes. 108

III. Overarching Principles The Treaty rules on the area of freedom, security and justice contain provisions with 27a a horizontal character, which are described in the introductory chapter on the policy field to which they are most relevant. Thus, Article 72 TFEU on the maintenance of law and order, which can have an impact on immigration policy as a possible justification for not complying with secondary legislation in exceptional cases, and external competences for cooperation with third states are described in the context of entry and border controls (see below MN 25-30), while Article 80 TFEU on solidarity is an integral part of the asylum chapter (see Thym, Legal Framework for EU Asylum Policy, MN 41-44). General principles of interpretation, proportionality, statutory provisions on more favourable domestic rules and requirements of primary law for domestic implementation are discussed in the general introduction (see Thym, Constitutional Framework, MN 10-37). Comments on the distinction between Union citizens and third country nationals, the meaning of the 'public policy' exception and the principle of abuse can be found below. I. Free Movement of Union Citizens

The emergence of distinct Treaty regimes for Union citizens and third country 28 nationals was a gradual process. Originally, the Treaty of Rome knew neither 'third country nationals' nor 'Union citizens', but only 'workers.' 109 It would be wrong, however, to assume that the founding fathers of the European project wanted to establish universal free movement irrespective of nationality. During negotiations, there was agreement that only nationals of Member States should be covered; an explicit nationality clause was discarded in reaction to Franco-Italian disputes over the status of workers from Algeria and German concerns about nationals from communist East Germany. 110 As a result, immigration law towards third country nationals remained a 'sovereign' prerogative of the Member States until the Schengen cooperation and the Treaty of Maastricht brought it within the ambit of the EU institutions (see above MN l). At the time of the Maastricht Treaty, the introduction of distind Treaty regimes for the new category of 'Union citizenship' 111 and so-called 'nationals of third countries' 112 was a parallel development. It is imponant to understand that the distinction between Union citizens and third 29 country nationals in the EU Treaties is more than semantic. It reflects a basic constitu108 SC'e Iglesias Sanchez, 'Migration Agrttmc:nts bc:twc:c:n the European Union and Third States', in: Goodwin-Gill/Weckel, 21" Century, p. 167, 171-173. 100 Cf. Groenc:ndijk, 'Categorizing Human Beings in EU Migration Law', in: Bonjour/Rea/Jacobs (eds), The Others in Europe (lnstitut d'ttudes europec:nnes, 2011), p. 21, 25-31. 110 Sec: the historic study by Goc:dings. Labor Migration in an Integrating Europe (SDU Uitgevers, 2005), p. 128-135; against this background, the accusation that the limitation of the frc:c: movement of workers 10 Union citizens was the result of 'revisionist interpretation' ignores the historic context; sec:, however, Guild/Pc:c:rs, 'Out of the Ghetto?', in: ibid./Rogen (eds), EU Immigration and Asylum Law. Text and Commentary (Martinus Nijhoff, Leiden 2006), p. 81, 114. 111 Union citizenship was fint introduced by Article 8 EC Treaty as amended by the Treaty of Maastridit (OJ 1992 C 224/36). Ill Article K. l EU Treaty, ibid.; the: formulation 'nationals of third countries' was gradually replaced by third country nationals.

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tional cleavage at the heart of the European project in so far as it designates a basic distinction between the free movement rights of Union citizens and the absence of corresponding guarantees for third country nationals enshrined at Treaty level (see below MN 33-36). In a supranational legal order based on the rule of law, such constitutional distinction matters, since Treaty guarantees must be respected by the EU legislature; the ECJ can enforce the free movement rights of Union citizens against the opposition of the Member States. 113 It is well known that judges in Luxembourg regularly had recourse to the constitutional guarantee of free movement 114 and the subsequent introduction of Union citizenship 115 to enhance citizens' rights by means of dynamic interpretation, even though judges have emphasised the outer limits of free movement and equal treatment in recent years. 116 Corresponding free movement case law concerns the status of workers, the self-employed, service recipients, students and other Union citizens with sufficient resources. 117 Secondary legislation with detailed rules can be found in the Citizenship Directive 2004/38/EC. Regulation (EU) No 492/2011 on the freedom of movement for workers and the Social Security Coordination Regulation (EC) No 883/2004.1 18 30 It is settled case law that the application of free movement rights requires a crossborder element as a matter of principle. Union citizens living in the state of which they have the nationality cannot usually rely on the fundamental freedoms; to do so requires them to move to another Member State or to have lived there for an extended period.1 19 This requirement of a cross-border element entails that purely internal situations are not covered by the free movement guarantees for Union citizens.1 20 This can result in a phenomenon called reversed discrimination if the fundamental freedoms accord certain privileges to Union citizens living abroad that the state of residence is not willing to extend to its own nationals who are not covered by the fundamental freedoms as a consequence of the purely internal rule.1 21 Free movement experts rightly complain that corresponding case law is highly complex 122 - and some have argued that the purely internal rule should be abandoned so as to abolish the phenomenon of reverse discrirnination. 123 The ECJ has, rightly in my view, 124 not 111 On the ambiguous relationship between policy dn"Clopments and the ECJ ca,c law in practice, sec Thym, The Evolution of Citizens' Rights in Light of the EU's Constitutional Development', in: Thym, Questioning EU Citizenship, p. 111-134; and Dougan, The Bubble that Burst', in: Adams et al. (eds), Judging Europe's Judges (Han, 2013), p. 127, 145-153. 114 Cf., by way of example, ECJ, Bouchneau, 30m, EU:C:1977:172, para 33; and ECJ, Orfanopoulos and Olivieri, C-482/01 and C-493/01, EU:C:2004:262, para 65. 115 Cf. ECJ, Baumbast de R, C-413/99, EU:C:2002:493, paras 81-82. 116 See in particular ECJ, Dano, C-333/13, EU:C:2014:2358; ECJ, Alimanovic, C-67/14, EU:C:2015:597; Nie Shuibhne, 'Limits Rising. Duties Ascending', CML Rev. 52 (2015), p. 889-937; and Amulai, Transfiguring European Citizenship', in: Kochenov (ed), EU Citizmship and Federalism. The Role of Rights (CUP, 2017), p. 178-203. 117 For an overview, see Boeles/den Heijer/Lodder/Wouters. European Migration Law, ch. 2; and any textbook on EU law. 118 See the section on abbreviations and Regulation (EU) No 492/2011 (OJ 2011 L 141/1). 119 In situations. in which the cross-border element is not evident, one has to assess. in line with ECJ case law, whether national rules in question amount to a 'restriction' of free movement rights; see ECJ, 0. de B., C-456/12, EU:C:2014:135, paras 37-54. 120 Settled case law since ECJ, Uecker de Jacquet, C-64 & 65/96, EU:C:1997:285, paras 23-24. 121 See O'Leary, 'The Past. Present and Future of the Purely Internal Rule in EU Law', in: Dougan et al. (rds), Empowerment and Disempowr:rment of the European Citizen (Han, 2012), p. 36-71. 112 The complexity can be es.plained, in part at least, with procedural uncertainties, see Iglesias Sanchez, 'Purely Internal Situations and the Limits of EU Law', EuConst 14 (2018), p. 7-36. m Cf. Tryfonidou, Reverse Discrimination in EC Law (Kluwer, 2009), ch. 4; and Nie Shuibhne, 'Free movement of persons and the wholly internal rule: time to move on?', CML Rev. 39 (2002), p. 731, 741-760. 114 See Thym, 'frontiers of Citizenship', in: Kochenov (ed), EU Citizenship and Federalism. The Role of Rights (CUP, 2017), p. 705, 719-722.

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Chp.7 followed the argument. 125 It should be noted, however, that the purely internal rule applies to the Treaty-based fundamental freedoms only; auondary legislation usually coven internal questions without a cross-border element, 126 including directives and regulations on border controls, visa, asylum and immigration (see below MN 33c). Whenever free movement rules do not apply and if there is no secondary legislation, national constitutions and the European Convention on Human Rights may be relied upon. Unfortunately, the overall picture is blurred by a grey area of overlap between rules 31 for Union citizens and third country nationals, since family memben of Union citizens with the nationality of a third state can rely indirectly on the free movement provisions in certain circumstances, 127 for instance when an Italian national is married to a Tunisian with whom she lives in France. Although the EU Treaties do not mention family members from third states explicitly, they benefit from specific rights in secondary legislation and ECJ case law. 128 The Court of Justice consistently interprets the free movement guarantees of Union citizens to embrace spouses and other family members by means of a legal reflex in the form of'derived rights' 129 whenever the denial of family reunion can be construed as a restriction to the free movement of Union citizens. In a series of judgments in the 2000s, judges in Luxembourg increased the level of protection; 1.JO this process culminated in the Ruiz Zambrano judgment and follow-up rulings that seemed to considerably enhance the level of protection at first, although the ECJ later clarified that it concerned mainly third country national family members of minor Union citizens. 131 In cases of conflict, the rights of third country national family members of Union citizens prew.il over national immigration law or secondary EU legislation, since they emanate, in the form of derived rights, from constitutional free movement guarantees enshrined at Treaty level. 132 This is particularly relevant for entry rules and visa requirements (see Epiney/Progin-Theuerkauf, Schengen Borders Code Regulation (EU) 2016/399, Article 3). A specific scenario of overlap between citizens' rights and the immigration status of 31a third country nationals concerns posted workers who are sent by their employer to carry out a service abroad on a temporary basis. The ECJ holds the freedom to provide 125 In addition to the case law on the fundamental freedoms. it did not consider reverse discrimination to be incompatible with the principle of equality, since 'since no discrimination can arise in legal situations which are not comparable'; see ECJ, Mura, 22/77, EU:C:1977:154, para 9. 126 By ways of eumple, most directives on consumer or environmental protection cover purely internal and cross-border dements. 127 See Berneri, Family Reunification, ch. 3; and Thym, 'Family as Link", in: Verschuerc:n (ed), Residence, Employment and Social Rights of Mobile Persons. On How EU Law Defines where they Belong (lntersentia, 2016), p. 11-38. 121 See, in particular, today's Articles 5 to 18 Citizenship Directive 2004/38/EC; and Article 10 Regulation (EU) No 492/2011 (OJ 2011 L 141/1). 129 EQ. Dereci et al, C-2.56/11, EU:C:2011:734, para 55; for a taxonomy of different categories see Barrett, 'Family Matters', CML Rev. 40 (2003), p. 369-421. 110 See Spaventa, 'From Gebhard to Carpenter. Towards a (non-)Economic European constitution', CML Rev. 41 (2004), p. 743-773; Epiney, 'Von Alcrich bis Metock', Europarecht (2008), p. 847-583; and Costello, 'Case !'lote: Metock', CML Rev. 46 (2009), p. 587, 611-614. 131 The consequences of ECJ, Ruiz Zambrano, C-34/09, EU:C:2011:124 were watered down considerably in follow-up rulings; see ECJ, Dereci et al, C-256/11, EU:C:2011:734; and ECJ, 0 & S. C-356/11 & C-357/11, EU:C:2012:776; for further comments. see Berneri. Family Reunification, ch. 4; Reynolds, 'Exploring the "Intrinsic Connection" between Free Movement and the Genuine Enjoyment Test', E.L Rev. 38 (2013), p. 376-392; and Thym, 'Family as Link', in: Verschueren (ed), Residence, Employment and Social Rights of Mobile Persons. On How EU Law Defines what they Belong (Intersentia, 2016), p. 11, 25-28. . 132 The precedence of free movement law over the legislative border control regime is recognised in the ECJ case law, see Thym, Legal Framework for Entry and Border Controls. MN 16.

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services in the internal market encompasses the permission to send employees across borders to perform a contract, irrespective of whether the posted workers are Union citizens or not m An example are Ukrainians working for a Polish company which signed a contract to perform plumbing work at a construction site in Sweden. In practice, the case law means that Member States cannot apply regular immigration laws to posted workers, insofar as the freedom to provide services under Article 56 TFEU requires them to authorise the entry and stay of the foreign workers. The rules on posted workers under internal market law had consequences the presence of natural persons abroad under Mode IV of the GA TS did not have due to explicit exceptions enshrined in world trade law (see Thym, Legal Framework for Entry and Border Controls, MN 28b). Over the past three decades, there have been repeated legal and political disputes over the authority of receiving states to regulate the status of posted workers in terms of working conditions, social benefits and social security, which are usually higher in countries of destination than in countries of origin of the service provider.1}4 The EU legislature laid down uniform standards in the Posted Worken Directive 96/71/EC, which was updated last in 2018 135 - again after heated political controversies. 136 There is no directly comparable regime for service provision by companies from third states (as opposed to the posting of third country nationals within the EU's single market), even though debates on seasonal workers and intracorporate transferees follow similar patterns. 32 In recent judgments, the ECJ confirmed that we have to distinguish carefully, in cases of overlap, between the derived rights of third country national family members of Union citizens (see above MN 30-31a) and EU immigration and asylum instruments. 137 The official reasoning listed the Citizenship Directive 2004/38/EC and immigration instruments in parallel, thereby indicating that the Family Reunification Directive 2003/ 86/EC and the Long-Term Residents Directive 2003/109/EC present an alternative frame of reference.138 Judges have emphasised, moreover, that immigration instruments can be scrutinised in the light of human rights, which, in the EU context, are bound to follow the established case law of the ECtHR on the European Convention (see Thym, Constitutional Framework, MN 48). This reference to immigration law and human rights within the area of freedom, security and justice takes centre stage in cases not involving family members of Union citizens. In such 'pure' immigration scenarios, the intricate demarcation between citizens' rights and the human rights of foreigners, is ll1 See ECJ, Vander Elst, C-43/93, EU:C:1994:310, paras 18 et seq.; note that the freedom to provide services under Article 56 TFEU concerns temporary service provision as opposed to permanent establishment under Article 49 TFEU, to which the rules on posted workers do not apply directly. 134 Receiving states insisted on respect for domestic rules to prevent what they described as 'social dumping', while service providers (and their home states) favoured the application of their domestic rules; on underlying disputes, see ECJ, Arblade, C-369 & 376/96, EU:C:1999:575; Giesen, 'Posting. Social Protection of Workers vs. Fundamental Freedoms?', CML Rev. 40 (2003), p. 143-158; and Mussche/Lens, 'The ECJ's Construction of an EU Mobility Regime', Journal of Common Market Studies 57 (2019), p. 1247-1261. 1l5 Cf. Directive (EU) 2018/957 (OJ 2018 L 173/16). IJO See Zahn, 'Revision of the Posted Workers Directive. A Europeanisation Perspective', The Cambridge Yearbook of European Legal Studies 19 (2017), p. 187-210; and on earlier debates Barnard, 'Social Policy and the Shifting Sands of the Constitutional Order. The Case of Posted Workers', in: Amull/ Bamard/Dougan/Spaventa (eds), A Constitutional Order of States? Essays in EU Law in Honour of Alan Dashwood (Hart, 2011), p. 321-340. ll7 In its earlier case law, the ECJ had largely ignored the immigration dimension, see Thym, 'Towards "Real" Citizenship?', in: Adams et al (eds), Judging Europe's Judges (Hart, 2013), p. 155, 168-170. ua See, in particular, ECJ, Dereci et aL. C-256/11, EU:C:2011:734, paras 71-72; EC,, Iida, C-40/11, EU: C:2012:2405, paras 78-81; ECJ, K.A. et al, C-82/16, EU:C:2018:308, paras 44-46, 98-107; see also Thym, Constitutional Rationale, p. 714-716.

406

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Chp.7 irrelevant. The solution to 'pure' immigration cases follows the rules governing the area of freedom, security and justice - not EU citizenship.

2. Thinl Country Nationals It has been explained already that the Treaty of Lisbon reaffirmed the constitutional 33 self-sufficiency of the area of freedom, security and justice as a policy field in its own right with distinct rules and objectives independent of the single market (see Thym, Constitutional Framework, MN 5-7). The Treaty regime for justice and home affairs differs markedly from rules for Union citizens, since third country nationals cannot invoke far-reaching mobility guarantees with constitutional status in the EU Treaties (see above MN 29). In the words of the Court: Union citizens 'enjoy a status and rights entirely different from those' of third country nationals.139 The particularity of immigration and asylum law does not imply, however, that third country nationals have no constitutional assurances on their side. Third country nationals can invoke human rights, including the EU Charter (see below MN 51-58; and Thym, Constitutional Framework, MN 46 et seq.), which generally takes pride in presenting itself as an avantgarde catalogue. 140 When it comes to migration, however, the fundamental rights in the Charter principally reaffirm existing guarantees under the ECHR, 141 in the light of which the ECJ interprets statutory rules on immigration (see Thym, Constitutional Framework, MN 14). That is not to say that there are no limits, but the Charter does not generally pre-empt policy choices, especially when compared to the extensive guarantees of Union citizens to free movement and equal treatment. The legal differentiation between the EU's internal free movement regime and 33a immigration and asylum law towards third country nationals can be construed in different ways from a theoretical penpective. Firstly, experts of EU law and policy, in particular, have traditionally emphasised the role of EU integration in overcoming the dosed nation state, thereby rejecting traditional notions of unfettered state discretion over the entry and stay of foreigners. Against this background, it was expected that EU institutions would replicate the historic mission of taming the nation state by advancing the rights of third country nationals when the legislature started harmonising immigration and asylum laws (see above MN 1-3). 142 Union citizenship was perceived, in other words, as a model to transform prevailing conceptions of citizenship, in line with the initial enthusiasm for globalisation. 143 Secondly, the vision of Europe as a postnational n• ECJ, Ordre des barreauxfrancophones et germanophone et el, C-718/19, EU:C:2021:505, para 53; see also ECJ, Belgischer Staat, C-930/19, EU:C:2021:657, paras 71-76. 140 Recital 4 emphasises that the Charter strengthens the protection of fundamental rights 'in the light of changes in society, social progress and scientific and technological developments"; by way of illustration. see the prohibition of reproductive cloning in Art. 3(2)(d) or equal treatment of gays and lesbians in Art. 21(1). 141 For an overview, see Sadowski, "A Safe Harbour or a Sinking Ship?', European Journal of Legal Studies n (2019), p. 29-64; Ippolito, 'Migration and Asylum Cases before the Court of Justice of the European Union. Putting the EU Charter of Fundamental Rights to Text?', EJML 17 (2015), p. 1-38; Gro6. 'Migrationsrelevante Freiheitsrechte der EU-Grundrechtecharta·, Zeitschrift fur Auslilnderrecht (2013). p. 106-110; and Wiesbrock, Legal Migration. p. 208-229. 142 By way of example, see Guild, The Legal Elements of European Identity (Kluwer, 2004); Wiesbrock, 'Granting Citizenship-Related Rights 10 Third-Country Nationals', EJML 14 (2012), p. 63-94; and Jesse, '"Disrupting and Annoying". EU Citizenship and EU Migration Law Destroying Old Habits of National Migration Policy Malting', in: de Visser/van der Mei (eds), The Treaty on European Union 1993-2013 (lntersentia, 2013 ), p. 407-428. 10 See Soysal, Limits of Citizenship. Migrants and Postnational Membership in Europe (University of Chicago Press, 1994), p. 145-151; Sassen, Losing Control? Sovereignty in an Age of Globalization (Columbia UP, 1996), p. 88-99; Kostakopoulou, The Future Governance of Citizenship (CUP, 2008); and Maas, 'Migrant, States and EU Citizenship's Unfulfilled Promise', Citizenship Studies 12 (2008), p. 583-596.

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avant-garde had always contrasted with conventional intergovernmental accounts of the integration process emphasising the role of national governments in promoting state interests via supranational decision-making. 144 Arguably, intergovernmentalism has gained ground in recent years compared to the situation after the end of- the Cold War, 145 also reflecting the changing geopolitical environment.1 46 Thirdly, there is an external perspective, since the EU's double-pronged approach to cross-border movements by Union citizens and third country nationals coincides with the postcolonial aitique of the European project as an exclusionary undertaking, which, in an extreme variant, was presented by critics as a racist categorisation continuing earlier forms of colonial domination and exclusion. 147 33b In practice, statutory requirements enshrined in secondary legislation are often much more relevant than abstract human rights guarantees, not least since the EU legislature can establish individual rights to entry in secondary legislation even if the fundamental rights in the Charter or the ECHR do not mandate that outcome (see Thym, Constitutional Framework, MN 15). In the field of legal migration, individual rights have been recognised explicitly by the ECJ for family reunification, 148 students, 149 visas 150 and with regard to long-term residents. 151 It should be noted that the scope of statutory rights is determined in the legislative process; they are subject to the conditions and criteria laid down in secondary legislation. Corresponding provisions will be discussed in detail in the different chapters to this Commentary. In contrast to rules on Union citizens, legislation on third country nationals does not emanate from a holistic policy vision; 152 we are confronted with a patchwork of sector-specific rules, not least in the field of legal migration (see above MN 3) and with regard to social integration (see below MN 44). The idea of an overarching immigration code seems to have been abandoned for the time being (see above MN 3). On the whole, EU immigration laws occupy a middle ground between the theoretical visions for immigration law described above (see MN 33a), with secondary legislation and ECJ rulings fluctuating between a dynamic approach to migrants' rights and deference to the public policy objectives 153 - an intermediate position I have described elsewhere as the 'cosmopolitan 144 See Milward, Tht European Rescue of the Nation State, 2nd edn (Routledge, 2000); and Moravcsik, The Choice for Europe (Ithaka Press, 1998). 145 See Thym/Bornemann, 'Malaise and Recovery of the Schengen Area and Free Movement Rules

during the COVID-19 Pandemic', European Papers 5 (2020), 1143, 1151-1156; and Borg/Diez, 'Postmodern EU?', JCMSt. 54 (2016), p. 136-151. 146 Generally see Skordas, 'The European Union as Post-National Realist Power', in: Blockmans/ Koutrakos (eds), Research Handbook on the EU's Common Foreign and Security Policy (Elgar, 2018), p. 394-444. 147 See Thym, 'Deciphering the Role of Migration Law in the Social Construction of "Otherness"', in: Jesse (ed), European Societies, Migration, and tM Law. The 'Othm' amongst 'Us' (CUP, 2020), p. 323, 347-349; and the classic aitique of Balibar, We, the People of Europe? Rtjlections on Transnational Citizenship (Princeton UP, 2003); see also Kinvall, 'The Postcolonial Has Moved into Europe. Bordering, Security and Ethno-Cultural Belonging', Journal of Common Market Studies 54 (2016), p. 152-168. 141 See ECJ, European Parliament v. Counci~ C-540/03, EU:C:2006:429, paras 59-60. 149 See ECJ, Ben Alaya, C-491/13, EU:C:2014:2187, paras 23-27 with regard to the former Students Directive 2014/114/EC. 150 See, indirectly, ECJ, Koushkaki, C-84/12, EU:C:2013:862, paras 54-55. 151 See ECJ, Commission v. the Netherlands, C-508/10, EU:C:2012:243, para 68. 152 See Iglesias Sanchez, Constitutional Identity, p. 1803-1805; for an overview, see Eisele, The External Dimension of the ElI's Migration Policy. Different Legal Positions of Third-Country Nationals in the EU: A Comparative Perspective (Brill/Nijhoff, 2014); and Tewocht, Drittstaatsangehorige im europai.schen Migrationsrecht (Nomos, 2016), p. 273-407. m See Strumia, 'European Citizenship and EU Immigration', ELJ 22 (2016), p. 417, 421-437; and Acosta Arcarazo/Geddes, "fhe Development, Application and Implications of an EU Rule of Law in the Area of Migration Policy', Journal of Common Market Studies 51 (2013), p. 179-193.

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Chp.7 outlook' of EU migration law. 1s. The situation in slightly different in the field of asylum, where EU action is subject to much criticism (see Thym, Legal Framework for EU Asylum Policy, MN 4-5). Secondary legislation on border controls, visas, immigration and asylum - like most 33c other directives or regulations adopted by the EU institutions - usually applies to socalled purely internal situations, when third country nationals live and reside in one Member State. In contrast to the Treaty-based fundamental freedoms of Union citizens (see above MN 30), secondary legislation does not require a cross-border element. This entails, coincidentally, that the Charter of Fundamental Rights can have a wider scope of application for third country nationals than for Union citizens, 155 even if the level of protection generally remains lower. Closer inspection of the novel human rights guarantees in the Charter that transcend 34 the guarantees in the ECHR (see Thym, Constitutional Framework, MN 48-50) demonstrates that they do not, in contrast to the fundamental freedoms of Union citizens, establish an individual right with constitutional status to enter EU territory in the first place.1 56 This was reaffirmed for the protection of private and family life under Article 8 ECHR and Article 7 EU Charter by the case law of the ECtHR, which the ECJ integrated in the EU legal order (see below MN 52-52a). With regard to economic migration, Article 15 of the Charter reiterates the constitutional distinction between third country nationals and Union citizens in terms of access to the labour market. It starts with a reminder of citizens' rights to free movement under Article 15(2) CFR 157 and continues by reaffirming the absence of a generic right to enter EU territory for economic purposes without state authorisation: 'Nationals of third countries who are authorised to work in the territories of the Member States are entitled to working conditions equivalent to those of citizens of the Union.' 158 This sounds progressive, but the substance is meagre given that equal working conditions for legally resident third country nationals are politically uncontroversial in today's Europe (see Iglesias Sanchez, Directive 2011/98/EU, Article 12 MN 16-17), even though important deficits can exist in practice with regard to foreigners staying both legally or illegally (see Schierle, Employers Sanctions Directive 2009/52/EC, Article l MN 6-7). The EU institutions retain a principled discretion over whether and, if so, under which conditions to grant individual statutory rights for economic and other purposes (see above MN 33b). Within the limits prescribed by human rights, the choice whether entry doors for purposes of legal migration shall be 'open' or 'closed' rests with the political process. The interpretation of corresponding statutory guarantees depends on the contents and context of the legislative instrument in question; there is no general assumption that they should be interpreted in parallel to the free movement guarantees of Union citizens (see Thym, Constitutional Framework, MN 15). In a similar vein, the Charter differentiates cross-border mobility within the Eur- 35 opean Union once a third country national was admitted to the EU territory, for instance when a Moroccan national residing in Spain wants to take up employment in Belgium. While Union citizens benefit from extensive free movement in such scenar154 See Thym, 'Citizens and Foreigners in EU Law'. ELI 22 (2016), p. 296-316; and Thym, C.Onstitutional Rationale, p. 725-735. 15 ~ See Iglesias Sanchez. 'The C.Onstitutional Status of Foreigners and EU Citizens', in: Thym (ed), Questioning EU Citiz.enship, p. 243, 257-264. 156 See Iglesias Sanchez. Fundamental Rights.. p. 138-148; and Thym. Constitutional Rationale, p. 718-721. 157 Articles 52(2), (7) CFR and the official Explanations (OJ 2007 C 303/17), p. 23 confirm that the provision is to be interpreted in line with Articles 45, 49, 56 TFEU. 158 Article 15(3) CFR; emphasis added.

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ios,1 59 Article 45(2) of the Charter states that similar rights 'may be granted' to third country nationals in accordance with the Treaties, 160 thereby emphasising that the IICOpe of intn-European mobility is determined in the legislative process (see above MN 17-18).1 61 The legislature may opt for a generous statutory mobility regime for third country nationals within the EU, but it is not constitutionally obliged to do so. In practice, it laid down comparatively generous rules on temporary free travel within the Schengen area (see Thym, Legal Framework for Entry and Border Controls, MN 18), while the statutory regime for access to the labour market of other Member States remains scattered (see above MN 18). 36 It is well known among experts of EU migration law that the European Council in Tampere in 1999 called upon EU institutions to adopt a 'vigorous integration policy was to aim at granting [third country nationals] rights and obligations comparable to those of EU citizens,' 162 while it similarly requested external border controls to 'stop illegal immigration.' 161 More specifically, long-term residents 'should be granted ... a set of uniform rights which are as near as possible to those enjoyed by EU citizens.' 164 From a legal perspective, the relevance of these statements should not be overstated. Firstly, the political commitment of the heads of state or government is not legally binding (see Thym, Constitutional Framework, MN 8-9). Secondly, the original enthusiasm of the Tampere guidelines, which expired in 2004, gave way to more restrictive terminology in later strategic guidelines, particularly in the successor programme adopted in The Hague. 165 Thirdly, similar formulations were not elevated to Treaty level when the European Convention drafted the new objectives for immigration policy which are enshrined in today's Article 79(1) TFEU and which call, in more abstract terms, for the 'fair treatment' of third country nationals, which leaves the legislature much discretion (see Thym, Constitutional Framework, MN 7). Finally, the outcome of the legislative process often resulted in nuanced provisions, which stayed short of the original enthusiasm among heads of state or government. For legal analyses, the prescription in secondary legislation as well Treaty provisions, including the Charter of Fundamental Rights, are the central point of reference, not the political commitment for the 1999-2004 period.

3. Equal Treatment 37

Within the EU legal order, non-discrimination on grounds of nationality constitutes a central axis underlying the dynamic ECJ case law on the single market and Union citizenship. Although the wording of Article 18 TFEU does not specify expressly that it applies to Union citizens only, it is settled ECJ case law that Article 18 TFEU cannot be "" This is confirmed by Article 45(1) CFR, which has to be interpreted in line with the fundamental freedoms in accordance with Anicle 52(2), (7) CFR and the official explanations (OJ 2007 C 303/17), p. 29. 160 Wilderspin, Article 79 TFEU, para 19 rightly points out contra Peers/Moreno-Lax/Garlick/Guild, EU Immigration and Asylum Law (Text and Commentary), VoL 3: EU Asylum Law, 2nd edn (Brill Nijhoff, 2015), p. 297 that the power to legislate emanates from Article 79(2) TFEU, not the Chaner itself. 161 As a 'principle', Anicle 45(2) can be relied upon only indirectly, once legislation has specified the conditions of free movement; see HailbroMer/Thym, Constitutional Framework., MN 49; and Iglesias Sanchez, Free Movement, p. 789-800, also for international human rights law that only guarantees free movement within (not: between) states, Iglesias Sanchez, Free Movement, p. 794-796. 1 2 • European Council, Presidency Conclusions of the Meeting on 15/16 October 1999 in Tampere, para 18. 163 Ibid., para 3. 164 Ibid., para 21. 165 See Murphy/Acosta Arcarazo, 'Rethinking Europe's Freedom, Security and Justice', in: ibid. (eds), EU Security, p. 1, 4-9.

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Chp. 7 relied upon by third country nationals, since the provision 'is not intended to apply to cases of a possible difference in treatment between nationals of Member States and nationals of non-member countries.' 166 The same applies to the prohibition of discrimination on grounds of nationality in Article 21(2) of the Charter, which replicates Article 18 TFEU. 167 This position of the Court has been criticised by academics, 168 but it seems unlikely that judges in Luxembourg will change course. Article 18 TFEU is closely linked to the realisation of a single market and the concept of Union citizenship (see above MN 28-29). This rationale cannot be extended straightforwardly to migratory matters. 169 For immigration and asylum law, general equality guarantees under human rights law are the appropriate benchmark. The Charter confirms, in line with earlier ECJ case law, that EU institutions must 38 respect the principle of equality before the law, which embraces, as leges speciales, guarantees against discrimination on grounds of sex, race, colour, ethnic or social origin, genetic features and several other characteristics. 170 As freestanding equal treatment guarantees, Articlea 20 and 21(1) of the CJiarter do not depend on the parallel applicability of other human rights - in contrast to Article 14 ECHR 171 In light of autonomous character of the Charter, it is irrelevant that many Member States have not ratified Additional Protocol No 12 to the ECHR with its freestanding equal treatment guarantee. 172 Within this wider field of application, the interpretation of the equal treatment provisions in Articles 20 and 21 of the Charter shall be 'based on' ECtHR case law nonetheless. 173 This entails that Member State may justify unequal treatment on the basis of legitimate reasons and subject to the principle of proportionality (see below MN 38a-40). 174 Additional assurances of equal treatment exist in international human rights law, 175 although it does not have much impact in practice, partly as a result of a lack of binding effects of opinions of expert bodies (see Thym, Constitutional Framework, MN 54a). Human rights in the Charter apply to both EU legislation and national measures implementing Union law (see Thym, Constitutional Framework, MN 47-48).

166 ECJ, Vatsouras & Koupatant:i:e, C-22/08 & C-23/08, EU:C:2009:344, para 52; and EC/, EU-Canada CETA-Agreement, Opinion 1/17, EU:C:2019:341, paras 168-170; see also ECJ, Khalil, C-95/99-98/99 & C-180/99, EU:C:2001:532, para 40. '"' Stt ECJ, Belgischer Staat, C-930/19, EU:C:2021:657, paras 50-51, referring to the Official uplanations (OJ 2007 C 303/17), p. 24, which inform the interpretation of the Charter in accordance with Article 52(2) and (7) CFR ,.. Stt, by way of eumple, Hublet, 'The Scope of Article 12 of the Treaty of the European Communities vis-a-vis Third country Nationals: Evolution at Last?', ELJ 15 (2009), p. 757, 761-774; McConnackGeorge, Equal Treatment, p. 57-60; and de Waele, 'The Ever-Evolving Concept of EU Citizenship', in: Talani (ed), Globalisation, Migration and the Future of Europe. Insiders and Outsiders (Routledge, 2011), p. 191, 197-202. 169 See the argument by Iglesias Sanchez. Constitutional Identity, p. 1798-1807 and 1804-1820. 1"' See ·Articles 20 and 21 ( I) EU Charter, while the prohibition of discrimination on grounds of nationality in Article 21(2) EU Charter corresponds to Anicle 18 TFEU; see above MN 37. "' Stt Wiesbrock. Legal Migration, p. 226-229. 172 Cf. Additional Protocol :-.lo 12, European Treaty Series No 177, adopted 4 November 2010, entered into force 1 April 2005, which is binding for less than half of the members of the Council of Europe. 173 See ECJ, X, Y & Z, C-199/12-C-201/12. EU:C:2013:720, para 54. 0 • • See Bell, "Article 20 (Equality before the Law)', in: Peers/Hervey/Kenner/Ward (eds), The EU Charter of Fundamental Rights. A Commentary (C.H. Beck/Hart, 2014), p. 563-578; and Bribosia, Les politiques d'integration, p. 55-61. 175 See Fril!riksd6ttir, What Happened to Equality? The Construction of the Right to Equal Treatment of Third country :-.lationals in European Union Law on Labour Migration (Brill/Nijhoff, 2017), ch. 2, whose claim on p. 324-326 that EU immigration law violates international obligations remains superficial.

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Notwithstanding widespread preoccupation of the theoretical debate on migration with equal treabnent, 176 the case law of the ECtHR and the ECJ remains patchy. It does not replicate the dynamism of the citizenship model and has occasionally signalled a certain reluctance to challenge migration law - notwithstanding the predfction by academic commentators that Articles 20 and 21 of the Charter would tum out to be crucial constitutional yardsticks. m To be sure, judges in Strasbourg maintain to this date that only 'very weighty reasons' can justify unequal treatment based on nationality, 178 although the doctrinal effects of this statement were watered down in later rulings (see below MN 39-40). On several occasions, the ECJ confirmed the unequal treatment of nationals and foreignen by emphasising that the situation was not comparable and did not require, as a result, a justification in the first place. 179 Doing so mirrors the Aristotelian formula that only similar situations require equal treatment and builds upon case law on other domains of Union law, but it considerably reduced the significance of the human right to equal treabnent nonetheless. 180 Along similar lines, judges in Strasbourg recognised in line with the ECJ (see above MN 37), that the legal status of Union citizens cannot be compared to immigration rules for third country nationals, since 'the Union forms a special legal order, which has, moreover, established its own citizenship.' 181 39 A specific line of the ECtHR case law censured domestic legislation limiting access to social benefits for legally resident m.igrants. 182 While initial judgments had signalled an intense level of scrutiny, based on the 'very weighty reasons' formula (see above MN 38a), we may conclude, with the wisdom of hindsight, that they concerned primarily social security contributions or social assistance of a generic nature, such as child benefits. 183 By contrast, the ECtHR reaffirmed in follow-up cases that Member States retain a margin of appreciation, in particular for migrants with a temporary or

38a

176

By way of example, see Fine, 'Immigration and Discrimination', in: ibid./Ypi (eds), Migration in

Political Theory (OUP, 2016), p. 125-150. 177 See McCormack-George, Equal Treatment, p. 68-81; Iglesias Sanchez. Fundamental Rights, p. 137-153; Hublei, 'Some Foreignen More Equal than Others under EU Law', in: Bonjour/Rea/Jacobs (eds), The Others in Europe (Institut d'etudes europeeMes, 2011), p. 63, 72-74; Bribosia, Les politiques d'int~tion, p. 54-61; and Wiesbrock, 'Granting Citizenship-related Rights to Third country Nationals', EJML 14 (2012), p. 63, 80-82. 171 ECtHR, judgment of 16 Sep 1996, No 17371/90, Gaygwuz v. Austria, pan 42. ,,.. This conclusion was reached for integration measures by ECJ, P & S, C-579/13, EU:C:2015:369, paras 39-43; for residence requirements of beneficiaries of international protection by ECJ, Alo & Osso, C-443/14 & C-444/14, EU:C:2016:127, paras 54, 59; for autonomous residence permits of family members by EC), Belgischer Staat, C-930/19, EU:C:2021:657, paras 57-76; and for pre-removal detention by ECJ, Ordrt da barnawc francophones et germanophone et eL, C-718/19, EU:C:2021:505, para 65; beyond the sphere of migration, ECJ, EU-Canada CETA-Agreement, Opinion 1/17, EU:C:2019:341. paras I 77 el seq.; for comments, Stt Thym, 'Towards a Contextual Conception of Social Integration in EU Immigration Law', EJML 18 (2016), p. 89, 104-105. 180 See Iglesias Smchn, Constitutional Identity, p. 1818-1820; Jesse, 'Integration Measures, Integration Exams. and Immigration Control', CML Rev. 53 (2016), p. 1065, 1079-1080; and De Vries, 'The Integration Exception', in: Thym, Questioning EU Citizenship, p. 267, 282-284; as well as Craig, EU Administrative Law, 3rd cdn (OUP, 2018), p. 577-578 for the other areas of EU law. 111 ECtHR, judgment of 21 June 2011, So 5335/05, Ponomaryovi et aL v. Bulgaria, para 54; and ECtHR, judgment of 18 February 1991, No 12313/86, Mowtaquim v. Belgium, para 49. 112 For an overview, see Dembour, When Humans Become Migrants (OUP, 2015), ch. 8; and Minderhoud, 'Social Security Rights of Third Country Nationals', Journal of Social Security Law 17 (2010), p. 227-239. 10 ECtHR, judgment of 16 September 1996, No 17371/90, Gaygwuz v. Au.stria noting that contributions-based benefits can be covered by the right to property under Article I Additional Protocol So. l; and ECtHR, judgment of 8 April 2013, No 17120/09, Dhabi v. Italy, paras 45-54.

a.

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Chp.7 precarious n:sidence status. 184 It recognised that states 'may have legitimate reasons for curtailing the use of resource-hungry public services ... by short-term and illegal immigrants, who, as a rule, do not contribute to their funding' 185, in particular health care, social housing or broader welfare. In a series of decisions, the ECtHR confirmed that those staying illegally can be excluded from social benefits, 186 although the precise contours of the case law can be difficult to decipher, in particular when it comes to core benefits whose denial may give rise to a claim under Article 3 ECHR (see Thym, Legal Framework for EU Asylum Policy, MN 57a-57b). In an important judgment of principle, the ECtHR recognised that 'immigration 40 statua is not an inherent or immutable personal characteristic such as sex or race, but is subject to an element of choice.' 187 That may sound innocent but has important constitutional implications, since it indicates a lower level of scrutiny, thereby mal, Having regard to the opinion of the European ParliamentU>, Having regard to the opinion of the European Economic and Social Committee(ll, Having regard to the opinion of the Committee of the Regions(4 >,

Whereas: [ ... )

HAS ADOPTED THIS DIRECTIVE:

CHAPTER I General provisions Article I The purpose of this Directive is to determine the conditions for the exercise of the right to family reunification by third country nationals residing lawfully in the territory of the Member States. Content

mn. I. General remarks on Anicle 1....................................................................... II. Drafting history of the Directive and of Article 1...................................

I 2 15

Ill. Structure of the Directive.............................................................................. Protection of family life under human rights law................................... 18 V. The right to family reunification under the Directive........................... 26

rv.

I. General remarks on Article I Article· I of Council Directive 2003/86/EC of 22 September 2003 on the Right to Family Reunification (hereinafter: the Directive) establishes the purpose of the Directive. 1 Unlike other Directives,2 Article I of Directive 2003/86/EO is not a simple ''' OJ C 116 E, 26.4.2000, p. 66, and OJ C 62 E, 27.2.2001, p. 99. OJ C 135, 7.5.2001, p. 174. Ill OJ C 204, 18.7.2000, p. 40. 141 OJ C 73, 26.3.2003, p. 16. 1 Oosterom-Staples, The Family Reunification Directive, p. 451. 2 See Anicle I of the Asylum Reception Directive 2013/32/EU and Anicle 1 of the Asylum Qualification Directive 2011/95/EU. 3 Subsequent Anicles without further reference are those of Directive 2003/86/EC. 121

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reproduction of the Directive's title. Rather, it clarifies the scope of application ratione

personae. Therefore, it may serve as a source of interpretation for the Directive.

II. Drafting history of the Directive and of Article 1 2

Council Directive 2003/86/EC on the Right to Family Reunification was adopted by the Council of the European Union on 22 September 2003. The Directive was not the first attempt to harmonise national law on family reunion. The aim to harmonise this field of migration policy has been on the European political agenda since 1991. Following a request from the Luxembourg European Council of June 1991, the Ministers responsible for immigration presented a report on immigration and asylum which was approved by the Maastricht European Council of December 1991.4 The report included a work programme which envisaged inter alia measures on harmonisation of policies on admission for purposes such as family reunion and formation, as well as harmonisation of legal provisions governing persons authorized to reside. 5 In 1992 a draft resolution was presented by the Portuguese Presidency which, according to the delegations, appeared too binding.6 3 In June 1993, the Ministers adopted a Resolution on the barmoniation of national policies on family reunification (hereinafter: Resolution).' This 'soft law' instrument contained a number of principles that were intended to govern national policies on family reunification (para.5 of the Resolution), i.e. family members eligible for admission and conditions for entry and residence. The Resolution concerned family reunification of third-country nationals residing in the territory of the Member States with a view to permanent or long-term residence (Principle I of the Resolution) and thus factored out EU citizens and their family members. In contrast to Directive 2003/86/EC, the Resolution did not apply to refugees. The Resolution inspired the general scheme of the Directive by laying down that Member States 'will normally grant admission' to the family members of third-country nationals eligible for reunification (Principle 8 of the Resolution). It moreover listed conditions to this end, including an undefined waiting period ('certain period of time'), public policy exceptions, and economic requirements were included. 4 The Amsterdam Treaty of 199'78 transferred competences in the field of immigration and asylum to the European Community (see Thym, Constitutional Framework, MN 2 et seq.). In particular, Article 63(1) No 3(a) TEC (now Article 79(2)(a) TFEU) empowered the Council to 'adopt measures on immigration policy [such as ... ) conditions of entry and residence, and standards on procedures for the issue by Member States of long-term visas and residence permits, including those for the purpose of family reunion'. 9 The Directive is based on this provision. The words 'family reunion' as mentioned in Article 63(1) No J(a) TEC and 'family reunification' mentioned in the Directive's title are used interchangeably in EU law and hereinafter and do not diverge in substance. Unlike most other competences in migration and asylum law at that time, 4 Ad Hoc Group on Immigration, Report from the Ministers Responsible for Immigration, 1 June 1993, SN 4038/91 (WGI 930), for the text see Handoll, free Movement of Persons in the EU: Towards European Citizenship (Wiley, 1995), p. 646 et seqq. i Handoll, Free Movement of Pmons in the EU: Towards European Citizenship (Wiley, 1995), p. 361, MN 11.67. • Peers/Guild et al, EU Immigration Law, p. 573, 577. 'Ad Hoc Group on Immigration Copenhagen, 1 June 1993, SN 2828/1/903 (WGI 1497), for the text see Handoll, Free Movement of Persons in the EU: Towards European Citizenship (Wiley, 1995), p. 646 et seqq. • Treaty of Amsterdam, OJ 1997 C 340/1, signed on 2 October 1997, entry into force on 1 May 1999. 9 Emphasis added.

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the competence for the regulation of family reunification was not limited to harmonising at the level of minimum standards. 10 For creating a body of secondary law in the area of freedom, security and justice, the Amsterdam Treaty stipulated a five-year deadline starting with the entry into force of the Amsterdam Treaty on 1 May 1999 and ending on 30 April 2004 (Article 63(1) TEC). However, according to Article 63(4) TEC. the five-year period was not applicable to measures pursuant to Article 63(1) No 3(a) TEC, the provision that included a competence for family reunification. Thus, primary law did not require the Council to adopt secondary law in the field of family reunification within the five-year period. Nevertheless. shortly after the Amsterdam Treaty entered into force on 1 May 1999, the European Council held a special meeting in Tampere (Finland) on 15/16 October 1999 to set guidelines for the implementation of the powers and competences introduced by the Amsterdam Treaty and in order to prepare the development of the Union into an area of freedom, security and justice. 11 The Tampere European Council concluded that the EU 'must ensure fair treatment of third country nationals who reside legally on the territory of its Member States [and that a ... ) more vigorous integration policy should aim at granting them rights and obligations comparable to those of EU citizens.' 12 Shortly after, on l December 1999, the Commission presented a fint proposal on a Directive on family reunification. 13 As the Commission explained at the time, it deemed it necessary to allow third-country nationals residing lawfully in the territory of the Member States to have the right to family reunification subject to certain conditions in order to attain the objectives of Tampere.1 4 Recital 3 of the Directive still refers to the goals of Tampere. The legislative process leading up to the adoption of the Directive turned out to be difficult. The Economic and Social Committee 15 and the Committee of the Regions 16 were consulted and the European Parliament approved the first proposal subject to 17 amendments. 17 The most important suggestion was to exclude persons enjoying subsidiary forms of protection from the personal scope of application, a suggestion which has left this group without an EU law based right to family reunification. 18 Following the consultation of the European Parliament on 10 October 2000 the European Commission presented a second, modified proposal, 19 which took up most of the European Parliament's suggestions, such as the exclusion of persons enjoying

"See Article 63(1) No l(b)-(d) TEC. 11 Tampere European Council, Conclusion of the Presidency No 18, available at: https://www.europarl. europa.eu/summits/tam_en.htm [last accessed 30 November 2020). 12 Tampere European Council, Conclusion of the Presidency No 18, available at: hnps://www.europarl. europa.eu/summits/tam_en.htm [last accessed 30 November 2020). ll Commission Proposal, COM(l999) 638 final; see on the first proposal: Boeles, 'Directive on Family Reunification: Are the Dilemmas Resolved?', EJML 3 (2001), p. 61-71. 14 Commission Proposal, COM(l999) 638 final, Explanatory Memorandum, p. 9. 15 Opinion of the Economic and Social Committee of 25.5.2000 (OJ 2000 C 204/40). The opinion was requested by Council decision of l 0.2.2000, to consult the Committee according to Article 262( l) TEC in regard to the first proposal for a Directive, (COM(2002) 225). 1• Opinion of the Comminee or the Regions of 20.11.2002 (OJ 2003 C 72/16). The opinion was requested by Council decision of 23.5.2002, to consult the Committee according to Article 265(1) TEC in regard to the third proposal for a Directive (COM(2002) 225). 17 European Parliament on the Proposal of a Council directive on the right to family reunification of 6.9.2000 (OJ 2001 C 135/174-178). "Oosterom-Staples. The Family Reunification Directive, p. 451,455. 19 Commission Proposal, COM(2000) 624 final; see Cholewinski, 'Family Reunification and Conditions Placed on Family Members: Dismantling a Fundamental Human Right', EJML 4 (2002), p. 271-290.

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subsidiary protection. 20 However, it did not yet follow the suggestion of the European Parliament's Committee on Citizens' Freedoms and Rights, Justice and Home Affairs to include a general derogation clause allowing for more favourable arrangements to be maintained (cf. Article 3(5)).21 The Commission argued at the time that it ·was not compatible with the objective of aligning national legislation. 22 The second proposal was discussed intensely in the Council. Diverging opinions and interests of the Member States23 made it unlikely that such a proposal would ever find the necessary unanimous vote (Article 67(1) TEC). Recognising these difficulties, the European Council of Laeken on 14/15 December 2001 concluded that a true common asylum and immigration policy implied the establishment of common standards on procedures for asylum, reception and family reunification24 and asked the Council to submit, by 30 April 2002, an amended proposal concerning family reunification. 25 · 9 In response to the Council's request, the Commission adopted a third propoaal on 2 May 2002. 26 The third proposal included considerable amendments. It was much less ambitious concerning the amount of hannonisation than the previous two proposals. Provisions allowing for derogations27 and optional clauses28 were introduced to gain agreement by all Member States.29 Derogation clauses concerned the eligibility of minor children over the age of 12 which may be made dependent on an integration condition and a waiting period of up to three years from submitting an application for reasons of national reception capacity. 30 The proposal was discussed and amended in the Council. At its meeting of 27 February 2003 the Council reached a political compromise on the third proposal. 31 The Directive was formally adopted on 22 September 2003 and entered into force on 3 October 2003, the day of its publication in the Official Journal of the European Union (Article 21 of the Directive). 10 Especially with a view to the more generous approach of the first and second proposal, the final Directive has been criticised for harmonising minimum standards only. 32 In support of this critique, reference can be made to Article 3(4) and (5) of the 20 See Commission Proposal, COM(2000) 624 final, Explanatory Memorandum, p. 2; see in detail: Oosterom-Staples, The Family Reunification Directive, p. 451,455. 21 European Parliament doc. A5/2000/201 of 6 September 2000, amendment 9. See also Report of the Committee on Citizens' Freedoms and Rights, A5-201/2000 of 17 July 2000, p. 9, amendment 9. u Commission Proposal, COM(2000) 624 final, Explanatory Memorandum on amendment 9, p. 4. n Hereinafter in this chapter 'Member States' means the Member States bound by the Directive. 2, Laeken European Council, Conclusion of the Presidency No 40, point 3. is Ibid., Conclusion of the Presidency no 41. The Council also requested the submission of amended proposals concerning asylum procedures and the Dublin II Regulation. u. Commission Proposal, COM(2002) 225 final 27 Schaffrin, in earlier/De Bruycker (eds), Immigration and Asylum Law of the EU, p. 90, 93 defines 'derogation clauses' as clauses which permit Member States to add to an exhaustive set of possible conditions, that is, to fall behind the standards provided for in the Directive. 21 'Optional clauses' can be defined as clauses which allow Member States to go beyond the standards set out in the Directive, Schaffrin, in earlier/De Bruycker (eds), Immigration and Asylum Law of the EU, p. 90, 93. 29 See Commission Proposal, COM(2002) 225 final, Explanatory Memorandum on Article 4, p. 7: 'Given the diversity in national legislation concerning those enjoying the right to family reunification, it does not seem possible for the moment to extend the obligation to allow entry and residence beyond the spouse and minor children. There is therefore a possibility but not an obligation, as regards relatives in the ascending line, dependent adult children and unmarried partners.' .10 Commission Proposal, COM(2002) 225 final, Article 4( I )(c) and Article 8(2). 11 Note of the General Secretariat of the Council to the Delegations, Council doc. 6912/03 of 28 February 2003. 12 Cholewinski, 'Family Reunification and Conditions Placed on Family Members: Dismantling a Fundamental Human Right', EJML 4 (2002), p. 271, 279 et seq; Oosterom-Staples, The Family Reunification Directive, p. 451.

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Directive which enable the Member States to adopt more favourable provisions, showing that a higher level of protection can be afforded in national legislation. 33 Those provisions were indeed introduced to compensate for the deletion of several more favourable provisions in the course of the negotiations. 34 The Directive had to be transposed into national law by the Member States - except for 11 the United Kingdom, Ireland and Denmark, which are not bound by the Directive35 - by 3 October 2005 (Article 20(1) of the Directive). On the date of expiration of the implementation period, the Commission reported that only six Member States had notified their implementing measures to the Commission. 36 In October 2008, the European Commission released a report to the Council and the European Parliament on the application of the Directive. 37 The report revealed several fields of incorrect transposition or misapplication of the Directive. 38 The Commission recognised that due to the lowlevel binding character and corresponding discretion of Member States, the Directive's impact on harmonisation in the field of family reunification remains rather limited. 39 In the Stockholm Programme, the Commission called for an 'evaluation and, where necessary, review of Council Directive 2003/86/EC of 22 September 2003 on the right to family reunification, taking into account the importance of integration measures'. 40 In reaction to these deficits, the Commission issued a Green Paper in 2011 41 which initiated a broad public consultation on the future of the right to family reunification. 42 The public hearing came to the conclusion that the Directive should not be re-opened, but that the Commission should ensure the full implementation of the existing rules by opening infringement procedures where necessary and produce guidelines on identified issues. 43 It did so in April 2014,44 when it published guidelines to ensure a more coherent application of the Directive. This guidance for application is non-binding but may act as a point of reference for the interpretation of the Directive. The ECJ has decided a number of cases concerning the Directive. 45 Initially, a 12 relevant case for the overall understanding and interpretation of the Directive resulted from a claim for annulment launched two months after the Directive entered into force by the European Parliament, pursuant to Article 230 TEC (now Article 263 TFEU) before the ECJ. 46 The Parliament sought annulment of three provisions of the Directive: the third subparagraph of Article 4(1), Article 4(6) and Article 8. The Parliament argued that these provisions, which allow for derogation from the principle of family reunifica11

Oosterom-Staples, The Family Reunification Directive, p. 451. Commission Proposal, COM(2002) 225 final, p. 6. ,s See recital 17 for Ireland and the United Kingdom; recital 18 for Denmark. 36 Those six Member States were Belgium, Estonia, Latvia, Lithuania, Poland and Slovenia, Press Release Memo/05/348 of 3 October 2005, available at: http://europa.eu/rapid/pressReleasesAction.do?reference=MEM0/05/348&format=HTML&aged=l&language=EN&guiLanguage=en [last accessed 3 March 2021 ]. 17 Commission Report, COM(2008) 610 final . .l8 Commission Report, COM(2008) 610 final, p. 14. 1• Ibid.; p. 14. 40 Commission Communication, COM(2009) 262/4, p. JO, the so-ailed 'Stockholm Program' . ., Commission Green Paper, COM(2011) 735 final. 41 Commission Report, Summary of Stakeholder Responses to the Green Paper on the right to family reunification, II May 2012, available at: https://www.eesc.europa.eu/en/documents/summary-stakeholderrespon.ses-green-paper-right-family-reunification-third-country-nationals Ilast accessed 1 February 2021 ). 41 Commission Communication, COM(2014) 210 final, p. 2. 44 Ibid. 45 For an overview of ECJ case law regarding family reunification in general, see De Winter/Fink, 'Precedent and fundamental rights in the CJEU's case law on family reunification immigration', in: NeuholdNanhoonacker (eds), Dynamics of institutional cooperation in the European Union: Dimensions and effects (European Integration online Papers (EloP), 2015), Special issue 1, Vol. 19, Article 6. 46 ECJ, Parliament v. Counci~ C-540/03, EU:C:2006:429. .M

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tion in the Directive, were inconsistent with 'fundamental rights, including the right to family life and the right not to be discriminated against . . . .'47 Whereas Advocate General Kokott4' had found Article 8 of the Directive to be incompatible with human rights, the ECJ dismissed the entire application on 27 June 2006. 49 It emphasised that Article 8 ECHR and other instruments of international law, such as the Convention on the Rights of the Child 50 and Article 7 CFR51 do not grant a right to enter and reside in a particular country for the purpose of family reunification. 52 The ECJ stressed that States enjoy a 'margin of appreciation' when they examine applications for family reunification53 although Article 8 ECHR in each case calls for a balancing of interests of the third-country nationals concerned and those of the host State. 54 This may result in a positive obligation to grant entry to a person. According to the Court, the Directive by actually granting a right to family reunification in Article 4(1) - goes beyond previously existing fundamental rights.55 The ECJ held that the contested provisions merely preserved the Member States' margin of appreciation and that Article 5(5) (best interest of minor children) as well as Article 17 ensure that in each case the relevant competing interests are weighed. 13 On 29 December 2008, in Chakroun, the Court expressed itself on two questions regarding the resources requirement stipulated under Article 7(l)(c) and the definition of 'family' under Article 2(d) (see in detail below Article 7 MN 12 et seq. and Article 2 MN 17). 56 The Court emphasised that 'the margin for manoeuvre which the Member States are recognised as having must not be used by them in a manner which would undermine the objective of the Directive, which is to promote family reunification, and the effectiveness thereof.5' This frames the interpretation of the entire Directive and allegedly influences the test of proportionality of restrictive national measures, 58 which must be interpreted restrictively. 59 14 The drafting history of Article I reveals some moderate changes. The wording was changed from 'to establish a right to family reunification' (first and second proposal) 60 to 'determine the conditions in which the right to family reunification may be exercised' (third proposal) 61 and 'to determine the conditions for the exercise of the right to family

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EC), Parliament v. Council, C-540/03, EU:C:2006:429, para 30. AG Kokon, Parliament v. Council, C-540/03, EU:C:2005:517. ◄• EC), Parliament v. Council, C-540/03, EU:C:2006:429. 5C Ibid., para 57. 51 Ibid., para 58. 52 Ibid., para 59. 53 Ibid., para 62. 54 The Court's argumentation with human rights provisions shows that these instruments clearly influence the Court's understanding of the right to family reunification, see Lawson, 'Family Reunification and the Union's Charter of Fundamental Rights, Judgment of 27 June 2006, Case C-540/03, Parliament v. Council', EuConst 3 (2007), p. 324, 333. 55 EC), Parliament v. Council, C-540/03, EU:C:2006:429, para 60. 56 Reference for a preliminary ruling from the Raad van State (Netherlands) lodged on 29 December 2008, EC), Chakroun, C-578/08, EU:C:2010:117. 57 Ibid., para 43. 58 Hardy, 'The Objective of Directive 2003/86 Is to Promote the Family Reunification of Third Country !llationals', EJML 14 (2012), p. 439, 443. 'The individual analysis has thus become a condition of substance, more than of procedure.' (p. 444). 5' This follows directly from the Chakroun judgment, see Wiesbrock, 'The Right to Family Reunification of Third-Country Nationals under EU Law - Is Directive 2003/86/EC in compliance with the ECHR?' (Case Note on Rhimou Chakroun), EuConst 6 (2010), p. 462, 474. 60 Commission Proposal, COM( 1999) 638 final, Article I and Commission Proposal, COM(2000) 624 final, Article I. 61 Commission Proposal, COM(2002) 225 final, Article I, emphasis added. 41

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reunification'62 (Article l of the Directive). Apart from minor language revisions, there was only one major amendment to Article l. Whereas the first proposal included family reunification to citizens of the Union who do not exercise their right to free movement,63 this group is excluded from the scope of the Directive. There is accordingly no mention thereof in Article 1, reflecting the limitation in personal scope as provided for in Article 3(3) of the Directive. The Commission had originally suggested applying the Directive also to immobile Union citizens, who were excluded from the scope of the Free Movement Directive 2004/38/EC. However, during the negotiations on the Free Movement Directive 2003/86/EC, Germany made clear that it was concerned about such a wide scope of application and the Commission agreed to make family reunification of this group of persons the object of a separate proposal 64 which, however, to date has not been adopted.

III. Structure of the Directive The Directive contains 22 articles and is structured into eight chapters. Due to many IS changes during the negotiation process, the structure of the Directive is not entirely consistent concerning order and content. Chapters l and II (Article 1-3: General provisions) determine the scope of application ratione materiae and ratione personae-. The Directive determines the conditions for the exercise of the right to family reunification. More precisely, it provides for the conditions of entry, stay and termination of stay of third-country nationals who are family members of third-country national legal residents in the Member States. Chapters III (Article 5) and IV (Article 6) list the conditions that must be satisfied in order to qualify for family reunification under the Directive. Chapter V (Articles 9-12: family reunification of refugees) of the Directive sets up 16 preferential rules where the sponsor is a refugee. These provisions are mainly derogations creating more favourable provisions for family reunification of refugees, taking account of their particular situation. The idea to create a separate chapter for refugees was only realised in the third proposal. The first two proposals foresaw specific provisions for refugees within the respective provisions. The change of structure was not entirely coherent, as can be seen in the second subparagraph of Article 7(2) of the Directive, which exempts refugees and their family members from integration measures. In addition, the Asylum Qualification Directive 201 l/95/EU65 needs to be taken into account. Article 23 of the Asylum Qualification Directive 2011/95/EU obliges Member States to particularly preserve family unity of refugees. The interplay of both Directives Asylum Qualification Directive 2011/95/EU and Directive 2003/86/EC - is partly contentious and will be dealt with below (see below Article 9-12 MN 4). Chapter VI of the Directive (Articles 13-15) provides for specific rights for family 17 members once they are admitted to the territory. They relate to education, vocational guidance and employment. 66 Chapter VII of the Directive (Articles 16-18) stipulates specific sanctions. The reasons for rejection, withdrawal or refusal lo renew as stipulated by Article 17 of the Directive originate from the ECtHR's case law on Article 8 ECHR. 67 Emphasis added. Commission Proposal, COM(I999) 638 final. Article I. 64 Commission Proposal, COM(2002) 225 final, p. 5. 65 OJ 2ooi L 304/12. .. Anide 14( I) of the Family Reunification Directive 2003/86/EC. 67 Groenendijk., A Right under Community Law, 219. 62

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Article 18 of the Directive guarantees legal remedies. Chapter VIII (Articles 19-22) contains final provisions.

IV. Protection of family life under human rights law The Directives' interpretation and application is strongly influenced by the jurisprudence of the ECtHR, since the ECHR protects the right to family life in Article 8 thereof (for an overview, see Thym, Legal Framework for EU Immigration Policy, MN 52 et seq.). Recital 2 of the Directive reiterates that measures concerning family reunification should be adopted in conformity with the obligation to protect the family and respect family life enshrined in instruments of international law. Accordingly, the ECJ" ruled that 'the provisions of the Directive ... must be interpreted ... in the light of the right to respect for family life enshrined in ... the ECHR'.68 The content of Article 8 ECHR therefore significantly shapes the requirements of the Directive and its application. Article 8 ECHR affords an individual 'the right to respect for his private and family life'. Even though the EU is not yet bound by the ECHR in its own right, Union law reproduces Article 8 ECHR in the corresponding provision of the CFR, namely, in Article 7 thereof. Pursuant to Article 52(3) CFR, the two provisions shall have the same 'meaning and scope'. 69 In addition, another Fundamental Rights instrument that exerts the Convention on the Rights of the Child. 19 In its first judgment on the Directive in the case Parliament v. Council, the ECJ has extensively referred to the ECtHR's jurisprudence on Article 8 ECHR in deciding whether the contested provisions of the Directive were in line with fundamental principles of EU law (see below, interpretation of Articles 4 and Article 17).70 The obligations stemming from Article 8 ECHR are of paramount importance in this regard, since they need to be respected by the Member States when they decide on entry, residmce but also termination of residence of third-country nationals when implementing the Directive. 20 In the jurisprudence of the ECtHR, the term 'family' is conceptualiaed in broad terms. It pivots on the existence of real connections of close personal ties and thus includes both formal and informal relationships alike, such as non-married stable partnerships or religious marriages. 71 The ECtHR has equally recognised stable relationships of same-sex couples to fall under Article 8 ECHR 72 Family ties between parents and children exist from the moment of birth and may cease to exist in exceptional circumstances. 73 Extended family members may fall within the scope of Article 8 ECHR where factors of dependence substantiate the existence of family ties. 74 21 With regard to the question whether Article 8 ECHR entails a right to family reunification in the sense of allowing a person entry to a Member State, the ECtHR only had to decide on a few cases75 and has repeatedly ruled that Article 8 ECHR does

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ECJ, Otakroun. C-578/08, EU:C:2010:117, para 44. Article 52(3) CFR. ?ll EC). Parliammt v. Council, C-540/03, EU:C:2006:429, para 52 et seq. 71 ECtHR. Judgment of 2 November 2009, No 3976/05, ~fe Yitit v. Turkey, paras 93 to 98, referring to the Turkish imam nikah. 72 ECtHR, Judgment of 23 February 2016, No 68453/13, Pajic v. Croatia, para 64. 73 Costdlo, Grocnendijk et al., Realising the right to family reunification of refugees in Europe. Issue paper published by the Council of Europe Commissioner for Human Rights, p. 15, with further references. 74 ECtHR. Judgment of 18 November 2014, No 5049/12, Senchishak v. Finland, para 55. 75 ECtHR. Judgment of 28 May 1985, No 9214/80, 9473/81 and 9474/81, Abdulaziz, Cabales and Balkandali v. Tht United Kingdom; Judgment of 28 November 1996, !1/o 21702/93, Ahmut v. The Netherlands, para 63; Judgment of 19 February 1996, No 23218/94, Gui v. Switur/and; Judgment of 61 fi9

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not grant a direct right to family reunification. As a general starting point the Court

considers that Article 8 ECHR does not impose 'on a State a general obligation to respect the choice by married couples of the country of their matrimonial residence and to authorise family reunion in its territory'76 and that 'a State has the right to control the entry of non-nationals into its territory'. 77 Therefore the 'right' to family reunification is only an indirect one, 78 following from positive obligations 'inherent in effective "respect" for family life' (see Thym, Legal Framework for EU Immigration Policy, MN 52, with further references). 79 According to the established case law of the ECtHR the extent of a State's obligation 22 to admit relatives of settled immigrants to its territory will vary according to the particular circumstances of the individual involved and the general interest of the receiving society as a whole in controlling immigration.80 In order to determine whether these circumstances require the admission of a person seeking family reunification, the ECtHR originally applied a so-called elsewhere approach which considered whether family life could be developed abroad or granting family reunification was the only way to develop family life. 81 In subsequent case law, the ECtHR seems to have modified the very strict application of that approach. In the $en case of 2001, the Court, for the first time, obliged a State to grant family reunification to a child - in the case a nine-year old daughter - in light of positive obligations coming from Article 8 ECHR.82 The Court ruled that given the circumstances of the case, especially with regard to her young age, the fact that both parents were legally residing in the Netherlands for a number of years and that two more children were born and raised in the Netherlands, admission of the child was the most adequate means to develop family life with her parents.Bl Whether the new language employed means that family reunion is required only if there are no reasonable alternatives available or whether the formula means a departure from the elsewhere approach 84 is an open question, even though there are indications that the ECtHR did not intend to depart from its established standards.B5

21 December 2001, No 31465/96, ~ v. The Netherlands; Judgment of 1 December 2005, No 60665/00, TWluabo-Thekle v. The Netherlands; Judgment of 30 July 2013, No 948/12, Berisha v. Switzerland; Judgment of 14 June 2011, No 38058/09, Osman v. Denmark; Judgment of 14 June 2011, No 38058/09,

Biao v Denmark. 1• ECtHR. Judgment of 19 February 1996, No 23218/94, Gui v. Switzerland, para 38; ECtHR, Judgment of 14 June 2011. No 38058/09, Biao v. Denmark, para 53; ECtHR, Judgment of 3 October 2014, Jeunesse v. The Netherlands, No 12738110, para 107 . .,., Seminally, ECtHR, Judgment of28 May 1985, No 9214/80, 9473/81 and 9474/81, Abdulaziz, Caba/es and Balkandali v. The United Kingdom, para 67. '"Martin, "Comments on N. v. Inspecteur van de Belastingdienst Oost/kantoor Almclo (Case C-470/04 of 7 September 2006), European Parliament v. Council (Case C-540/03 of 27 June 2006) and Tu-Hagen and Tas (Case C-192/05 of 26 October 2006)', EJML 9 (2007), p. 141, 152. "'ECtHR. Judgment of 17 May 1995, No 21702/93, Ahmut v. The Netherlands, para 63; ECtHR, Judgment of 30 July 2013, No 948/12, Berisha v. Switzerland, para 48 . ., ECtHR, Judgment of 28 May 1985, N'o 9214/80, 9473/81 and 9474/81, Abdulaziz, Cabales and Bal/candali v. The United Kingdom, para 67; Judgment 17 May 1995, N'o 21702/93, Ahmut v. The Netherlands, para 67(a); Judgment of 19 February 1996, No 23218/94, Gw v. Switzerland, para 38; ECtHR. Judgment of 8 March 2016, No 25960/13, I.A.A. et aL v. the United Kingdom, paras 39 et seq. • 1 ECtHR, Judgment of 19 February 1996, No 23218/94, Gu/ v. Switzerland, para 39. 12 ECtHR. Judgment of 21 December 2001, No 31465/96, :,en v. The Netherlands, para 41. .., ECtHR, Judgment of 21 December 2001, N'o 31465/96, ~ v. The Netherlands, para 40; ECtHR, Judgment of 1 December 2005, No 60665/00, Tuquabo-Thekle v. The Netherlands, para 47. 84 See Wiesbrock, Legal migration, p. 518. u ECtHR. Judgment of 3 October 2014, /eunesse v. The Netherlands, No 12738/10, para 122.

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Accordingly, nothing currently indicates that the formula used means that Article 8 ECHR can be interpreted as an individual right to establish family reunion in a country if residence must be considered as the most adequate place for establishing family life. 86 The ECtHR explicitly applied the 'most adequate means' formula in the Tuqutibo-Tekle case of 2005, granting family reunification to a 15-year old child who resided in the Netherlands for a long time and had obtained Dutch nationality. In the Berisha case, the ECtHR emphasised that in striking a fair balance between the applicants' interest in developing a family life in the respondent State on the one hand and the State's own interest in controlling immigration on the other, it must be borne in mind that the applicants already had a family life which they left behind in another country. 87 While the best interest of children must be paramount,88 when the children concerned have reached an age where they were not as much in need of care as young children, whereas 'the Court has also examined whether the children have grown up in the cultural and linguistic environment of their country of origin, whether they have other relatives there, and whether it could be expected that the parents would return to that country.'89 In addition, in Osman v. Denmark the Court emphasised that 'for a settled migrant who has lawfully spent all or the major part of his or her childhood and youth in a host country, very serious reasons are required to justify expulsion. '90 24 This illustrates that Article 8 ECHR implications are not limited to questions of entry of a third country national, but also affect decisions of residence of a third-country national (cf. the definition on 'family reunification' as 'entry and residence' Article 2(d) of the Directive). In the case Rodrigues da Silva of 2006, the ECtHR granted leave to remain to the Brazilian mother of a Dutch girl in view of the consequences for the child, although the mother had been an illegal resident. The specifics of the case were, however, that the mother, at some point, had the possibility to legalise her stay. In contrast, in the similar situation in the Omoregie case,91 the application for a right to reside of a father of a new-born child was rejected since at no time he could have expected to have a legal residence in Norway. The factors that need to be taken into account when making the case-by-case assessment are the extent to which family life is effectively ruptured, the ties in the Contracting State, whether there are insurmountable obstacles in the way of the family living in the country of origin of one or more of them, whether there are factors of immigration control (e.g. a history of breaches of immigration law) or considerations of public order weighing in favour of exclusion or whether family life was created at a time when the persons involved were aware that the immigration status of one of them was such that the persistence of that family life within the host state would from the outset be precarious. 92 25 In sum, only in cases in which there is no reasonable alternative to admitting a family member to the tenitory of a State Party, the positive obligations inherent in the 'respect' for family life stipulated by Article 8 ECHR amount to a right to family reunification. The ECtHR attributes special consideration to the young age of children applying for 23

86 See also Spijkerbocr, 'Structural Instability: Strasbourg Case Law on Children's Family Reunion', EJML 11 (2009), p. 271, 272. 17 ECtHR, Judgment of 30 July 2013, No 948/12, Berisha v. Switurland, para 50. 81 Ibid., para 5 I. 89 Ibid., para 56. 90 ECtHR. Judgment of 14 June 2011, !\lo 38058/09, Osman v. Dmmork, para 65. •• EQHR, Judgment of 31 July 2008, No 265/07, Darren Omorrgie and Othm v. Norway. • 2 EOHR, Judgment of 31 January 2006, No 50435/99, Rodrigues da Silva and Hoogla,mer v. The Netherlands, para 38; Judgment of 14 June 2011, No 38058/09, Biao v. Dmmarlc, para 53; ECtHR, Judgment of 8 March 2016, No 25960/13, I.A.A. et aL v. the United Kingdom, paras 38 to 41.

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family reunification and their socialisation in the country of origin, 93 and the fact whether other family members such as parents and siblings can be expected to return to the country of origin in order to develop family life there.

V. The right to family reunification under the Directive According to Article l, the purpose of the Directive is 'to determine the conditions for 26 the exercise of the right to family reunification'9-1 whereas the first proposal contained the words 'establishing a right to family reunification'. 95 This change in Article l led to the question whether the Directive still entails a right to family reunification. However, the Directive's title as well as Article 4 which obliges Member States to 'authorise the entry and residence' of certain family members indicate that the Directive continues to regulate a right to family reunification.96 The existence of this right was expressly confirmed by the ECJ in Parliament v. Council, where the Court reiterated that the Directive goes beyond other legal provisions by imposing precise positive obligations, with corresponding clearly defined individual rights, on the Member States.97 Thus, the Directive, for the first time, sets up a Union wide right to family 27 reunification, which has, as a consequence, in some Member States led to the introduction of a detailed set of rules on family reunification.98 By imposing precise positive obligations on Member States with corresponding clearly defined individual rights to family reunification in Article 4(1) 'without being left a margin of appreciation' for the Member States, the Directive goes beyond the rights conferred to third-country nationals by Article 8 ECHR 99 It must be added, in this regard, however, that it does not establish an absolute right, since family reunification is subject to the practical and procedural conditions determined by the Directive. 100 To the extent of those standards, the Directive precludes Member States from adopting unilateral policies on thirdcountry national's family reunification. 101

Article 2 For the purposes of this Directive: (a) "third country nationaln means any person who is not a citizen of the Union within the meaning of Article 17(1) of the Treaty; (b) "refugee" means any third country national or stateless person enjoying refugee status within the meaning of the Geneva C.Onvention relating to the status of refugees of 28 July 1951, as amended by the Protocol signed in New York on 31 January 1967; (c) "sponsorn means a third country national residing lawfully in a Member State and· applying or whose family members apply for family reunification to be joined with him/her; 91 ECtHR, Judgment of 4 December 2012, No 47017/09, Butt v. Norway, para 82 . .. Emphasis added. • 5 Commission Proposal COM(l999) 638 final, Article I, emphasis added. 06 See Boeles/den Heijer et al., European Migration Law. p. 129. 97 ECJ, Parliament v. Council, C-540/03, EU:C:2006:429. ""Commission Repon, COM(2008) 610 final, p. 14. "'ECJ, Parliament v. Council, C-540/03, EU:C:2006:429, para 60. 100 Commission Proposal, COM( 1999) 638 final, p. 11. 101 Commission Repon, COM(2008) 610 final, p. 2.

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(d) "family reunification" means the entry into and residence in a Member State by family memben of a third country national residing lawfully in that Member State in order to preserve the family unit, whether the family relationship arose before or after the resident's entry; (e) "residence permit" means any authorisation issued by the authorities of a Member State allowing a third country national to stay legally in its territory, in accordance with the provisions of Article 1(2)(a) of Council Regulation (EC) No 1030/2002 of 13 June 2002 laying down a uniform format for residence permits for third country nationala< 5>; (f) "unaccompanied minor" means third country nationals or stateless persons below the age of eighteen, who arrive on the territory of the Member States unaccompanied by an adult responsible by law or custom, and for as tong as they are not effectively taken into the care of such a person, or minon who are left unaccompanied after they entered the territory of the Member States. Content

mo. I. General remarks and drafting history........................................................ II. Third country national (Article 2(a)) ......................................................... 111. Refugee (Article 2(b))..................................................................................... IV. Sponsor (Article 2(c)) .................................................................................... V. Family reunification (Article 2(d)).............................................................. VI. Residence permit (Article 2(e)).................................................................... VII. Unaccompanied minor (Article 2(f)) .........................................................

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I. General remarks and drafting history Article 2 contains six definitions of the Directive's most important terms. These definitions concern terms used in one or several provisions of the Directive. The same regulation technique is used in other Directives. 102 Article 2 aims at ensuring that these terms are interpreted identically by national law wherever they appear in the Directive. Thus, Article 2 instructs the Member States' correct implementation of the Directive. Consequently, these definitions do not have a regulatory effect of their own and Member States are not required to explicitly transpose them into national law. 2 Article 2 largely corresponds to the original proposal of the Commission, albeit with two major changes: First, the definition of a 'person enjoying subsidiary protection' in the initial proposal was deleted in the second proposal. The change is a consequence of the fact that - following the suggestions of the European Parliament during the negotiations - these persons are no longer included in the personal scope of application of the Directive. Second, unlike the three previous proposals, the final Directive contains a definition for 'unaccompanied minor' (Article 2(e)). Furthermore, Union citizens were excluded during the course of negotiations of the Directive from the definitions of Article 2(c) and (d) to bring to conformity the definitions with the exclusion of this group of persons from the scope of application (cf. Article 3(3) of the Directive). 3 Some of the definitions, in particular the definition of 'refugee' (Article 2(b)) differ from those given to the same terms in other Directives. ioJ This is partly due to the fact 1

OJ 2002 L 157/1. See for example Article 2 of the Asylum Qualification Directive 2011/95/EU and Article 2 of the Long-Term Residents Directive 2003/109/EC. 101 See the definition of 'refugee' in Article 2(d) of the Asylum Qualification Directive 2011/95/EU. (II

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that the Directive was the first one to enter into force in the field of legal migration of third-country nationals based on the newly introduced EU-competences in migration law (Article 62 et seq. TEC, now Article 77 et seq. TFEU). With the elaboration of other Directives, various concepts of European migration law were defined more precisely only after the Directive had been adopted. Nevertheless, during the negotiations on the Directive, the Commission tried to align the definitions to match with those used in other proposals or Directives, such as the former Asylum Qualification Directive 2004/ 83/EC and the former Asylum Procedures Directive 2005/85/EC. This has led to minor changes in Article 2.

II. Third country national (Article 2(a)) Article 2(a) defines the term 'third country national' as any person who is not an EU 4 citizen under Article 17(1) TEC (now Article 20(1) TFEU). Thus, Union citizens, including citizens of EU Member States not bound by the Directive,1 04 are excluded. It is not required that the third-country national, in particular the sponsor (Article 2(c)), has moved from one Member State to another to benefit from the Directive. 105 The Directive also applies to third country national sponsors who are long-tenn residents according to the Long-Term Residents Directive 2003/109/EC, 106 since that Directive does not provide for special rules on family reunification. 107 Exceptionally, the LongTerm Residents Directive 2003/109/EC contains special rules ifa third-country national long-term resident sponsor moves to a second Member State in exercise of his acquired right to free movement and the family had already been constituted in the first Member State (Article 16 of the Long-Term Residents Directive 2003/109/EC). 108 In comparing Article 2(a) with (b) and (0 thereof, it can be noticed that the latter 5 provisions explicitly refer to third country nationals and stateless persons, to the end that it may be questioned whether the Directive may equally benefit stateless persons, as they are not third country nationals sensu stricto. By definition, these persons do not possess the nationality of any third country. Contrary to the definition of the previous proposals, the third proposal explicitly included stateless persons in the definition of third-country nationals. 109 Article 2(a) - unlike the third proposal - does not explicitly refer to the New York Convention Relating to the Status of Stateless Persons of 28 September 1954. It is unclear why this clause was later deleted. Nonetheless, the drafting history of the Directive rallies for an extensive interpretation of the term 'third country national' in this regard. The definition in Article 2(a) corresponds to the initial and the second proposal thereof, with regard to which the Commission had commented that the negative definition of 'not a citizen of the Union' should be understood in line with the New York Convention of 28 September 1954 to include stateless persons.1 10 In presenting the third proposal, the Commission accordingly reiterated that the term 'third country national' should extend to stateless persons, even though this was 'only implicit in the original proposal'. 111 This supports a wide reading of Article 2(a) of the 104

Denmark, Ireland and the United Kingdom, see recitals 17 and 18 of the Directive. Schaffrin, in Cartier/De Bruycker (eds), Immigration and Asylum Law of the EU, p. 90, 98. 1°" Council Directive 2003/109/EC of 25 November 2003 concerning the status of third-country nationals who are long-term residents (OJ 2004 L 16/44). 107 Schaffrin, in Carlier/De Bruycker (eds), Immigration and Asylum Law of the EU, p. 90, 98. 108 Thym,_ Long-Tenn Residents Directive 2003/109/EC, Article 16 MN I et seq. 109 Commission Proposal, COM(2002) 225 final, p. 14, Article 2(a). 110 Commission Proposal, COM(l999) 638 final, p. 11. 111 Commwion Proposal, COM(2002) 225 final, p. 5; Commission Proposal, COM(l999) 638 final, p. I I. 105

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Directive, to include stateless persons within the meaning of the New York Convention of 28 September 1954. For the purpose of this Directive, stateless persons fall within the notion of third-country nationals. 112

III. Refugee (Article 2(b)) 6

7

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9

IO

Article 2(b) defines 'refugee' as any third-country national or stateless person enjoying refugee status within the meaning of the Geneva Convention relating to the status of refugees of 28 July 1951 (hereinafter: Geneva Convention), as amended by the Protocol signed in New York on 31 January 1967 (hereinafter: Protocol). Thus, Article 2(b) refers to the definitions of 'refugee' given by Article IA(2) of the Geneva Convention in connection with Article I (2) of the Protocol. The Geneva Convention does not grant a right to family reunification, although the principle of famify unity was recognised by the Conference which adopted the Geneva Convention in its Final Act. 113 Article IA(2) of the Geneva Convention defines 'refugee' as any person who 'owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.' The definition in Article 2(b) is not completely identical with the definition of 'refugee' in other Directives in migration law. 114 Article 2(b) does not explicitly refer to the former Asylum Qualification Directive 2004/83/EC (or its 2011 recast 115), since the latter had not yet been adopted at the time of the Family Reunification Directive. Due to the missing reference to the (former) Asylum Qualification Directive, it is unclear whether Article 2(b) can be interpreted as referring to Article I of the Geneva Convention as interpreted by the Asylum Qualification Directive 2011/95/EU. 116 The Asylum Qualification Directive 2011/95/EU spells out a uniform definition for the qualification as a refugee, which inter alia establishes uniform grounds for esdusion from being a refugee. In this vein, the Qualification Directive interprets Article l F of the Geneva Convention, which obliges Member States to recognise, in certain circumstances, that third country nationals do not qualify as refugees. Persons to whom one of the exclusionary grounds of Article 12 Asylum Qualification Directive 2011/95/EU apply cannot therefore be considered refugees, neither in the Qualification Directive. nor in the context of Directive 2003/86/EC, regardless of the fact that the latter makes reference merely to the Geneva Convention. Alternative kinds of protection, such as subsidiary protection as provided for by the Asylum Qualification Directive 2011/95/EU, temporary protection under the Temporary Protection Directive 2001/55/EC or other protection schemes according to national law do not fall under the notion of 'refugee' mentioned in Article 2(b).

Commission Proposal, COM(l999) 638 final, p. I I. Final Act of the United Nations Conference of Plenipotentiaries on the Status of Refusces and Stateless Persons, 25 July 1951, A/CONF.2/108/Rrv.1, part IV.B. 114 See Article 2(g) Asylum Procedun:s Directive 2013/32/EU, Article 2(d) Asylum Qualification Directive 2011/95/EU, or the definitions of 'applicant fur international protection' in Article 2(b) Asylum Reception Directive 2012/32/EU and Article 2(c) of Dublin Ill Regulation (EU) No 604/2013. m Asylum Qualification Directive 2011/95/EU. 11• Or the corresponding definition in Article 2(g) Asylum Procedures Directive 2013/32/EU. 112 111

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In contrast to the definition given in other Directives, Article 2(b) does not explicitly 11 exclude citizens of the Union (Article 20 TFEU). Accordingly, the provision does not explicitly reflect the principle underlying the Common European Asylum System, namely that all EU Member States accept one another as 'safe countries'. Since the Family Reunification Directive is limited in scope to third country nationals, however, Union citizens are excluded from its scope already. Accordingly, it would be redundant to explicitly include in the definition of a refugee the clarification that it does not allude to Union citizens.

IV. Sponsor (Article 2(c)) Article 2(c) describes the term 'sponsor' as 'a third country national residing lawfully 12 in a Member State and applying or whose family members apply for family reunification to be joined with him/her'.1 17 Instead of the term 'sponsor', the first proposal used the term 'applicant' as meaning 'a third-country national residing lawfully in a Member State or a citizen of the Union and applying to be joined by members of his family' .118 Whereas the right of citizens of the Union and their family members to move and reside freely within the EU was regulated by the Free Movement Directive 2004/38/EC, 119 the initial proposal covered Union citizens who have not eurcised their right to free movement. 120 Following the exclusion of this group from the scope of application of the Directive, Union citizens are no longer mentioned in Article 2(c). The sponsor must be 'residing lawfully' in a Member State. The prerequisite of 13 'lawful residence' is defined more precisely in Article 3(1) and (2) of the Directive (see below Article 3 MN 4 et seq.). The wording of Article 2(c) indicates that the requirement of a residence permit with a validity of one year applies regardless of the reasons for which the third-country national's residence was authorised. It is equally irrelevant whether the sponsor had been unlawfully resident prior to the lawful residence. Reasons for lawful residence include employment, exercise of a self-employed activity, studies, non-gainful activity, granting of refugee status. 121 Even the enjoyment of temporary and subsidiary kinds of protection may qualify for lawful residence, 122 although in that case the scope of application is limited by Article 3(2) and (3) of the Directive (see below Article 3 MN 10 et seq.).

V. Family reunification (Article 2(d)) 'Family reunification' is defined by Article 2(d) as 'the entry into and residence in a 14 Member State by family members of a third-country national residing lawfully in that Member State in order to preserve the family unit, whether the family relationship arose before or after the resident's entry'.1 23 In principle, the Directive provides for a right of third-country nationals legally residing in one of the Member States to be joined by their family members. However, during the negotiations concerning the 1

Emphasis added. Commission Proposal, 11 • OJ 2004 L 229/35. 120 Commission Proposal, 121 Commission Proposal, 122 Commission Proposal, m Emphasis added. " 11 •

COM( 1999) 638 final, Anicle 2(d), emphasis added. COM(1999) 638 final, p. 12. COM(1999) 638 final, p. 12. COM(l999) 638 final, p. 12.

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Directive, this right has been made subject to several derogations allowing Member States to restrict family reunification. 15 Whereas the first two proposals stipulated that family reunification pertained to entry and residence by family members both 'in order to form or preserve the family unit', Article 2(d) only mentions the preservation of the family unit. 124 The third proposal deleted the words 'to form' in Article 2(d). However, the Commission emphasised that this was a formal change only and did not imply any substantial change.125 In line with this view, Article 2(d) clarifies that the Directive applies 'whether the family relationship arose before or after the resident's entry'. In contrast, the Directive stipulates that family relationships may be restricted with a view to those which predate the sponsor's entry where the sponsor is a refugee (Article 9(2)). This implies e contrario that, in general, the concept of family reunification includes the two situations of family reunification mentioned above. The date of marriage - before or after the sponsor has taken up residence - is irrelevant. 16 The question, whether Article 2(d) precludes Member States when applying the Directive from distinguishing between family relationships that arose before or after the spomor's entry and applying different conditions to both groups has been decided by the ECJ in Chakroun. 126 The referring Dutch court asked whether such distinction is permissible under the Directive with regard to the resources requirement stipulated under Article 7(l)(c). 127 The ECJ has answered in the negative, pointing to the wording of Article 2(d) of the Directive, which 'defines family reunification without drawing any distinction based on the time of marriage of the spouses, since it states that that reunification must be understood as meaning the entry into and residence in the host Member State by family members of a third-country national residing lawfully in that Member State in order to preserve the family unit, 'whether the family relationship arose before or after the resident's entry'. 123 17 However, the concept of 'family reunification' of Article 2(d) requires the existence of a family. Thus, family formation stricto ,ensu, meaning entry in order to conclude a marriage is not covered by the definition of family reunification in Article 2(d). The difference to the concept of family formation discussed above (see above, Article 2 MN 15 et seq.) is that in those cases the marriage is concluded abroad, so that the family exists when the sponsor or his family members apply for reunification. In the case discussed here, however, the family does not exist, since a marriage is yet to be formed in the receiving country where the sponsor resides. The legal situation of persons wishing to enter the territory of a Member State in order to contract a marriage is not within the scope of the Directive. 129 The Commission has specified that this situation remains subject to national law. 130 Insofar, the provision corresponds to the scope of application of 'family' in Article 8 ECHR which requires an existing family.13 1 The ECtHR has stated repeatedly that Article 8 ECHR does not include a guarantee on

Emphasis added. Commission Proposal, COM(2002) 225 final, p. 5. 126 ECJ, Chakroun, C-578/08, EU:C:20I0:117. 127 EC), Chakroun, C-578/08, EU:C:2010:117. 121 ECJ, Chakroun, C-578/08, EU:C:2010:117. 12• Commission Proposal, COM(I999) 638 final, p. 12. ll" Commission Proposal, COM(I999) 638 final, p. 12 131 Grabenwarter, European Convention on Human Rights. Commentary (Beck, 2014), p. 193; Russo, in: Pettiti/Decau.x/lmbert (eds), La Convention Europeenne des Droits de !'Homme (Economia, 1999), Art. 8 § I, p. 316. 12 •

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family formation. 132 Family formation is not part of the right to respect for family life (Article 8 ECHR), but of the right to marry (Article 12 ECHR). m

VI. Residence permit (Article 2(e)) Article 2(e) establishes the formal requirements of a residence title by referring to 18 Article 1(2)(a) of Council Regulation (EC) No 1030/2002 of 13 June 2002 laying down a uniform format for residence permits for third country nationals. 134 The Regulation stipulates that certain titles may not be regarded as residence permits and therefore cannot be considered for the purpose of Article 2(e) either. Thus, visa and permits that are issued for the duration of application procedures on asylum etc. may not be considered residence permits (Article l(2)(a)) under Regulation (EC) No 1030/ 2002).m The definition of Article 2(e) is rdevant for Article 3(1) of the Directive which specifies that the sponsor must hold a specific residence permit, namely one to which Article 2(e) refers. The definition of Article 2(e) is further relevant for Article 13(2), which specifies that Member States are to grant a family member a residence permit which is in conformity with Article 2(e).

VII. Unaccompanied minor (Article 2(f)) The definition of the term 'unaccompanied minor' was introduced in the Directive 19 during the final round of negotiations in the Council. 136 The definition is relevant for Article 10(3) of the Directive, which includes specific rules for unaccompanied minor refugees, such as the right to be joined by their parents. Thus, the purpose of distinguishing unaccompanied minors from other persons is to grant them - given their specific needs and their vulnerability 137 - additional rights stipulated in Article 10(3) of the Directive. 138 The right to be joined by the parents is based on Article 22(2) of the Convention of the United Nations Convention on the Rights of the Child of 1989, 139 which obliges the States Parties 'to provide, as they consider appropriate, co-operation in any effort by the United Nations ... to trace the parents or other members of the family of any refugee child in order to obtain information necessary for reunification with his or her family.' The definition corresponds to the wording in other Directives on asylwn issues. 140 An 20 equivalent definition was first mentioned in the first subparagraph of Article l(l) of Council Resolution 97/C 221/03 of 26 June 1997 on unaccompanied minors who are nationals of third countries 141 which establishes guidelines for the treatment of unaccompanied minors, with regard to matters such as the conditions for their reception, m ECtHR, Judgment of 13 June 1979, No. 6833/74, Marckx v. Belgium, para 31; Judgment of 28 May 1985, !'.o 9214/80, 9473/81 and 9474/81, Abdulaziz, Caba/es and Ba/kandali v. The United Kingdom, para 68. 133 Grabenwaner, European Convention on Human Rights. Commentary (Beck, 2014), p. 193. 134 OJ 2002 L 157/1. m Dienelt, Auswirkungen auf das AufenthG, p. 57. 116 See Commission Proposal, COM(2002) 225 final, which did not yet contain such a provision. u 7 Commission Proposal, COM(l 999) 638 final, p. 16. ua For this effect, see EC), A &: S, C-550/16, EU:C:2018:248, paras 34 et seq. 139 See explanation of the Commission in Commission Proposal. COM( 1999) 638, p. 16. 14" See Article 2(h) of the Asylum Reception Directive 2013/32/EU; Article 2(1) of the Asylum Qualification Directive 2011/95/EU; Article 2(0 of the Temporary Protection Directive 2001/55/EC. 141 OJ 1997 C 221/3.

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stay and return and - in the case of asylum seekers - the handling of applicable procedures (Article 1(3) of the Resolution). 21 According to the definition of Article 2(0, the age of majority is 18 years, which in general corresponds to Article I of the UN Convention on the Rights of the Child (CRC). Thus, in contrast to the second subparagraph of Article 4(1) of the Directive, which refers to the age of majority stipulated by national law, Article 2(0 does not refer to national law. Given the explicit wording of Article 2(f) and the purpose of this provision to protect the vulnerable, Member States are cannot unilaterally set an age of majority below 18 years. 1-u In A & S, the Court decided that a person who was below the age of 18 at the time of entry into the territory of a Member State is to be considered a 'minor' for the purpose of Article 2(0, even if - during the process of application for international protection - the person attains the age of majority. 143 22 According to the definition given in Article 2(f), a minor is regarded as 'unaccompanied' in case (s)he has entered a Member State's territory 'unaccompanied by an adult responsible by law or custom, and for as long as [(s)he is ... ] not effectively taken into the care of such a person, or [is ... ) left unaccompanied after he or she entered the territory of the Member States.' 144 This wording does not specify whether the determination of an adult responsible refers to the 'law and custom' of the country of origin or, conversely, of the Member State. However, the purpose of Article 2(f) is to establish a privileged scheme for unaccompanied minors, which argues in favour of an interpretation that pertains to the law and custom of the country of origin. Otherwise, the Member State of destination could, by recognising the status of an adult responsible, limit the application of Article 2(0 and consequently Article 10(3) of the Directive.

Article 3 I. This Directive shall apply where the sponsor is holding a residence permit issued by a Member State for a period of validity of one year or more who has reasonable prospects of obtaining the right of permanent residence., if the members of his or her family are third country nationals of whatever status. 2. This Directive shall not apply where the sponsor is: (a) applying for recognition of refugee status whose application has not yet given rise to a final decision; (b) authorised to reside in a Member State on the basis of temporary protection or applying for authorisation to reside on that basis and awaiting a decision on his status; (c) authorised to reside in a Member State on the basis of a subsidiary form of protection in accordance with international obligations, national legislation or the practice of the Member States or applying for authorisation to reside on that basis and awaiting a decision on his status. 3. This Directive shall not apply to members of the family of a Union citizen. 4. This Directive is without prejudice to more favourable provisions of: (a) bilateral and multilateral agreements between the Community or the Community and its Member States, on the one hand, and third countries, on the other;

141

ECJ, A &: S. C-550/16, EU:C:2018:248, para 42. ECJ, A&: S, C-550/16. EU:C:2018:248, para 64; see similarly, ECJ, Belgian State, C-133/19, C-136119 & C-137/19, EU:C:2020:577, para 44. 144 Emphasis added. See equally, ECJ, A &: S, C-550/16, EU:C:2018:248, para 38. 141

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(b) the European Social Charter of 18 October 1961, the amended European Social Charter of 3 May 1987 and the European Convention on the legal status of migrant worken of 24 November 1977. 5. This Directive shall not affect the possibility for the Member States to adopt or maintain more favourable provisions. C.Ontent

mn. I. II. Ill. JV. V.

General remarks, structure and drafting history..................................... I Personal scope of application (Article 3(1)) ............................................. 3 Non-application (Article 3(2))..................................................................... 10 Union citizens (Article 3(3)) ........................................................................ 14 More favourable provisions in international agreements (Article 3 (4))...................................................................................................................... 15 VI. More favourable provisions in national law (Article 3(5)) ................... 18

I. General remarks, structure and drafting history Article 3(1)-(3) concern the scope of application of the Directive ratione personae. Whereas Article 3( 1) specifies requirements for the sponsor and the family members, Article 3(2)-(3) exclude certain groups of persons from the personal scope of application of the Directive. Article 3(4)-(5) contain rules on the relationship with international agreements and national law. Although the general structure of Article 3 has remained untouched, the provision 2 has experienced three major changes during the negotiation process. Firstly, persons enjoying subsidiary forms of protection were deleted from the scope of application_ The second major change was that EU citizens have been completely excluded from the scope of application of the Directive (Article 3(3)). Finally, the third proposal, following Germany's request, inserted an additional condition in Article 3(1 ): It requires the sponsor to have 'reasonable prospects of obtaining the right of permanent residence'. 14s

II. Personal scope of application (Article 3(1)) Article 3( I) specifies the scope of application ratione personae by describing the 3 residence permit of the sponsor and by stipulating some requirements which the family member must fulfil. The provision is mandatory. 146 Member States must accept those sponsors who fulfil the requirements stipulated in Article 3( I). As defined by Article 2(c), the sponsor must be a third-country national legal 4 resident of a Member State. The definition of a third-country national mentioned in Article 2(a) includes all third-country nationals irrespective of the reasons for their residence. 147 However, third-country nationals legally residing in a Member State are eligible sponsors only if they fulfil additional requirements for the type of residence permit according to Article 3( I). First, the residence permit issued by a Member State must be valid for at least one year. This requirement was already included in the first proposal. As Article 3( I) stipulates that the period of validity shall be 'of one year or 145 Commission Proposal, COM(2002) 225 final, p. 5, see Boeles/den Heijer et al., European Migration Law, p. 133. 1411 Labayle/Pascouau, Synthesis Report, p. 36. 147 Commission Proposal, COM(l999) 638 final, explanations on Article 3, p. 12.

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more', Member States are free to require a period of validity of more than one year. However, the period required cannot exceed two years. This follows from Article 8( l ), which stipulates that 'Member States may require the sponsor to have stayed lawfully in their territory for a period not exceeding two years, before having his/her family members join him/her.' 148 If the qualifying period was longer, the right to family reunification would be devoid of substance. 149 Pursuant to the definition of 'residence title' in Article 2(e), certain titles, such as visas (Article 1(2)(a) of Regulation (EC) No 1030/2002) may be considered as insufficient to prove that the one-year requirement is fulfilled. Third-country nationals residing in a Member State and holding a residence permit valid for less than a year are not entitled to family reunification, as may be the case for temporary or seasonal workers. 150 S Second, the sponsor must have reasonable prospect of obtaining the right of permanent residence (Article 3(1)). According to the Commission the requirement exempts sponsors from family reunification who have a temporary residence pennit without the possibility of renewal. 151 In particular, the exclusion applies to au pairs, exchange and placement students. 152 Seasonal workers and temporary workers are also excluded. 153 The Directive does not prevent Member States from granting them family reunification under national law. 1!>4 However, demanding that the sponsor already has a permanent residence permit as a precondition to family reunification is a breach of the Directive, which only demands 'reasonable prospects' of obtaining a pennanent residence status. 155 Sponsors holding a Blue Card are not required to fulfil the requirement of a reasonable prospect. 156 Several Member States refrain from imposing on potential sponsors a requirement of a 'reasonable prospect', 157 thus utilising the possibility to adopt more favourable provisions in national law (see Article 3 MN 19 et seq.). 6 The prospect required must be 'reasonable'. It is not entirely clear what this means, as emphasised by several Member States during the stakeholder process following the Commission Green Paper on the right to family reunification.1 58 In order to asses a sponsor's reasonable prospects, Member States should examine the prospect of obtaining the right to permanent residence 'on a case-by-case basis taking into account the individual circumstances, such as the nature and type of residence pennit, the administrative practice, and other relevant factors related to the sponsor's situation.' 159 This test pivots on a prognosis of whether the sponsor will prospectively meet the criteria for long term residence in the future, which may afford Member States a margin of appreciation.160 The fact that additional conditions can be imposed with regard to integration, 148

Emphasis added. ,.. Commission Proposal, COM(l999) 638 final, explanations on Article 10, p. 18. 150 See Boeles/den Heijer et al., European Migration Law, p. 134. 1st Commission Proposal, COM(2002) 225 final, p. 5. m Commission Proposal, COM(2002) 225 final, p. 5. 151 Commission Proposal, COM(l999) 638 final, explanations on Article 3; Schaffrin, in Carlier/Dc Bruycker (eds), Immigration and Asylum Law of the EU, p. 90, 103. 1s4 Labayle/Pascouau, Odysseus Synthesis Report on Directive 2003/86/EC, p. 36. 15 5 Peers/Guild et al, EU Immigration Law, p. 250. 156 Boeles/den Heijer et al., European Migration Law, p. 134. 157 See Commission Report, COM(2019) 162 final, p. 2. 158 8 Member States do not apply this criterion in their national law due to its unclarity: Commission, Summary of Stakeholder Responses to the Green Paper on the Right to Family Reunification, 11 May 2012, p. 6, available at: https://cc.europa.eu/home-affairs/sites/homeaffairs/files/what-is-new/public-consultation/2012/pdf/0023/summary_of_stakeholder_responses_en.pdf [last accessed 4 March 2021]. 15• Commission Communication, COM(2014) 210 final, p. 4. 160 Ibid.

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housing and means of subsistence in order to qualify for obtaining a permanent residence permit does therefore not exclude the application of the Directive. It is questionable under which conditions residence permits issued for a specified 7

renewable period of time qualify under the Directive as a 'reasonable prospect of obtaining the right of permanent residence'. Immigration laws of EU Member States differ substantially with regard to the type and purpose of renewable residence permits. Some Member States provide for renewable residence permits which may eventually become permanent. Some Member States distinguish between immigrant status and status of limited residence. The requirement of a reasonable prospect of obtaining the right of permanent residence permit cannot be interpreted in a very formal and restrictive way as covering only residence permits which under national law provide for a type of 'immigrant status'. Since the clause is intended to exclude residence permits issued for a specific purpose and limited time period, a sponsor will routinely fall within the scope of the Directive if (s)he holds a permit that - given regular circumstances - may be renewed and eventually transformed into a permanent residence permit. In contrast, residence permits which do not, by their very nature, allow for prolongation or renewability, will usually not support the conclusion that a person has a reasonable prospect of obtaining the right of permanent residence, 161 even if an applicant 'changes tracks', from one type of residence authorisation to another, granted for a different purpose. Nonetheless, the repeated issuing of these formally nonrenewable extensions with the sole intention of thwarting a person's 'reasonable prospects' to permanent residence would undermine the objective of the Directive. 162 In that regard, Peers notes that the question of renewability should take into account, where relevant, whether other EU legislation 163 provides for the residence permit to be renewed. 164 Some Member States authorise family reunification where the sponsor has a temporary residence permit subject to a minimum period of residence. 165 Even if the sponsor does not have the opportunity in this situation to prove her or his reasonable prospect of obtaining a permanent residence permit, this approach does not appear to violate Article 3( 1).1 66 Article 8(1) explicitly permits Member States to require of third country nationals a minimum period of stay before allowing for family reunification, which renders such a national practice in line with the Directive. On the other hand, a sponsor may not rely upon the Directive if the individual 8 situation is subject to national rules which permit the competent authorities to terminate or refuse renewal of a residence permit. Such a decision may be based on public order considerations, 167 or the failure to comply with the terms of a residence permit, or where the original purpose of a residence permit has ceased to exist. With regard to the family members of a sponsor, Article 3(1) specifies that they must 9 be 'third country nationals of whatever status'. Their legal status in the Member State is thus irrelevant. Family members may reside in the Member State for other reasons than family reunification. 168 Therefore, the Directive is also applicable to those family members who are asylum-seekers, who have received a negative decision concerning an Commission Communication, COM(2014) 210 final, p. 4. Commission Communication, COM(2014) 210 final, p. 4, S. 16l For example the Blue Card Directive 2009/50/EC. the former Researchers Directive 2005/71/EC or the Asylum Qualification Directive 2011/95/EU. 1M Peers/Guild et al, EU Immigration Law, p. 252. 165 As practiced in some Member States, Commission Repon. COM(2008) 610 final, p. 4. 166 Peers argues that this practice is 'objectionable', Peers/Guild et al, EU Immigration Law, p. 250. 167 Whose application is subject to the proponionality assessment; ECJ, G.S., C-381/18 & 382/18, EU: C:2019:1072, para 64. 1.. Commission Proposal, COM(l999) 638 final, p. 13. 161

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application for international protection, who are staying illegally or fall within the scope of a type of temporary protection. 169

III. Non-application (Article 3(2)) Article 3(2) excludes certain groups of persons from being sponsors. The first category are asylum seekers, Le. applicants for international protection before a final decision on their application has been made (Article 3(2)(a)). The limitation is a result of the 'reasonable prospects for residence' criterion, as stipulated in Article 3(1).17° Accordingly, the Directive is applicable in accordance with Article 9 to refugees. 171 11 The second category concerns persons residing in a Member State on the basis of temponry protection or applying for authorisation to reside on that basis and awaiting a decision on status (Article 3(2)(b)). Family reunification of this category of persons is covered by the Temporary Protection Directive 2001/55/EC. 172 Beneficiaries of temporary protection have a right to family reunification according to Article 15 of that Directive under the condition that the family member is either him- or herself a beneficiary of temporary protection of a Member State or still in need of it 173 12 The third category concerns persons enjoying subsidiary forms of protection. Whereas the original Commission proposal had included this group of persons, it was excluded from the scope of the Directive following the European Parliament recommendation.174 Subsidiary protection may be 'protection in accordance with international obligations, national legislation or the practice of the Member States' (Article 3(2)(c)). Like in the case of persons enjoying temporary protection, applicants who await their decision on such status are equally excluded (Article 3(2)(c)). In E., the ECJ clarified that the Directive likewise excludes sponsors residing on the basis of a subsidiary form of protection where a Member State has rendered the provisions of the Directive applicable to them by virtue of domestic law.1' 5 13 The rights connected to the status of subsidiary protection were subsequently regulated by the former Asylum Qualification Directive 2004/83/EC and its 2011 RecastY6 The Commission had submitted earlier that this Directive should allow for family reunification. m However, the Asylum Qualification Directive 2011/95/EU does not foresee a right to family reunification, but only the right to 'family unity' (Article 23(1) thereoO, particularly concerning persons already present in one of the Member States. 178 Accordingly, refugees may benefit from family reunification, since they fall within the scope of application of the Family Reunification Directive 2003/86/EC, whereas beneficiaries of subsidiary protection are excluded therefrom (see below Articles 9-12 MN 5). Thus, the current legal framework of Union law does not afford family reunification to beneficiaries of subsidiary protection. 10

169 Commission Proposal, COM(l999) 638 final, p. 13, unlike the in Article 3(2)(b) of the Directive, which only applies to the sponsor, not the family member. 110 Schaffrin, in Carlier/De Bruycker (eds), Immigration and Asylum Law of the EU, p. 90, 106; Boeles/ den Heijer et al., European Migration Law, p. 132. 171 Bodes/den Heijer et al., European Migration Law, p. 132. 172 OJ 2001 L 212/12. 171 See Skordas, Temporary Protection Directive 2001/55/EC. Article 15 MN 13, in thiJ volume. 174 OJ 2000 C 135/75 and Commission Proposal, COM(2000) 624 final, p. 2. 11s ECJ, E, C-635/17, EU:C:2019:192, paras 33 et seq. 17 • See Article 18 in conjunction with Article 15. 177 Commission Proposal, COM(2000) 624 final, p. 3. 178 Walter, Familienzusammenfuhrung. p. 175.

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IV. Union citizens (Article 3(3)) Article 3(3) excludes Union citizens from the scope of application. The first 14 proposal only excluded family members of Union citizens exercising their right to free movement of persons from the scope of application. 179 Family reunification to those EU citizens today is regulated in the Free Movement Directive 2004/38/EC. 180 By contrast, the first proposals on the Family Reunification Directive 2003/86/EC explicitly included family reunification to non-mobile Union citizens, i.e. EU citizens who have not exercised the right of free movement. The reason underlying this rule was that norms on free movement of the EC-Treaty are not applicable to this group of Union citizens. 181 Although the Commission's proposal to include family reunification to EU citizens was welcomed for the reason that it would have put to an end situations of so-called 'reverse discrimination', 182 Germany vehemently opposed this. It argued that such a provision would have extended family reunification to ethnic Germans (so-called 'Awsiedler1 and naturalized Germans. 183 The Netherland's government was similarly sceptical, wishing to maintain restrictive rules regarding its own nationals. 1114 After non-mobile Union citizens were exempted from the scope of the Directive, the Commission indicated that another legislative instrument should be adopted to that end, which has not been achieved. Accordingly, family reunification of this group is still subject to national law. 185 Where a Member State decides, by virtue of national law, to apply the Directive to Union citizens who have not exercised their right to free movement, the Court exercises jurisdiction pursuant to Article 267 TFEU for the purpose of ensuring a uniform interpretation of its provisions, even if applied in national law. 186 Whereas some Member States apply the Directive to dual nationals, Article 3(3) is unclear in this respect.' 87 However, in line with the objective of the Directive, it should be presumed that this provision should be interpreted to cover dual nationals who hold the nationality of one Member State.

V. More favourable provisions in international agreements (Article 3(4)) Article 3(4) provides for the applicability of more favourable provisions in interna- 15 tional agreements concerning family reunification. According to Article 3(4), the '"' Commission Proposal, COM(1999) 638 final, Article 3(3). 1 Free Movement Directive 2004/38/EC (OJ 2004 L 158/77). As explicitly confirmed by the ECJ in Ymeraga, C-87/12, EU:C:2013:291, paras 26, 27, stating that the situation where third-country nationals wish to rewtite with a Union citizen who resides in a Member State is covered by 1he Free Movement Directive 2004/38/EC. aims to 'facilitate the exercise of the primary and individual right to move and reside freely within the territory of the Member States that is conferred directly on Union citizens by the FEU Treaty and that it aims in particular to strengthen that righ1'. 181 ECJ, Carpenter, C-60/00, EU:C:2002:434, paras 37 et seq. 182 Boeles. 'Directive on Family Reunification: Are the Dilemmas Resolved?', EJML 3 (2001), p. 61, 63. 183 Hauschild, Neues Einwanderungsrecht, p. 269; Council doc. 11524/00 of 4 January 200 I, p. 3. 184 Council doc. 5682/01 of 31 January 2001, p. 5; Walter, Familienzusammenfiihrung. p. 271 and 274; Groenendijk/Femhout et al., The Family Reunification Directive, p. 12. 185 On the different rules applying to the different categories of persons, and the implicit fragmentation of family reunification rights, see Staver, 'Free Movement and the Fragmentation', EJML 15 (2013), p. 69-89. . 116 ECJ, C and A, C-257/17, EU:C:2018:876, para 32. 187 Groenendijk/Femhout et al., The Family Reunification Directive, p. 11.

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Directive does not interfere with a Member State's obligations under the agreements and treaties mentioned in that provision. 188 These are, first of all. 'bilateral and multilateral agreements between the Community or the Community and its Member States, on the one hand, and third countries, on the other' (Article 3(4)(a)). Furthermore, more favourable provisions can be contained in the specified multilateral agreements mentioned: the Agreement creating the European Economic Area of 1992, the Association Agreement with Turkey of 1%2 and the Europe Agreements which have been concluded with countries applying for accession in central and Eastern Europe and the Euro-Mediterranean Association Agreement with Morocco and Tunisia. 189 Article 3(4) (a) is not limited to emting agreements, but relates to agreements that may be concluded in the future, as harmonisation in this field is not comprehensive. 190 According to Article 3(4)(b), the Directive is also without prejudice to 'the European Social Charter of 18 October 1961, the amended European Social Charter of 3 May 1987 191 and the European Convention on the legal status of migrant workers of 24 November 1977'. Article 3(4)(b) only applies to Member States bound by those agreements. 192 16 The European Social Charter of 1961 193 has been ratified by 27 States and the Revised European Social Charter has been ratified by 34 States, with all EU Member States having ratified one or the other. 194 The scope of application of the European Social Charter is limited to nationals of the Contracting States and recognised refugees, regardless of their nationality. 195 Article 19 of the European Social Charter regulates the right of migrant workers and their families to protection and assistance. In particular, it is provided that with a view to ensuring the effective exercise of the right of migrant workers and their families to protection and assistance in the territory of any other Party, the Parties undertake 'to facilitate as far as possible the reunion of the family of a foreign worker permitted to establish himself in the territory' 196 (Article 19(6) European Social Charter). The provision does not entail a direct right to family reunification. 197 However, the Committee of Independent Experts has interpreted Article 19(6) European Social Charter broadly, frequently interpreting the duty to 'facilitate ... the reunion' as an obligation to assist migrant workers and their families by creating the conditions which make family reunion possible. 198 The validity of restrictions will be evaluated in the light of Article 19(6) European Social Charter.

Emphasised by the ECJ, Parliament v. Council, C-540/03, EU:C:2006:429, para 107. Boeles/den Heijer et al., European Migration Law, p. 133, note 335. I\IO Commission Proposal, COM(2002) 225 final, p. 5. '"'As Ecker, Familienzusammenfuhrung. p. 74, note 185 observes, the year 1987 seems to be an editorial mistake. In fact, reference should be made to the revised European Social Charter of 3.5.1996 which entered into force on 1.7.1999 after three signatory states had ratified the revised Charter, http:// conventions.coe.intffreaty/Commun/ChercheSig.asp?NT=l63&CM=8&DF=06/I0/2009&CL=ENG !last accessed 2 December 2020]. 192 Ecker, Familienzusammenfiihrung. p. 74. 193 European Social Chaner of 1961, CETS No 35, entry into force on 262.1965 after five Member States of the Council of Europe had ratified it, available at: hnp://www.coe.int/t/dghl/monitoring/ socialcharter/Presentationffreatieslndex_en.asp !last accessed 2 December 2020]. 194 Stale of ratifications as of 3 December 2020, available at: hnp://www.coe.int/t/dghl/monitoring/ socialcharter/Presentation/Overview_en.asp !last accessed 3 December 2020]. M Para I and 2 of the Attachment to the Chaner; Walter, Familienzusammenfiihrung, p. 92. 196 Emphasis added. 197 Walter, Familienzusammenfiihrung, p. 96. 198 Cholewinski, Migrant Workers in International Human Rights Law. Their Protection in Countries of Employment (OUP, 1997), p. 344. iu 1""

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The European Convention on the legal status of migrant worken 199 of 1977 has been 17 ratified by eleven State Parties, thereof only six EU Member States. 200 Four EU Member States have signed but not ratified the Convention. 201 The Convention only applies to citizens of member states of the Council of Europe which are party to the Convention. Article 12(1) of the Convention specifically deals with family reunion and authorises the spouse and the unmarried minor dependent children of a migrant worker to join her or him, provided the sponsor is lawfully employed in the territory of a Contracting Party and given that these family members are dependent on the migrant worker. However, this 'entitlement' is subject to some important caveats; the migrant worker shall must be able to provide for 'housing considered as nonnal for national workers in the region where the migrant worker is employed' (Article 12(1), first sentence of the Convention). This provision is less restrictive than Article 7 (1 )(a) of the Directive, since it does not require housing 'for a comparable family). and the receiving country may render the authorization of family reunification 'conditional upon a waiting period which shall not exceed twelve months' (Article 12(1) thereof, second sentence). This waiting period is significantly shorter than the optional two-year waiting period mentioned in Article 8( 1) of the Directive. Member States bound by the Convention are limited to the twelve-months waiting period by virtue of Article 3(4)(b) of the Directive. However, a State Party also bound by the Directive may not rely upon las favourable provisions of the Convention. For example, according to Article 12(2) of the Convention, any State may make family reunification 'conditional upon the migrant worker having steady resources sufficient to meet the needs of the family', which implies wider state discretion and therefore seems less favourable than the Directive - specifically, Article 7(l)(c) which only allows Member States to require 'stable and regular resources which are sufficient to maintain himself/ herself and the members of his/her family, without recourse to the social assistance system of the Member State concerned' The Convention also permits a State Party to temporarily derogate from the obligation of family reunification 'for one or more parts of its territory' (Article 12(3) of the Convention) which is not allowed under the Directive.

VI. More favourable provisions in national law (Article 3(5)) Article 3(5) allows for the 'the possibility for the Member States to adopt or maintain 18 more favourable provisions' in their national law. 202 This is one of the most controversial provisions of the Directive, even though it has not been discussed in the Commission's Guidance for Application. The purpose of this provision is to compensate for the fact that the Directive must be considered as only a first step on the way to full hannonisation. 201 The provision was inserted by the third proposal. Remarkably, when a general optional clause - which would have contained a standstill clause and allowed more favourable ,.,. European Convention on the legal status of migrant workers, ETS No 93, entry into force on 1 May 1993, available at: http:/ /conventions.coe.int/Treaty/Commun/QueVoulezVous.asp?NT=093&CM=4& CL=ENG [last accessd 3 December 2020). 200 France, Italy, the Netherlands, Portugal, Spain and Sweden. The non-EU State Parties an Albania, Moldova, Norway, Turkey and Ukraine. The state of ratification is available at: http://conventions.coe.int/ Treaty/Commun/ChercheSig.asp?NT=093&CM=B&DF=Ol/12/2009&CL=ENG [last accessed 3 December 20201. 201 Germany, Greece and Luxemburg signed the Convention in 1977, Belgium in 1978, all without subsequent ratification thereof. zoz See Thym, Constitutional Framework, MN 28 et seq. on the role and interpretation of clauses on more favourable national provisions. zo 3 Commission Proposal, COM(2002) 225 final, p. 2, 6; see equally Boeles/den Heijer et al., European Migration Law, p. 133.

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national arrangements to be maintained - was first proposed by the European Parliament, the Commission rejected it arguing that it compromised harmonisation. 204 19 The term 'more favourable provisions' implies that Article 3(5) may not be used to lower national standards concerning family reunification. Against this background, it could be questioned whether this provision may be read in a way that would allow an extension of the personal scope of application of the Directive. In C and A, the ECJ clarified that Member States, once they decide to apply the provisions of the Directive to family members of EU citizens who have not exercised their right to free movement, they act by virtue of national law. 205 The same argument featured in TB, where the Court ruled that the Directive allows Member States latitude in determining which family members of a refugee may qualify for family reunification, but only on the condition that these family members are 'dependent' on the refugee. 206 In in this regard, the Court added· that this finding is 'without prejudice to the possibility for Member States, under Article 3(5) of [the Family Reunification Directive), to confer a right of entry and residence under more favourable conditions, on the basis of their national law alone.' 107 This suggests that the Court does not permit an artificial inflation of the personal scope of the Directive by virtue of the 'more favourable' provision. Rather, it explicates that, doctrinally, more beneficial treatment of those third-country nationals who fall outside the personal scope of the Directive are put to practice by virtue of national law.

CHAPTER II Family members

Article 4 I. The Member States shall authorise the entry and residence, punuant to this Directive and subject to compliance with the conditions laid down in Chapter IV, as well as in Article 16, of the following family members: (a) the sponsor's spouse; (b) the minor children of the sponsor and of his/her spouse, including children adopted in accordance with a decision taken by the competent authority in the Member State concerned or a decision which is automatically enforceable due to international obligations of that Member State or must be recognised in accordance with international obligations; (c) the minor children including adopted children of the sponsor where the sponsor has custody and the children are dependent on him or her. Member States may authorise the reunification of children of whom custody is shared, provided the other party sharing custody has given his or her agreement; (d) the minor children including adopted children of the spouse where the spouse has custody and the children are dependent on him or her. Member States may authorise the reunification of children of whom custody is shared, provided the other party sharing custody has given his or her agreement. The minor children referred to in this Article must be below the age of majority set by the law of the Member State concerned and must not be married.

Commission Proposal. COM(2000) 624 final, Explanatory Memorandum on amendment 9, p. 4. EC), C. and A .. C-257117, EU:C:2018:876, para 31. 200 EC), TB, C-519/18, EU:C:2019:1070, paras 40 et seq. 20 ~ ECJ, TB, C-519/18, EU:C:2019:1070, para 43, emphasis added. llM 20

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By way of derogation, where a child is aged over 12 years and arrives independently from the rest of his/her family, the Member State may, before authorising entry and residence under this Directive, verify whether he or she meets a condition for integration provided for by its existing legislation on the date of implementation of this Directive. 2. The Member States may, by law or regulation, authorise the entry and residence, pursuant to this Directive and subject to compliance with the conditions laid down in Chapter IV, of the following family members: (a) first-degree relatives in the direct ascending line of the sponsor or his or her spouse, where they are dependent on them and do not enjoy proper family support in the country of origin; (b) the adult unmarried children of the sponsor or his or her spouse, where they are objectively unable to provide for their own needs on account of their state of health. 3. The Member States may, by law or regulation, authorise the entry and residence, pursuant to this Directive and subject to compliance with the conditions laid down in Chapter IV, of the unmarried partner, being a third country national, with whom the sponsor is in a duly attested stable long-term relationship, or of a third country national who is bound to the sponsor by a registered partnership in accordance with Article 5(2), and of the unmarried minor children, including adopted children, as well as the adult unmarried children who are objectively unable to provide for their own needs on account of their state of health, of such persons. Member States may decide that registered partners are to be treated equally as spouses with respect to family reunification. 4. In the event of a polygamous marriage, where the sponsor already has a spouse living with him in the territory of a Member State, the Member State concerned shall not authorise the family reunification of a further spouse. By way of derogation from paragraph l(c), Member States may limit the family reunification of minor children of a further spouse and the sponsor. 5. In order to ensure better integration and to prevent forced marriages Member States may require the sponsor and his/her spouse to be of a minimum age, and at maximum 21 years, before the spouse is able to join him/her. 6. By way of derogation, Member States may request that the applications concerning family reunification of minor children have to be submitted before the age of 15, as provided for by its existing legislation on the date of the implementation of this Directive. If the application is submitted after the age of I 5, the Member States which decide to apply this derogation shall authorise the entry and residence of such children on grounds other than family reunification. Content

I. General remarks and drafting history........................................................ II. The right to family reunification for the nuclear family (Article 4( I)) I. Spouse (Article4(1)(a))............................................................................. 2. Minor unmarried children (Article (4)(l)(b)-(d) and the second subparagraph).............................................................................................. a) Minor children of the sponsor and his/her spouse (lit. b) .......... b) Minor children of the sponsor (lit. c)............................................... c) Minor children of the sponsor's spouse (lit. d) .............................. 3. Condition for integration for minor children (third subparagraph of Article (4)(1))..........................................................................................

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III. Optional admission of first-degree relatives and adult children (Article 4(2)) ···················-··-·············--·--··--·--·---······-······················--············· 25 [V. Optional admission of unmarried and registered partners

V. VI. VU. VUL

(Article 4(3)) ·································································-····································· Optional admission of persons not mentioned in Article 4 ................. Polygamous marriages (Article 4(4)).......................................................... Minimum age for spouses (Article 4(5)) ................................................... Age limit of 15 years for minor children (Article 4(6)) ............ -...........

31 38

40 45

48

I. General remarks and drafting history Article 4 concerns the personal scope of application of the family members that are eligible for family reunification. Particular rules apply to refugees according to Article 10 (see below Articles 9-12 MN 8 et seq). 2 The Article was changed significantly during the negotiation process. The first proposal followed the conclusions of the European Council of Tampere that the rights of thirdcountry nationals should be aligned to those of Union citizens. 208 The draft directive covered a large scope of family members embracing the nuclear family but also unmarried partners if the legislation of the Member State treated their situation corresponding to that of married couples 209, relatives in the ascending line of the sponsor or his spouse or unmarried partner 10, and adult children who are objectively unable to provide for their own needs due to reasons of state of health. 211 The proposal was opposed by Member States. The Commission, in reaction to the concerns of Member States, considered it impossible to reach a consensus on the obligation to allow entry and residence beyond the nuclear family. 212 The third proposal which largely corresponds to the final Directive limited the categories of family members who are entitled to family reunification to the nuclear family, i.e. the spouse and minor children. 213 To compensate for these restrictions, a number of optional provisions were introduced in Article 4(2) and (3) that enable Member States to grant family reunification to family members beyond the nuclear family. 214 Furthermore, two provisions were inserted which allow restriction of family reunification of minor children above 12 years of age for the purpose of integration (Article 4(1) third subparagraph) and above 15 years of age for purposes of migration management (Article 4(6)). Article 4(4), which was already contained in the original proposal, restricts family reunification for spouses to one in case of a polygamous marriage. Article 4(5) contains an optional provision enabling the Member States to further restrict family reunification by requiring a minimum age for spouses. I

II. The right to family reunification for the nuclear family (Article 4(1)) 3

Article 4(1) determines that members of the nuclear family, i.e. the spouse and minor children, are entitled to family reunification. This provision 'imposes precise positive obligations, with corresponding dearly defined individual rights, on the Member States, 200 Tampere European Council, Conclusion of the Presidency No 18, available at: http://www.europarl. europa.eu/swnm.its/tam_de.htm [last accessed I February 2021]. 209 Commission Proposal, COM(1999) 638 final, p. 26, Anide 5(1)(a). no Commission Proposal, COM( 1999) 638 final, p. 26, Article 5( I )(d). 211 Commission Proposal, COM(1999) 638 final, p. 26, Anicle 5(1)(e). 212 Commission Proposal, COM(2002) 225 final, p. 6. m See recital 9 of Directive 2003/86/EC. m See Anide 4(2) and (3) of Directive 2003/86/EC.

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Art. 4 Chp. 8 since it requires them, in the cases determined by the Directive, to authorise family reunification of certain members of the sponsor's family, without being left a margin of appreciation.' 215

1. Spouse (Article 4(l)(a)) The sponsor's spouse - irrespective of gender - is entitled to family reunification. The 4 provision presupposes an existing marriage. 216 The recognition of a marriage which has been concluded abroad is regulated in Article 5 of the Directive. Unmarried or registered partners may not base their application on Article 4(1) first subparagraph. Their admission is subject to the Member States' discretion under the conditions laid down in Article 4(3). Article 4(4) and (5) contain derogation clauses concerning family reunification of spouses (see below Article 4 MN 40 et seq.). The term 'spouse' may equally refer to relationships of religious or informal marriage. 5 Under the ECHR, family life principally refers to married and un-married stable partnerships alike, thus including religious marriages. 217 Against the background of recital 2 of the Directive, which stipulates that it respects Article 8 ECHR, this broad interpretation of family may equally inform the interpretation of the scope of the term 'spouse'. Accordingly, the Directive's personal scope should not be limited to formal marriage.

2. Minor unmarried children (Article (4)(l)(b)-(d) and the second subparagraph) The first subparagraph of Article 4(I)(b)-(d) grant minor children a right to family 6 reunification in case they fulfil the requirements stipulated by the Directive. Children must be minor and unmarried to be eligible (second subparagraph of Article 4(1)). Adolt unmarried children may be granted access only at the discretion of the Member State according to Article 4(2)(b) of the Directive. Married children - whether minor or adult - are not eligible for family reunification under the Directive at all. This follows from the rationale that family reunification of children shall ensure that children are taken care of by the person they depend on. The element of dependency is reflected in several provisions of the Directive, e.g. Article 4(1)(c) and (d). A married child - having a spouse - is thus, by definition, not regarded as being dependent on the parents' care. Children are minor if they are below the age of majority laid down by national law in 7 the Member State (second subparagraph of Article 4(1)). The provision refers to the legal age of majority stipulated by the civil law of the Member States, this being 18 in all Member States. 218 The second subparagraph of Article 4(1)) prevents Member States from applying a different age of majority to cases of family reunification and migration Jaw in general. According to the Commission, the provision aims at avoiding differences 215 EO, Parliament v. Council, C-540/03, EU:C:2006:429, para 60; equally, ECJ, 0 and Othm, C-256/11 and C-357/11, EU:C:2012:776, para 70; ECJ, E, C-635/17, EU:C:2019:192, para 46. 216 For the question whether family formation is included in the scope of application of the Directive, see above Article 2 MN 17 et seq. 217 Stalford, 'Concepts of Family Under EU Law - Lessons from the ECHR', International Journal of Law, Policy and the Family, 16 (2002), p. 410-434, and seminally, ECtHR, Judgment of28 May 1985, Nos 9214/80, 9473/81 and 9474/81, Abdulaziz, Caba/es and Ballcandali v. the United Kingdom, para 63; ECtHR, Judgment of 2 November 2009. No 3976/05, ~fe Yitit v. Turkey, paras 93 to 98, referring to the Turkish imam nikah. 211 See the Fundamental Rights Agency's survey 'Mapping minimum age requirements concerning the rights of the child in the EU, available at: https://fra.europa.eu/en/publication/2017/mapping-minimumage-requirements-conceming-rights-child-eu [last accessed 23 January 2021 ).

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between the regular age of majority in civil law and the age required for children in order to be eligible for family reunification. 219 Thus, it guarantees that Member States do not introduce an age of majority which is below the ordinary age of majority in order to restrict family reunification. 8 Member States are allowed to introduce an age limit below the age of majority under an optional clause: The first case is mentioned in the third subparagraph of Article 4(1) and concerns minor children above 12 years of age (see below Article 4 MN 20 et seq.), the other one is regulated in Article 4(6) and concerns minor children above 15 years of age (see below Article 4 MN 48 et seq.). Both options are subject to a standstill clause whereby Member States are prevented from introducing new restrictions as of the date of implementation, i.e. 3 October 2005. 9 In addition to the requirements of being minor and unmarried, Article 4(l)(b)-(d) list further requirements which differ, dependent upon whether the minor child is seeking family reunification to both parents - the sponsor and his/her spouse - (lit. b), the sponsor only (Iii. c). or the sponsor's spouse only (Iii. d). 10 Member States are obliged to authorise entry and residence of minor children. Against this background, the ECJ had to clarify at which point in time the condition of minority should be determined in the application procedure. 220 Whereas the Directive acknowledges that Member States may determine the age of majority in their national laws, it does not specify the point in time to be taken into account in order to assess that a person is indeed a minor for the purpose of the Directive. 221 As Advocate General Hogan explicated in that case, Member States administrations would not be compelled to treat applications of minors as a matter of priority and with the urgency necessary if, by delaying the decision, they could effectively bar an applicant from family reunification, if the person, in the meantime, attains majority. 222 Instead, the determination whether a person is a minor must refer to her or his age at the time the application for family reunification is lodged with the competent authorities. m The date of submission is the point of reference for determining whether the applicant constitutes a 'minor'. The Court added that the same conclusions apply to a situation where the applicant attains majority in the course of court proceedings for the purpose of judicial review. 224 11

a) Minor children of the sponsor and his/her spouse (lit. b). Minor children of the sponsor and his or her spouse are eligible for family reunification according to Article 4(l)(b). Article 4(l)(b) - unlike (c) (family reunification to the sponsor) and (d) (family reunification to the sponsor's spouse) - does not explicitly require the sponsor and/or his/her spouse to have custody or the child to be dependent. However, since the requirement of having custody shall ensure that a person's right to custody is not defeated by way of family reunification, one may conclude that in the case of Article 4 (l)(b) the sponsor or the spouse or both must have custody. Unlike Article 4(l)(c) and (d), this provision does not contain an element of dependency. It reflects the ECtHR's jurisprudence on Article 8 ECHR (see above, Article I MN 18 et seq.), according to which the natural family bonds between minor children and their parents will only be presumed to have ceased in the most exceptional cases. Therefore, in case of Article 4(l)(b) an element of dependency must not be demonstrated. Commission Proposal, COM(l999) 638, p. 15. ECJ, Belgian State, C-133/19, C-136/19 & C-137/19, ECI, Belgian State, C-133/19, C-136/19 & C-137/19, m ECJ. Belgian State, C-133/19, C-136/19 & C-137/19, 22 ' ECJ. Belgian State, C-133/19, C-136/19 & C-137/19, 22◄ ECJ, Belgian State, C-133/19, C-136/19 & C-137/19,

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Adopted children are eligible for family reunification in three different cases under 12 Article 4(l)(b): The adoption must have been made pursuant to (I) either a decision of the competent authority in the Member State concerned or (2) a decision which is automatically enforceable due to international obligations of that Member State or (3) a decision recognised in accordance with international obligations. Thus, in the first case, Member States have a margin of appreciation whether to recognise a decision of adoption. Member States are not obliged to recognise a decision issued by the country of origin and not falling under category two or three. However, due consideration must be given to the provision of Article 4(l)(b). Thus, as it explicitly aims at including adopted children, a national decision on recognition of adoption must not be arbitrary. International obligations on recognition of an adoption may stem from Article 21 of 13 the UN Convention on the Rights of the Child225 (CRC). The Convention is binding on all Member States. 226 Article 21 CRC specifies that the states parties must ensure that the best interest of the child be the paramount consideration, the adoption must be exclusively authorised by the competent authorities (Article 2l(a) CRC) and intercountry adoption is permissible only where a child cannot be cared for in a suitable manner in the child's country of origin (Article 2l(c) CRC). Article 21 CRC is reinforced by the Hague Convention of 29 May 1993 on Protection of Children and Cooperation in Respect of lntercountry Adoption 227 which operates through a system of national central authorities in the countries of origin and of destination. According to Article 23( 1) of the Hague Convention, an adoption certified by the competent authority of the state of the adoption and made in accordance with the Convention shall be recognised in the other contracting states. b) Minor children of the sponsor (lit. c). In case the minor child seeking reunifica- 14 tion is that of the sponsor only, the sponsor must have custody over the child, and it must be dependent on him or her (first sentence of Article 4(l)(c)). Both terms are not defined in the Directive and require further interpretation. In the EU Member States, various concepts of custody prevail. 228 Since the Directive does not refer to national law, the concept has its own independent meaning in EU law. A comparison of the first and second sentence of Article (4)(l)(c) ('custody is shared') shows that in the case of the first sentence the sponsor must have sole custody over the child. In that case, the European legislator appears to be of the opinion that the best interest of the child is sufficiently safeguarded. In order to interpret the term, one may refer to the definition of 'rights of custody' given in Article 2 no 9 of Regulation (EC) No 2201/2003. 229 According to that provision, rights of custody shall include rights and duties relating to the care of the person of a child, and in particular the right to determine the child's m UN General Assembly, Convention on the Rights of the Child, 20 November 1989, United Nations, Treaty Series, Vol. 1577, p. 3, available at: http://www.refworld.org/docid/3ae6b38IO.html !last accessed 23 January 2021 ]. 226 See http://indicators.ohchr.org/ [last accessed 23 January 2021 ]. m Full text in English available at: http://www.hcch.net/index_en.php?act=conventions.text&cid=69 Ilast accessed 23 January 2021]. 128 Overview on the concepts of parental responsibility in the EU Member States of the European Commission, European Judicial Network in civil and commercial matters, available at http://ec.europa. eu/civiljustice/parental_resp/parental_rcsp__gen_en.htm [last accessed 23 January 2021]. 129 Council Regulation (EC) No 2201/2003 of 27 :-Jovember 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000, (OJ 2003 L 338/1) as amended by Council Regulation (EC) No 2116/2004 of December 2004 (OJ 2004 L 367/1); for this conclusion, sec Commission Communication, COM(2014) 210 final, p. 5.

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place of residence. 210 Thus, a person does not have sole custody where another person has substantial rights or obligations for co-decision relating to the care of the child, for example in relation to issues of the place of residence, school or education or health care of the child.m This also follows from the definition of 'shared custody' as custody that is to be exercised jointly when, pursuant to a judgment or by operation of law, one holder of parental responsibility cannot decide on the child's place of residence without the consent of another holder of parental responsibility. 232 15 The term 'dependent' has its own autonomous meaning in EU law.m In TB, the Court explored the meaning of that term, drawing notable inspiration from its case-law regarding free movement law of EU citizens and their family members. Dependency accordingly results from a factual situation in which that material support for the family member is provided by the holder of the right of residence. Zl4 The Court added that, in order to establish such a dependence, the Member State must assess the financial and social conditions of the family member that must put her or him in a position where (s) he cannot support herself or himself. The dependent person must be in need for material support in the state of origin or at her current place of stay when (s)he applies for family reunification. in The specific situation of dependent family members of refugees was equally addressed in this regard (see Articles 9-12 MN 10). 236 16 The second sentence of Article 4( l)(c) contains an optional provision in case of shared custody, which is custody that is to be exercised jointly when, pursuant to a judgment or by operation of law, one holder of parental responsibility cannot decide on the child's place of residence without the consent of another holder of parental responsibility. 237 In this case, Member States may grant entry and residence only if the other person sharing custody has given his or her prior consent. In such a situation, a child has generally no right to family reunification. Granting of family reunification is in the discretion of the Member States. 238 17

c) Minor children of the sponsor's spouae (liL d). Article 4( 1)(d) entitles the minor children of the spoDSOr's spouae to family reunification. The conditions that must be fulfilled are identical with those listed in Article 4(l)(c) for family reunification to the sponsor: the spouse must have custody and the child must be dependent on him or her (first sentence), and as an option, Member States may in the case of shared custody authorize reunification where the other party sharing custody has given his or her prior consent (second sentence).

Sec also the definition in Commission Communication, COM(2014) 210 final, p. 5. m As established by the German Bundesverwaltungsgericht (Federal Administrative Coun), Judgment of7 March 2009, case No 1 C 17/08, Neue Zeitschrift fur Verwaltungsrecht (2010), p. 262,263. m Anicle 2 no. 9 and l l(b) of Council Regulation (EC) No 2201/2003 of 27 :--Jovember 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) :--Jo 1347/2000 (OJ 2003 L 338/1) as amended by Council Regulation (EC) No 2116/2004 of December 2004, (OJ 2004 L 367/1). m ECJ, TB, C-519/18, EU:C:2019:1070, para 44. HI ECJ, TB. C-519/18, EU:C:2019:1070, para 47. m ECJ, TB, C-519/18, EU:C:2019:1070, para 48. ll6 ECJ, TB, C-519/18, EU:C:2019:1070, paras 50 et seq. m Article 2 No 9 and l l(b) of Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000 (OJ 2003 L 338/1) as amended by Council Regulation (EC) No 2116/2004 of December 2004, (OJ 2004 L 367/1). m German Bundesverwaltungsgericht (Federal Administrative Coun), Judgment of7 March 2009, cue no I C 17/08, Neur Zeitschrift fur Verwaltungsrecht, p. 262, 263. llO

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3. Condition for integration for minor children (third subparagraph of Article (4)(1))

The third subparagraph of Article 4( l) contains a derogation clause which was inserted by the third proposal COM(2002) 225 239 and was one of the key questions of the negotiations on the Directive. The provision was inserted to meet German requests and reflects a provision in German immigration law at the time which set the age limit, however, at 16. 240 According to the third subparagraph of Article 4( l), Member States may require a minor child over the age of 12 years and arriving independently from the rest of his/her family to meet a condition for integration before the child is authorized entry and residence. The provision may not be applied to children of refugees (Article 10(1)). The provision is subject to a standstill clause which stipulates that the integration condition must be provided for by national law or regulation at the date of implementation of the Directive, which was 3 October 2005 according to Article 20(1) of the Directive. Therefore, the standstill clause restrains Member States from making use of this restriction by introducing a condition for integration dependent on a certain age limit after 3 October 2005. Integration conditions or the change of age limits for existing integration conditions that are introduced after this date constitute a breach of the Directive. As a consequence of the standstill clause, Germany is the only Member State which was able to make use of the option by keeping its pre-existing legislation which set an age limit at 16 years. 241 Concerning children below 12 years of age, Member States were not and are not allowed to introduce any condition for integration. Recital 12, which was inserted into the Preamble of the Directive in relation to the third subparagraph of Article 4( l ). acknowledges that this possible limitation is intended to reflect the children's capacity for integration at early ages and shall ensure that they acquire the necessary education and language skills in school. In other words, the provision seeks to motivate parents to unify with their children as early as possible in order to foster the children's integration into the receiving society, which is considered easier at early ages. As an argumentum e contrario, the reunification of children below 12 may not be restricted for purposes of integration. Such a distinction between children under and above the age of 12 may be drawn, as confirmed by the ECJ. 242 Member States may refuse entry and residence if the condition for integration is not met since the third subparagraph of Article 4( I) explicitly states that Member States may verify that the person meets this requirement 'before authorising entry and residence'. 243 However, it is unclear what may constitute a 'condition for integration' in the sense of the third subparagraph of Article 4(1 ). The term 'condition' implies that 2' 9 240

Commission Proposal, COM(2002) 225 final, p. 6. Section 20(2) No 2 Gesetz iiber die Einreise und den von Auslandcm im Bundesgebiet of 9 July 1990 (Auslandergesetz), BGBI. I 1990, p. 1354. 241 The German legislator had originally intended to set the age limit al 12 years, but the original Residence Act of 2002 which stipulated this (Section 32(2) German Aufenthaltsgesetz (Residence Act 2002) was declared unconstitutional for formal reasons by the German Constitutional Coun (German Federal Constitutional Coun (Bundesverfassungsgericht, BVerfG), judgment of 18 December 2002, case 2 BvF 1/02, NJW 2003, p. 339 et seqq). Since the political parties could not agree again on setting an age limit to 12 years, the new Residence Act 2005 therefore did not make full use of the option provided for by the third subparagraph of Article 4(1) but only repeated the previously existing age limit of 16 yean (Section 32(Z) German Aufenthaltsgesetz (Residence Act 2004). 242 ECJ, Parliament v. Councit C-S40/03, EU:C:2006:429, para 75. w Emphasis added.

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non-compliance categorically excludes family reunification. Thus, the condition for integration is a pre-condition which must be met before entry and residence is authorised.™ Furthermore, the term 'condition' may be interpreted to allow Member States stricter requirements than the requirement to 'comply with integration measures' mentioned in the second subparagraph of Article 7(2), based on which Member States may require family members to comply with measures demonstrating the ability and their willingness to integrate prior to or after arrival. 245 22 The German legal framework that compelled the incorporation of Article 4(1), third subparagraph in the first place requires the minor to demonstrate language skills before entry. Since Article 4(1) entails, in principle, a right to family reunification for minor children, it is questionable which levd of language skills may be required in this regard. The German Federal Ministry of the Interior consider language skills corresponding to level Cl of the Common European Framework of Reference for Languages (CEFR) as sufficient. 246 Proof shall be furnished by means of a certificate of a suitable foreign or national entity. 247 Thus, a condition of integration may take the form of a language test requiring language skills at level Cl CEFR or an equivalent integration test. The compatibility of this relatively high threshold with the Directive may be called into question. With a view to civic integration tests on the language and society, the Court has emphasised that such tests must be assessed in the light of the proportionality principle. 248 In analogy, this requirement should equally apply in respect to Article 4(1), third subparagraph. Accordingly, German authorities should adjust the level of the language test to 'a basic level', and, in any case, ensure that individual circumstances may be taken into account. 249 23 The condition may only be required where the child 'arrives independently from the rest of his/her family' (third subparagraph of Article 4( l)). This requirement was inserted on the initiative of France. 250 It is questionable whether 'independent arrival' may be interpreted as merely relating to the factual arrival of a child separate from the rest of its family, or, as a situation in which a child is going to live separately from his/ her family in the host country. 24 The ECJ ruled that the third subparagraph of Article 4( I) is in compliance with Article 8 ECHR. 251 Its reasoning regarding the standstill clause highlighted that Member States cannot employ an unspecified concept of integration, but must apply the condition for integration provided for by their legislation existing on the date of implementation of the Directive. Moreover, according to the Court, this provision does not permit or encourage any mode of implementation that would be contrary to the right to respect for family life. 252 On that note, however, the Court reiterated that Member States are, in exercising the margin of appreciation afforded to them by virtue of Article 8 ECHR, to take due account of the interests and factors mentioned in Articles 5(5) and Article 17 of the Directive, the principles of Community law and the case law of the ECtHR on Article 8 ECHR. 253 By upholding the legality of the m Commission Communication, COM(2014) 210 final, p. 15. Ibid. No 32.2.1. and 32.2.2. of the General Instructions to the Residence Act. "' No 32.2.2. of the General Instructions to the Residence Act. 141 ECJ, K., C-484/17, EU:C:2018:878, para 21. 249 ECJ, K., C-484/17, EU:C:2018:878, para 22. 2.10 See Council doc. 6585/03 of 25 February 2003, p. 4: 'D maintained a scrutiny reservation concerning the words "and arrives independently from the rest of his/he!' family", which have been added following a suggestion from F.' 251 ECJ, Parliament v. Council, C-540/03, EU:C:2006:429. m ECJ, Parliament v. Council, C-540/03, EU:C:2006:429, paras 60, 70 et seq. m Boeles/den Heijer et al, European Migration Law, p. 137. 245

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Family Reunification Directive, in this vein, the Court effectively passed the buck of safeguarding fundamental rights to the implementation stage at national level.2 54

III. Optional admission of first-degree relatives and adult children (Article 4(2)) Article 4(2) contains an option for Member States to authorise the entry and 2S residence of specific family members who do not qualify for reunification under Article 4(1). The admission must be arranged for 'by law or regulation.' This factors out simple practices of authorities, administrative guidelines or instructions. In contrast, reference to law or regulation principally tasks the national legislature or, as the case may be, government. Article 4(2) in the English version stipulates that entry and residence may be granted 26 'pursuant to this Directive and subject to compliance with the conditions laid down in Chapter IV'. 255 The fact that Article 4(2) explicitly mentions 'Chapter IV' begs the question whether compliance with the requirements mentioned in Chapter IV is sufficient or whether other conditions of the Directive, such as those regulated in Chapters 1-111 concerning the scope of application and the procedure, must be fulfilled as well. The German version of the Directive refers only to Chapter IV omitting the reservation 'pursuant to the directive'. However, no conclusion can be drawn from this wording, since the French, Italian and Spanish versions correspond to the English version. 256 This suggests that the provision must be interpreted as meaning that the requirements mentioned in Chapter IV must be fulfilled together with other conditions of the Directive. Family members whose family reunification may be authorized under Article 4(2) are therefore not exempt from the general conditions of the Directive. 257 The Commission draws the same conclusion, noting that, where a Member State has opted to authorise family reunification of any of the family members listed in Article 4(2), the Directive is fully applicable. 2511 Under Article 4(2), two groups of relatives may be granted entry and residence: fint 27 degree relatives in the direct ascending line (Article 4(2)(a)) and adult unmarried children (Article 4(2)(b)). Article 4(2) stipulates that family members may be either relatives of the sponsor or relatives of his or her spouse. Thus, they must not necessarily be family members of both or of the sponsor which may be relevant in case of Article 4(2)(b). First degree relatives in the direct ascending line (Article 4(2)(a)) are father and 28 mother but neither grandparents nor uncles and aunts. 259 Reunification of these family members is further restricted by two additional requirements listed in Article 4(2)(a). First, they must be dependent on the sponsor or his or her spouse; second, they must not enjoy proper family support in the country of origin. The term 'dependent' can be

2w Similarly, DlJbrowska-Klosinska, Right vs. Integration Conditions, p. 265. m Emphasis added.

256

French: 'au titTe de la presentt directive, sous resen>e du respect des conditions definies au chapitTe IV';

Italian: 'In virtu deUa presente direttiva e fatto salvo ii rispetto de/le condizioni stabilite al capo IV ... '; Spanish: •... de conformidad con la presente Directiva y siempre que se cumplan las condiciones establecidas

en el capltulo IV ... '. m Ecker, Familienzusamrnenfuhrung, p. 77. Commission Communication, COM(2014) 210 final, p. 6. The same is said to apply to the optional provisions in Article 4(3). 150 Commission Proposal, COM(2002) 225 final, p. 6. 258

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interpreted in the same manner as in Article 4(l)(c) and (d) meaning legal and factual dependency (see above Article 4 MN 14). 29 The requirement of no 'proper family support' is fulfilled if no other family members in the country of origin are by law or fact supporting the person. lt should not be regarded as exclusively material and leaves a margin of discretion to Member States as to what level is considered proper support. 260 Since the purpose of the provision is to grant family reunification on humanitarian grounds for dependent family members, it may be questioned whether the exclusion of persons receiving 'proper support' requires that in fact no adequate support is granted even though there may be a legal obligation of support. 30 Adult children are those who have reached the age of majority stipulated by the national law of the Member States concerned (cf. second subparagraph of Article 4(1)). They must also be unmarried (Article 4(2)(b)). In addition, they need to be objectively unable to provide for their own needs on account of their state of health (Article 4(2)(b)). Thus, it is not sufficient that they are unable to provide for their own needs for other reasons, such as missing education or age. Despite a Greek request to that end, the 'state of health' was not qualified as serious during the negotiations on the Directive; accordingly, it is not necessary that the state of health leads to incapacity for work, as the Italian delegation had unsuccessfully suggested in the Council. 261 Even if a person is capable of working. (s)he may not be able to provide for his/her own needs. 'Objectively' means that a Member State may assess on the basis of an objective prognosis whether a person is unable to maintain him-/herself, the subjective perception of the person being irrelevant. Therefore, the situation in the country of origin, such as the existence of social services, must be taken into account when deciding whether the person is objectively unable to provide for his or her own needs.

IV. Optional admission of unmarried and registered partners (Article 4(3)) 31

The first sentence of Article 4(3) contains an optional provision which allows Member States' admission of unmarried partners and of registered partnen. The category of registered partners was inserted following a Swedish request, as registered partnerships are a category in their own right in Sweden, with specific characteristics. 262 Both must be third-country nationals and the admission must be provided for by law or regulation. Some Member States allow for non-married partners to be reunified, such as Ireland, the Netherland or Slovenia, whereas registered partnership is accepted to that end by others, including Belgium, Spain, Italy and Lithuania. No family reunification is granted to non-married partners inter alia in Germany or Poland. 263 32 An unmarried partner is eligible for family reunification if he or she 'is in a duly attested stable long-term relationship with the sponsor' (Article 4(3)). The element 'with the sponsor' suggests that the relationship must be exclusive. The elements of 'stability' and 'long-term' are not specified in the Directive. Both requirements aim at distinguishing family-like relationships from relationships of convenience. 'Stability' Commission Communication, COM(2014) 210 final, p. 7. Council doc. 6450/01 of 6 March 2001, p. 8, note I. 262 Council doc. 11330/01 of 2 Augwt 2001, p. 2. 261 This overview is derived from a 2017 study carried out by the European Migration Network. EMN Synthesis Report for the EMN Focussed Study 2016, Family Reunification of Third-Country Nationals in the EU plus Norway: National Practices, Migrapol EMN (Doc. 382), p. 21. 260 261

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means that the relationship must have lasted uninterruptedly for a certain period of time. 'Long-term' means that the relationship must be designed to be permanent. It is not necessary that the relationship has already lasted for a long time, if other reasons attest the prospective permanency of the relationship, such as a common child (cf. Article 5(2)). The Directive does not require previous or present cohabitation. This follows from the drafting history, since an earlier suggestion for this provision stipulated 'living in a durable relationship with the sponsor, duly proven in accordance with [then] Article 6(3)'. 264 The assessment of a relationship of unmarried partners is specified in the third subparagraph of Article 5(2) which provides that proof may be furnished by factors such as a common child, previous cohabitation, and other reliable means of proof. According to the first subparagraph of Article 5(3), it is sufficient that the stability and permanency of the relationship can be 'duly attested'. Full proof in a strict legal sense is not necessary. A corresponding suggestion was not inserted into the Directive. 265 The purpose of these requirements is to ensure that the relationship is not a relationship of convenience. In case of a registered partnership, the first subparagraph of Article 4(3) requires that the partnership is registered in accordance with Article 5(2). The reference does not have any specific meaning since Article 5(2) does not contain further specifications. The reference is the remainder of an earlier version of Article 4(3), which did not yet list registered partners as a separate category. 266 Like in the case of Article 4(2), the conditions laid down in the Directive, especially those in Chapter IV, must be fulfilled (see above, Article 4 MN 26). The considerations on polygamous marriages mentioned in Article 4( 4) also apply to the case of unmarried partners. Only one unmarried partner may be granted access under Article 4(3). Otherwise the effect of Article 4(4) would be hampered if a further - for example divorced - spouse could enter as an unmarried partner. Article 4(3) stipulates that Member States may also admit minor unmarried children of the unmarried or registered partner. Adult unmarried children may be granted entry and residence in case they are objectively unable to provide for their own needs on account of their state of health. This requirement is identical with the one mentioned under Article 4(2)(b) for adult unmarried children of the sponsor or his/her spouse (see above, Article MN 31). According to the second subparagraph of Article 4(3), Member States may treat registered partners equally as spouaea with respect to family reunification. The provision refers to recital 10 and permits Member States to treat registered partners like spouses concerning mobility rights under the Long-Tenn Residents Directive 2003/ 109/EC. 267 In contrast, unmarried partners living in a duly attested stable long-term relationship are not covered by the second subparagraph of Article 4(3).

33

34

35

36

37

V." Optional admission of persons not mentioned in Article 4 Article 4(2) and (3) provide an option for Member States to grant family reunifica- 38 tion to other family member than the nuclear family. Thus, Member States may be free 264

Council doc. 10922/01 of 20 July 2001. p. 3, emphasis added. Council doc. 5682/01 of 31 January 2001, p. 7, Article 5 No l(a): •... living in a duly proven durable relationship', emphasis added. 166 See Council doc. 10842/01 of 12 July 2001, p. 2. 167 Council doc. 14272/02 of 26 November 2002, p. 7; Walter, Familienzusammenfilhrung. p. 225, note 971. 165

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Art. 4

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to make use of the option. Since Article 4(2) and (3) stipulate certain requirements, it cannot be assumed that Member States enjoy unlimited freedom as to whom family reunification is granted. Third-country nationals, in order to be admitted under Article 4(2) or (3) for the purpose of family reunification, must fulfil the requirements under Article 4(2) and (3). This does not preclude Member States from granting other third-country nationals under national rules a residence permit for other reasons than family reunification. Such persons, however, are not entitled to rely upon the provisions of the Directive as family members in the sense of the Directive. 268 39 Article 10(2) allows Member States to authorize entry and residence of all family memben of refugees not mentioned in Article 4, provided they are dependent on the refugee (see below, Articles 9-12 MN 10).

VI. Polygamous marriages (Article 4(4)) In the event of a polygamous marriage. the first subparagraph of Article 4(4) excludes a further spouse from family reunification 'where the sponsor already has a spouse living with him in the territory of the Member State'. The provision was already contained in the first proposal 269 and is mandatory. 270 Member States are not allowed to grant family reunification to a further spouse in such an evenL The preparatory Council documents suggest that this provision is deliberately addressed to female spouses only, who may empirically form the large majority of cases in this regard. 271 As the wording of the provision indicates, 'where a sponsor already has a spouse living with him Iemphasis added)' Member States are barred from granting family reunification. 272 Accordingly, it may be concluded that the Directive prevents Member States from authorising family reunification of female spouses in polygamous marriages, without however ruling out the comparable albeit more rare case of polyandry. The provision is intended to reflect the consideration that polygamous marriages are generally not compatible with the fundamental principles of the Member States' legal orders. 273 As such, it is set in sharp relief that the provision does not preclude polygamous marriages of one female spouse with several male persons. 274 The prohibition applies irrespective of whether polygamous marriages are recognised as existing under civil law aspects by the national legal order of the country of origin or even under international private law of the Member State. 41 The wording requires that the spouse is 'living' in a marital relatiombip with the sponsor in a Member State. Therefore, the mere existence of a polygamous marriage does not exclude family reunion of a further spouse if another spouse lives separately from the sponsor in the country of origin or the country of residence. This indicates that it is not primarily the legal and ethical disapproval of polygamous marriages but the protection of

40

.!611 The question whether Article 17 comprises a right to entry and residence will be discussed below, see below Article 17, MN 4. lHl Commission Proposal, COM(1999) 638 final, Article 5(2). 210 Ecker, Familienzusammenfuhrung. p. 83. 271 Council doc. 6450/01 of 6 March 2001, p. 9, note. I. 272 In most language versions, the male version of the word 'spouse' is used, but may generically relate to male and female spouses alike, for instance the French version of'un conjoint', the Polish 'malionek', or the Dutch 'echtgmoot' and the German 'Ehegutte'. The Romanian language version, in contrast, refers explicitly to the female version of the term, namely, 'sope' which translates as wife. m Bodes/den Heijer et al., European Migration Law, p. 136. m For a more general critique of the appropriateness of EU law provisions on polygamous marriages, see Stybnarova, 'Teleology Behind the Prohibition of Recognition of Polygamous Marriages Under the EU Family Reunification Directive: A Critique of Rule Effectiveness', Journal of Muslim Minority Affairs 40 (2020), p. 104-116, 109.

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the rights of women and children living in a polygamous household. Recital 11 points to such rights stating that 'the right to family reunification should be exercised in proper compliance with the values and principles recognised by the Member States, in particular with respect to the rights of women and of children; such compliance justifies the possible taking of restrictive measures against applications for family reunification of polygamous households.' The fact that the sponsor is living in a Member State with another person who is not his spouse is irrelevant provided the spouse is intending to join the family. A right to family reunion requires an existing family relationship. Therefore, the mere formal status as a spouse is not sufficient to establish a right to residence unless the residence permit is for the purpose of family reunification. By analogy to Article 4(4), Member States may not grant family reunification to an 42 unmarried or registered partner where a spouse is already living in the Member State with the sponsor. Since the purpose of Article 4(4) is to protect fundamental rights of women and children living in polygamous households in the Member States (cf. recital 11), the prohibition of family reunification must equally apply if a 'quasipolygarnous household' would otherwise be established by unmarried or unregistered partners. Family reunification of an unmarried or registered partner therefore must be excluded where an unmarried or registered partner is already living in the Member State with the sponsor (see above, Article 4 MN 40). The children of a further spouse to whom the first subparagraph of Article 4(1) 43 applies are not excluded from family reunification. They may be granted family reunification on the basis of Article 4(1)(c). By admitting in a polygamous marriage one spouse and children for family reunification, Article 4(4) accepts to a certain extent the consequences of a lawfully concluded polygamous marriage. 275 This acceptance is based upon the assumption that an absolute prohibition of family reunification would have the effect of depriving the sponsor residing in a Member State of the possibility of leading a normal family life. 276 By way of derogation from Article 4(1)(c), according to the second subparagraph of 44 Article 4(4) Member States may limit the family reunification of minor children of a further spouse and the sponsor. However, the best interest of the child may require a Member State to authorize entry and residence of children of another spouse, although the Directive, unlike the first proposal, does no longer contain an explicit clause stating that 'the entry and residence of children of another spouse shall be authorised if the best interests of the child so require:in According to the Commission a child's interest was meant to prevail over other considerations, for instance where the biological mother had died. 278 Instead, Articles 5(5) and 17 of the Directive oblige the Member States to consider a child's best interest in the same way (see below, Article 5 MN 21). The best interest of the child will regularly require family reunification where the spouse is not able to care for the child or where the spouse has died. 279

VII. Minimum age for spouses (Article 4(5)) Article 4(5) stipulates that Member States may on an optional basis require one or 45 both spouses to have a minimum age which may not exceed 21 years. The provision m See Boeles/den Heijer et al., European Migration Law, p. 136. m, Commission Proposal, COM(l999) 638 final, p. 15, explanations on Article 4. Art. S(i) of Commission Proposal, COM(l999) 638 final. Commission Proposal, COM(l999) 638 final, p. 15, explanations on Article 4, emphasis added. m Dienelt, Auswirkungen auf das AufenthG, p. 70. 2"' 278

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Art. 4

introduced on a Dutch initiative.2ll0 Unlike other restrictive provisions281 , Article 4(5) is not subject to a standstill clause and a number of Member States have made use of this provision. 282 Both Austria and the Netherlands maintain a minimum age requirement for spouses of 21 years. 283 While Gennany and the UK require a spouse to be 18 years of age, Ireland and Portugal have no such requirement. 284 Denmark, which is not bound by the Directive, applies an age limit of 24. Article 4(5) authorises Member States to introduce a minimum age 'in order to ensure better integration and to prevent forced marriages'. 285 The Directive itself lacks a dear definition of the tenn 'integration'. However, Article 4(5) does not require that Member States must show a real prospect of integration improvement to make use of Article 4(5). By legislative definition, it is assumed that the introduction of a minimum age serves the purpose of integration as laid down in recitals 4 and I 5, preventing forced marriages. This assumption must be taken as granted until the Directive is amended on the basis of an evaluation report. 286 Whether a minimum age for spouses does in fact contribute to achieving the purpose of the Directive with respect to integration and prevention of forced marriages has always been a matter of controversy in Member States.287 46 It is questionable at what point in time the condition of a minimum age must be fulfilled. The ECJ ruled in Noorzia that a provision in Austrian law demanding the sponsor and his or her spouse to have attained the minimum age of 21 years by the date when the application is lodged does not violate Article 4(5). 288 It argued that, by not defining when the minimum age condition must be satisfied, the Directive leaves to the Member States a margin of discretion; subject to the requirement not to undermine the effectiveness of EU law. Accordingly, Member States may not use their discretion to impair the right to family reunification, render it excessively difficult or undennine the purpose of preventing forced marriages.289 However, the Commission argues that it is sufficient if this condition is fulfilled at the moment of family reunion and not when the application is submitted. 290 With a view to the pwpose of the provision, namely the prevention of forced marriages. both options appear to fall within the margin of discretion mentioned in Noorzia. 291 was

llll

Schaffrin, in Carlier/De Bruycker (eds), Immigration and Asylum Law of the EU, p. 90, 108.

21 1 See 212

the third subparagraph of Article 4(1) and Article 4(6) of the Directive.

See Labayle/Pascouau, Synthesis Report, p. 44.

m Strik and others, Family Reunification: a barrier or facilitator of integration? A comparative study (Wolf Legal Publishen, 2013), p. 8. 214 Ibid. 21 s Emphasis added. 216 See Article 19 of the Directive. 217 See for instance Groenendijk. 'Rechtliche Konzepte der Integration im EG-Migrationsrecht', Zeitschrift fur Auslanderrecht und Auslanderpolitik (2004), p. 123-130; Groenendijk, A Right under Community Law, p. 220; I, Having regard to the opinion of the European Parliament< 2>, (II

Ill

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OJ C 240 E, 28.8.2001, p. 79. OJ C 284 E, 21.11.2002, p. 102.

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Having regard to the opinion of the European Economic and Social Committeelll, Having regard to the opinion of the Committee of the Regions14 l, Whereas:

...

[ ) HAS ADOPTED THIS DIRECTIVE:

CHAPTER I GENERAL PROVISIONS Article I Subject matter This Directive determines: (a) the terms for conferring and withdrawing long-term resident status granted by a Member State in relation to third country nationals legally residing in its territory, and the rights pertaining thereto; and (b) the terms of residence in Member States other than the one which conferred long-term status on them for third country nationals enjoying that status. Content DID,

I. II. III. IV. V.

General Remarks .................. -······-··················-············································· 1 Background........................................................ -............................................. 6 Drafting History and Implementation....................................................... 10 Legislative Amendments ............................................................................... 13a Purpose and Significance of the Long-Term Resident Status.............. 14

I. General Remarks Article l sets out the 'subject matter' of the Directive in a descriptive manner by 1 stating in abstract language that it lays down the terms for conferral and withdrawal of long-term resident status, the rights pertaining to those holding the status and the conditions for intra-European mobility. This descriptive designation of the subject matter must be distinguished from the 'objective' and 'purpose' identified by the ECJ as principally promoting the integration into host societies - a concept which remains surprisingly vague at closer inspection (see below MN 16-17). Directive 2003/109/EC was adopted on the basis of Article 63(3)(a) and (4) EC Treaty as 2 amended by the Treaty of Amsterdam, which was the predecessor to today's Article 79(2)(a) and (b) TFEU, 1 on the basis of which future amendments to the Directive will have to be adopted. In 2003, Article 63(3)(a) and (4) EC Treaty required the unanimous conaent of the Member States in the Council after the consultation of the European Parliament. 2 By contrast, future amendments will be subject to the ordinary legislative procedure in line 131 OJ

C 36, 8.2.2002, p. 59. OJ C 19, 22.1.2002, p. 18. 1 Sec Thym, Legal Framework for EU Immigration Policy, MN 11-12, 17-18. 2 Sec Article 67(1) read in conjunction with Article 63 EC Treaty as amended by the Treaty of Amsterdam of 2 October 1997 (OJ 1997 C 340/173) given that the transitional five-year period elapsed at the end of 2004, one year after the adoption of Directive 2003/ 109/EC. 14 '

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Art. 1

Long- Term Residents Directive 2003/ l 09/EC

with Article 79(2) TFEU that provides for a qualified majority vote in the Council and the consent of the European Parliament.3 The original version was adopted by the Council on 25 November 20034 and published in the Official Journal in early 2004. 3 In accordance with the design of their opt-outs enshrined in Protocols attached to the Treaties, the UK and Ireland decided not to take part in the adoption of the Long-Term Residents Directive. 5 Denmark was prohibited from joining,6 since the Directive does not constitute a measure building upon the Schengen acquis. Rules governing the optout arrangements are described in the introduction. 7 4 The structure of the Directive follows the standard outline of EU legislation: Recitals in the Preamble recall the motivation of the legislature and can be useful tools for interpretation.8 Chapter I sets out general provisions, including key definitions (Article 2). Chapter II contains the rules relating to the acquisition of long-term resident status (Articles 4-7), potential withdrawal (Articles 9-10), equal treatment during periods of legal residence (Article 11) and protection against expulsion (Article 12). Chapter III lays down a conditional right for long-term residents to reside and work in other EU Member States subject to the conditions and caveats described in the Directive (Articles 14-23). Cliapter IV lists the final provisions, such as the duration of the transposition period until 23 January 2006. S Empirical data collected by Eurostat shows that the practical relevance of the Directive varies greatly between Member States. At the end of 2018, there were more than 10 million long-term residents, of which less than 40 % held a status under Directive 2003/109/EC living in the Member States.9 That amounted to roughly 30 % of all third country nationals residing legally in the EU with a temporary or permanent residence status. 10 Noticeable variations in the number of long-term residents among the Member States (1367 in Bulgaria, not more than 12 thousand in Germany, in contrast to 2 million in Italy) can be explained by a variety of reasons: while some Member States generally have less third country nationals living there, others provide for naturalisation under generous conditions as a result of which third country nationals stop being foreigners. 11 Most importantly, however, many Member States, such as Germany, continue to hand out a domestic long-term resident status under national laws unless foreigners explicitly ask for the EU status - a practice that can potentially fall foul of the obligation not to undermine the effet utile of the Directive (see below Article 13 MN 4). The Commission Implementing Report of2019 highlighted that only four Member States did not provide for 'competing' national long-term residence schemes beyond the scope of the Long-Term Residents Directive. 12 Cf. Article 15(3) TEU read in conjunction with Articles 79(2) and 294 TFEU. See Council doc. 14492/03 of 25 November 2003. ~ See Recital 25. • See Recital 26. 7 See Thym, Constitutional Framework, M:-1 38-45. • On interpretative principles, see Thym, Constitutional Framework, MN 10-20. •Cf.the dataset 'migr_reslong' for the different reasons stated therein, available online at http://appsso. eurostat.ec.europa.eu/nui/show.do?dataset=migr_reslong&lang=en [last accessed on 1 June 2021 ). 1° Cf. the dataset 'migr_resshare', available online al http://appsso.eurostat.ec.europa.eu/nui/show.do? dataset=migr_resshare&lang=en [last accessed on 1 June 2021]. 11 I.e. they grant nationality irutead of long-term resident status; the decline of the overall number of third-country nationals in some Member States according to the statistics (ibid.) can be explained, among others, by the progressive naturalisation of those who had held the status of long-term resident earlier or, especially in the case of Italy, by onward movement to other Member States; see Della Torre/de wge, The "Importance of Staying Put". Third Country Nationals' Limited Intra-EU Mobility Rights', Journal of Ethnic and Migration Studies 44 (2018), p. 1409, 1416-1418. "See Commission Implementation Report, COM(2019) 161, p. I. J

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In autumn 2020, the Commission put forward the objective to propose a revision of Sa the Long-Tenn Residents Directive during the fourth quarter of 2021 in order to create a genuine 'long-term EU residence status', which strengthens the rights of longterm residents to move and work in other Member States. 13 These proposed changes could not be considered for the third edition of this Commentary.

II.Background Prior to the entry into force of the Treaty of Amsterdam, the EU could not adopt 6 binding secondary legislation on migratory matters. Instead, the so-called 'third pillar' allowed for non-binding resolutions and international law-style conventions.1 4 On this basis, the Council agreed upon a Resolution of 4 March 1996 on the status of third country nationals residing on a long-term basis, 15 which established a nonbinding framework for domestic rules without detailed prescriptions. 16 Moreover, the Commission proposed a Convention on the Admission of Third Country Nationals with some rules on long-term residents; the Convention never reached the stage of ratification, after the Council abandoned the discussion due to the imminent entry into force of the Treaty of Amsterdam. 17 Although these informal arrangements never gained practical relevance, they served as a starting point for negotiations once the Treaty of Amsterdam had established a more robust supranational Treaty base. In a parallel development, the Council of Europe adopted a recommendation that 7 member countries should guarantee the security of residence of long-term migrants, 18 in light of a growing political consensus and domestic legal practices that the former 'guest workers' and their children, who had often been born in host states or moved there in early childhood, should be guaranteed a secure residence status with enhanced equal treabnent In doing so, the Council of Europe built upon earlier conventions on the protection of foreigners, such as the European Convention on Establishment of 1955. 19 Given that the latter Convention only applied to nationals of state parties and that most of them had acceded to the EU in the meantime, it had lost most of its relevance by the 1990s with the prospect of free movement within the single market (see below Article 3 MN 25). With the adoption of Directive 2003/109/ EC. the EU overtook the Council of Europe as the central forum for immigration law harmonisation, although the Council of Europe retains some significance, not least because the European Convention on Human Rights can influence the interpretation of EU legislation. 20 " See the Communication on a New Pact on Migration and Asylum, COM(2020) 609, p. 26; and, for the timing, the roadmap in COM(2020) 609. " See Thfm, Constitutional Framework, MN 2-3. 15 OJ 1996 80/2. 16 By way of example, the resolution foresaw a general qualification period of up to IO years of legal residence; for further comments, see Peers/Guild/Acosta Arcarazo/Groenendijk/Moreno-Lax, EU Immigration and Asylum Law, Vol. 2, p. 289-293; and Boelaen-Suominen, Directive 2003/109/EC, p. 117-120. i; Cf. Ankle 32-35 Proposal for a Council Act Establishing the Convention on Rules for the Admission of Third-Country Nationals to the Member States (OJ 1997 C 337/9). 1~ Cf. Council of Europe, Recommendation of the Committee of Ministers to Member States concerning the Security of Residence of Long-Term Migrants, Rec(2000)15 of 13 September 2000; for funher comments, see Groenendijk, Denizenship and Integration, p. 431-432. 19 See Thym, Legal Framework for EU Immigration Policy, MN 59; and, for funher comments, Groenendijk, 'Long-Tenn Immigrants and the Council of Europe', EJML I (1999), p. 275, 276-279. 21> See Thym, Legal Framework for EU Immigration Policy, MN 50-60.

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Art. I

Long-Tenn Residents Directive 20031109/EC

Shortly after the entry into force of the Treaty of Amsterdam, the European Council at its meeting in Tampere in October 1999 agreed on political guidance for the

realisation of the incipient area of freedom, security and justice. 21 The initial Tampere Programme for the 1999-2004 period was full of youthful enthusiasm (in contrast to more restrictive later guidelines) and embraced a mixed approach combining the 'need for more efficient management of migration flows' and the 'control of external borders to stop illegal immigration' with 'fair treatment of third country nationals who reside legally' and a 'more vigorous integration policy.' 22 More specifically with regard to longterm residents, the European Council stated that their status 'should be approximated to that of Union citizens A person, who has resided legally in a Member State for a period of time to be determined and who bolds a long-term n:sidmce permit, should be gnnted in that Member State a set of uniform rights which are u near u possible to those enjoyed by EU citizens; e.g. the right to reside, receive education, and work as an employee or self-employed person, as well as the principle of non-discrimination vis-avis the citizens of the State of residence.' 23 9 It is stated in the introduction that the significance of this declaration of intent should not be overstated for a number of reasons, 24 including the absence of direct legal effects flowing from the political commitment of the heads of state or government which gave way to a more nuanced assessment during the legislative procedure (see below MN 11). Moreover, similar formulations were not elevated at Treaty level neither in today's Article 79 TFEU nor in the Charter of Fundamental Rights which, generally, takes pride in presenting itself as an avant-garde human rights catalogue. 25 It is discussed below in how far the reminder of the Tampere conclusions in Recital 2 of Directive 2003/109/EC can have an impact on the interpretation of the Directive (see below MN 15-17).

III. Drafting History and Implementation 10

The Commission Proposal of March 2001 followed closely the original political direction of the European Council in Tampere to approximate the status of long-term residents to that of Union citizens (see above MN 8-9).26 It had been influenced, among other things, by a comparative study on corresponding rules in different Member States undertaken by the University of Nijmegen.27 The European Parliament,28 the Economic and Social Committee29 and the Commission of the Regions 30 were consulted 21

Cf. Thym, Constitutional Framework, MN 8. European Council, Presidency Conclusions of the Meeting on 15/16 October 1999 in Tampere, paras 3, 18, 22. 23 Ibid., para 21. 24 See Thym, Legal Framework for EU Immigration Policy, MN 36. " On the significance of the migration-related articles of the Chaner, see Thym. ibid., MN 33-35. 26 See COM(2001) 127, Explanatory Repon, :-lo 1.5: 'With this proposal, the Commission is giving practical expression to its intention and to its commitment to a matter that is crucial in terms of securing the genuine integration of third-country nationals settled on a long-term basis in the territory of the Membn- States.' 27 See Groenendijk/Guild, Converging Criteria. 28 See the amendments proposed by the plenary of the European Parliament, EP doc. P5_TA(2002) 0030 of 5 February 2002 (OJ 2002 C 284 E/94); for background information, see the Repon of the Committee on Citizens' Freedoms and Rights. Justice and Home Affairs. EP doc. A5-0436/2001 of 30 November 200 I. 2'l See Economic and Social Committee, Opinion 1321/2001 of 17 October 2001 (OJ 2000 C 36/59). lO See Committee of the Regions. Opinion 213/2001 of 27 September 2001 (OJ 2002 C 19/18). 21

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and sought some amendments that the Council did not follow, in accordance with the institutional regime applicable at the time (see above MN 2). The working group of the Council started considering the Commission Proposal in 11 July 2001. 31 During these negotiations, differences between the Member States came to the fore on issues such as personal scope, conditions for obtaining the status, degree of equal treatment and free movement between Member States, thereby curtailing the original political consensus within the European Council. After a number of deadlocks and delays, the European Council in Seville in June 2002 'urge[dl the Council to adopt' 32 the Directive by June 2003. Notwithstanding this political pressure, a considerable amount of further negotiation and compromise was required before political agreement on the unanimous adoption of the Directive was reached by the Justice and Home Affairs Council meeting on 5/6 June 2003. 33 Ironically, it was the Danish Presidency of the Council which, during the second half of 2002, played a crucial role in steering Member States towards agreement despite the Danish opt-out from the instrument (see above MN 3). The final version of Directive 2003/109/EC was officially adopted on 25 November 2003 after the usual legal-linguistic revision. 34 Specific issues relating to the drafting history which may have an impact on interpretation are discussed in the context of the article in question. 35 In accordance with Article 26, the Directive had to be tnnsposed into domestic laws 12 by 23 January 2006. As usual, several Member States failed to comply with the deadline and the Commission initiated infringement proceedings, some of which were repealed after the adoption of domestic laws. 36 In 2007, the ECJ established that Spain, Luxembourg and Portugal had failed to implement the Long-Term Residents Directive correctly.37 In the first implementing report of 2011, the Commission noted that all Member States had established a legal framework at national level that was sufficient in principle, although there were - like in the case of most directives - several instances in which it remained doubtful whether all Member States were in full compliance. 38 The second report of 2018 found further improvement. 39 During the original negotiations, it was decided to exclude beneficiaries of international 13 protection (i.e. refugees and those with subsidiary protection) from the scope of the original Directive 2003/109/EC in order not to complicate an early agreement on the Long-Term Residents Directive at a time when the asylum directives were stiU under discussion. 40 This gap was meant to be closed later on the basis of a Commission Proposal of June 2007 whose adoption failed in the Council due to Maltese resistance. 41 Directive "The relevant Council documents can be located in the Register of Council Documents (available online at https://www.consilium.europa.eu/en/docwnents-publications/public-register/public-registersearch/; last accessed 1 June 2021) by enterin9 the interinstitutional file '2001/0074(CNS)'. Jl Seville European Council of 21/22 June 2002, Presidency Conclusions, para 37. 33 See Council doc. 10214/03 of 10 June 2003. l4 Note that adoption after May 2004 would have required the unanimous consent of seven more Member States after enlargement; see Groenendijk, Deniz.enship and Integration, p. 433. 3~ Detailed information on the course nesotiations can be found in Handoll, lbe Long-Term Residents Directive, p. 158-159; Hauschild, Einwanderunssrecht, p. 350-351; and Acosta, The Long-Term Residence Status, p. 84-87. 36 This was the case, more specifically, with infringement proceedings against Germany (C-218/07), Italy (C-104/07), France (C-37/07) and Hungary (C-30/07). 37 Cf. EC), Commi.ssion v. Spain, C-59/07, EU:C:2007:683; ECJ, Commi.ssion v. Luxembourg, C-34/07, EU:C:2007:738; and ECJ, Commission v. Portugal, C-5/07, EU:C:2007:559. 31 See the Commission's 2011 Repon, COM(201 l) 585. 39 See Commission Implementation Repon, COM(2019) 161, p. 9-10. 40 See Guild, European Identity, p. 224. •• See the Commission Proposal, COM(2007) 298; and Peers, 'Legislative Update EU lmmisration and Asylum Law 2010', EJML 13 (201 I), p. 201. 206-212.

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2011/51/EU amending Council Directive 2003/109/EC to Extend its Scope to Beneficiaries of International Protection42 was finally adopted on ll May 20ll after the Treaty of Lisbon had brought the unanimity requirement in the Council to an end (see above MN 2). Beneficiaries of international protection were guaranteed equal rights under the Directive together with specific rules concerning the calculation of legal residence periods reflecting the specificities of the asylum procedure in the revised Article 4 Directive 2003/109/EC. The amendments to Directive 2003/109/EC under Directive 2011/51/EU have been integrated into the text of the Directive in this commentary and will be commented upon below.

IV. Legislative Amendments 13a

The Commission plans to table a proposal for the revision of Directive 2003/109/ EC by the end of 2021, which would focus on creating a 'true' EU long-term residence status, in particular by strengthening the right to move and work in other Member States.0 At the time of writing. the proposal had not been presented yet. However, two smaller changes had been proposed or adopted aimed at strengthening the impact of long-term residence status in terms of intra-European mobility. Firstly, the outcome of the political agreement on the revision of the Blue Card Directive 2009/50/EC, which had not been adopted formally at the time of writing, indicated that highly skilled migrants may accumulate times of residence in several Member States (see Article 4 MN 14a). Secondly, the Commission wants to lower the waiting period for beneficiaries of international protection to three years to facilitate legal onward movement (see Article 4 MN 2a).

V. Purpose and Significance of the Long-Tenn Resident Status 14

The contents of Directive 2003/109/EC is often assessed in light of the political objective of the Tampere European Council to approximate the status of long-term residents to that of Union citizens (see above MN 12). Many commentators concluded, rightly, that the original objective had not been met,+i in particular in so far as equal treatment under Article 11 and free movement under Articles 14-23 were concerned 4 s Although it is legitimate to assess the Directive in the light of political objectives set beforehand, it should be noted that the criticism remains political in nature, since the political guidelines of the Tampere European Council were not legally binding. 46 Moreover, Union citizenship and the status of third country nationals are distinct constitutional categories: the 'fundamental status' the ECJ considers Union citizenship to be destined to be must be distinguished from rules governing the area of freedom, security and justice.47 Hence, EU institutions were not legally obliged to approximate the two statuses. The change of direction during negotiations in the Council, where o OJ 2011 L 32/1. " See COM(2020) 609 of 23 September 2020, p. 25 and the roadmap in the Annex. .. By way of example, see Boelaen-Suominen, Directive 2003/109/EC, p. 1011-1052; and Peers, Implementing Equality?, p. 437-440. 41 See Jesse, Civic Citizens, p. 302-304; Groencndijk, Denizenship and Integration, p. 439-400; and Bribosia, Politiques d'integration, p. 68. 46 See Thym, Constitutional Framework., M::--1 9. 47 For funhcr explanations, see Thym, Legal Framework for EU Immigration Policy, MN 28-36; and Thym, 'EU Migration Policy and its Constitutional Rationale', CML Rev. 50 (2013), p. 709, 718-725.

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Member States deviated from the more generous Commission Proposal (see above MN 10-11), remained the prerogative of the legislature. 48 It is sometimes said that the Long-Term Residents Directive should be interpreted IS in the light of the Tampere objective of approximation to Union citizenship, not least because Recital 2 reiterates the political conclusions of October 1999.49 However, closer inspection advises caution. 50 At a textual level, Recital 2 simply echoes in the past tense what had been 'stated' by the European Council at its special meeting in Tampere. To do so is undoubtedly correct as a factual statement and does not imply that the legislature necessarily maintained the same idea during the legislative procedure. The Council consciously decided not to follow the original Commission Proposal (see above MN 10-11 ), thereby demonstrating that an historic interpretation of Recital 2 in the light of the drafting history does not support, in line with the wording, an alignment with the Tampere conclusions. Along similar lines, the general scheme of the Directive points to a different reading, because Article I describes the subject matter in a decidedly general language highlighting the 'terms' (French: conditions; German: Bedingungen) of long-term resident status. As a result, the discrepancies between the European Council condusions in Tampere and Directive 2003/109/EC cannot be undone in light of Recital 2. In its early case law on the Directive, the European Court of Justice concluded under 16 reference to Recitals 4, 6 and 12 of Directive 2003/109/EC: 'the principal purpose [of the Directive] ... is the integration of third country nationals who are settled on a long-term basis in the Member States.'51 The additional reference, in a single judgment, that the Directive also seeks 'to approximate the legal status of third country nationals to that of Member States' nationals' 52 in line with Recital 2 was not taken up afterwards and cannot convince in the light of the doctrinal reasons described above (see MN 15). In another judgment, the ECJ identified the additional aim 'to contribute to the effective attainment of an internal market' 53, which seems to relate primarily, as a subsidiary objective, to residence in other Member States in accordance with Articles 14-23 LongTenn Residents Directive. 54 lt was described in the introduction that the somewhat simplistic identification of a 16a principal integration objective overlooks the divenity of political motivations during the legislative procedure, with regard to long-term residents in the same way as for family reunification and for many other pieces of secondary legislation. ss That becomes "' Arguably, the reorientation was the result of changing circumstances after the economy situation had deteriorated in some European countries in the early 2000s; see Hailbronner, 'Arbeitsmarktzugang und Anspruch auf soziale Leistungen im europai.schen Auslanderrecht', in: Dicke t'I al. (eds), Weltinnenrecht. Liber Amicontm Jost Delbruck (Duncker & Hurnblot, 2005), p. 315,319. •• See Peers/Guild/Acosta Arcarazo/Groenendijk/Moreno-Lax, EU Immigration and Asylum Law, Vol. 2, p. 296; Groenendijk, Denizenship and Integration, p. 430,434; and Peers, Implementing Equality?. p. 442-443, 50 Similarly, see Halleskov, The Long-Term Residents Directive, p. 188-189; Boeles/den Heijer/Lodder/ Wouters. European Migration Law, p. 177-178; and Handoll, Directive 2003/109/EC, MN 36. s, ECJ, Commission v. Netherlands, C-508/10, EU:C:2012:243, para 66; similarly, see ECJ, Kamberaj, C· 571/10, EU:C:2012:233, para 90; ECJ, Singh, C-502/10, EU:C:2012:3076, para 45; ECJ, P & S, C-579/13, EU:C:2015:369, para 46; and ECJ, Lopez Pastuzano, C-636/16, EU:C:2017:949, para 23. 12 ECJ, Singh, C-502/10, EU:C:2012:3076, para 45; it should be noted that the ECJ specified that the approximation to EU citizenship is to be achieved 'by granting the status of long-term resident', Le. rules and conditions set out in the Directive fulfil the promise of approximation and do not necessarily require, therefore, require generous interpretation in the light of the Tampere conclusions. SJ ECJ, Commission v. Netherlands, C-508/10, EU:C:2012:243, para 66. s. This orientation comes to the fore in the ECJ's explanation that orientation at the internal market concerns 'an area in which the free movement of persons [between the Member States I is ensured' (ibid.). ss See Thym, Constitutional Framework, MN 17.

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evident when we consider the wording of Article l, which describes the subject matter in a decidedly general language highlighting the 'terms' (French: conditions; German: Bedingunger,) of long-term resident status - thereby qualifying the primary orientation at the integration objective. 56 Similarly, the Preamble comprises notions on closer inspection: while Recitals 2 and 12 support an understanding based on equal rights and residence security, Recitals 4 and 6 emphasise the significance of social cohesion and connections with host society, although neither formulation presents a definite answer. 57 Tellingly, the ECJ recognised the aiterion of'stable and sufficient resources' to punue a different objective: 'to preserve the social assistance system of the Member State concemed' 58 (Article 5 para 2), thereby reiterating a teleological pantheon which also defines the case law on the Family Reunification Directive 2003/86/EC and the Citizenship Directive 2004/38/EC. 59 · 16b It can also be argued that the identification of a primary integration objective contradicts the structure of primary law, since Article 79(4) TFEU prohibits the Union legislature from harmonising domestic rules on migrant integration. 60 If we concluded that the main purpose and contents of Directive 2003/109/EC was integration, Article 79(2)(a) TFEU could not be used as a legal basis. 61 17 Even if we accept, in line with ECJ case law, that the 'integration' of long-term residents in host societies serves as the principal objective of Directive 2003/109/EC (see above MN 16-16a), the notion of integration needs to be explained. It is described in the introduction that the meaning of the concept of 'integration' remains ambiguous and that it is possible to distil at least three potentially opposing approaches underlying EU immigration laws whose interaction can be conceptualised as a conflict between a rights-focused standpoint emphasising residence security and equal treatment, a broader socio-cultural outlook highlighting social affiliation with the host society as well as outdated visions of ethno-cultural homogeneity. The first reading of integration concentrates on equal rights as an end in itself, while the second perspective focuses on social affiliation, for instance by means of knowledge of the local language. 62 While it is undoubtedly legitimate to defend a specific viewpoint in legal writing, it should be noted that the ECJ's recognition of a principal objective of 'integration' does not automatically side with one of the alternative viewpoints. 63 56 Similarly with regard to the Family Reunification Directive, see De Bruycker, 'Chronique de jurisprudence consacrre a l'espace de libene, de skurite et de justice', Cahiers de Droit Europet:!1 46 (2010), p. 137, 146. 57 Recital 2 refrains from embracing the Tampere objective (see above MN 15), Recital 4 remains unclear in what respect the Directive can promote economic and social cohesion, Recital 6 does not specify how someone 'has put down roots' in a country, Recital 12 concerns primarily equal treatment guarantees under Article 11; see also Hauschild, Einwanderungsrecht, p. 351; Hailbronner, Auslanderrecht, § 9a, M:-.1 2; and Handoll, The Long-Term Residents Directive, p. 147. "EC), X, C-302/18, EU:C:2019:830, para 35. w See ECJ, Khachab, C-558/14, EU:C:2016:285, para 39; and EC), Dano, C-333/13, EU:C:2014:2358, para 74. 60 See Thym, Legal Framework for EU Immigration Policy, MN 24-25. 61 See Wilderspin, 'Articles 79 TFEU', in: Kellerbauer/KlamenrTomkin (eds), The EU Treaties and the Charter of Fundamental Rights. A Commentary (OUP, 2019), para 34, who does not claim that the additional contents-rdated criterion similarly supporu the conclusion that Ankle 79(4) TFEU ei:cludes harmonisation. 62 See Thym, Legal Framework for the EU Immigration Policy, MN 43-47. 6 l That seems to be suggestion, however, by Peers/Guild/Acosta Arcarazo/Groenendijk/Moreno-Lax, EU Immigration and Asylum Law, Vol. 2, p. 297; Eichenhofer, Recht auf Daueraufenthalt, p. 3, 7; Acosta Arcarazo, The Long-Term Residence Status, p. 203-226; and ibid., Civic Citizenship Reintroduced?, p. 208-209.

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ECJ judgments fluctuate between different conceptions of integration depending on the outcome of the cue - mirroring a similar contradiction in the rulings on the Dublin Regulation.64 Thus, the ECJ arguably embraced socio-cultural affiliation in the above sense in the P & S ruling on language requirements and civic integration tests (see below Article 5 MN 18). By contrast, judges found that it is 'above all from the five-year duration of the legal and continuous residence that shows that the person concerned has put down roots in the country'65 in line with the equality-based reasoning explained above in judgments adopting a migrant-friendly outlook with regard to sufficient resources (see below Article 5 MN 7) and periods of prior residence (see below Article 4 MN 2). In one case, it even concluded that integration objectives supports social benefit payments to family members residing in Pakistan insofar as the sponsor's integration into Italian society was concemed.66 Unfortunately, judges do not openly reflect on this cleavage, which is rendered even more perplexing by prior judgments on Union citizenship, which had emphasised formal factors, such as the length of stay, are outweighed by qualitative considerations, such as a clear criminal record, because 'the integration objective . . . is based not only on territorial and time factors but also on qualitative elements.'67 Shortly after the conclusions of the European Council in Tampere (see above MN 8), 18 the Commission took up the idea of approximation to Union citizenship in a Communication on a Community Immigration Policy endorsing, among other things, 'a form of civic citizenship' of long-term residents, although the proposal remained decidedly abstract and did not contain much substance at closer inspection.68 This Commission statement reflected a trend among academic contributions re-conceptualising the notion of 'citizenship' for migration purposes at a time when the traditional dichotomy between nationals with equal treatment and foreigners with less protection was projected to disappear in the aftermath of the fall of the Berlin wall and the initial euphoria about globalisation. A novel form of stakeholder citizenship seemed to emerge when the formal link of state-based nationality is replaced by residence-based locality as the demarcation line between out- and insiders participating in the formation and evolution of toe.al communities.69 Against this background, academic observers portrayed both the adoption of the Long-Term Residents Directive 2003/109/EC70 and the emerging case law of the European Court of Human Rights71 as an expression of a general drive towards residence-based conceptions of citizenship. "' See Thym, Constitutional Framework. MN 17. 65 ECJ, Lopez Pastuzano, C-636/16, EU:C:2017:949, para 30; and ECJ, Tahir, C-469/13, EU: C:2014:2094, para 33. 66 See EC/, Jstituto Nazionale de/la Previdenza Sociale, C-303/19, EU:C:2020:958, paras 28-29. 6 ' EC/, Dias, C-325/09, EU:C:20 II :498, para 64; and the aplicit rejection of purdy temporal considerations by ECJ, Onuekwere, C-378/12, EU:C:2014:13, paras 24-26; this approach was reaffirmed in other (but ~01 all) judgments on permanent residence of Union citizens; for further comments, see Thym, The Evolution of Citizens' Rights in Light of the EU's Constitutional Devdopment', in: Thym (ed), Questioning EU Citizenship (Bloomsbury/Hart, 2017), p. 111-134; and Thym, Elusive Limits, p. 33-39. 68 COM(2000) 757, p. 19, 22 referred to the Charter of Fundamental Rights, migrant integration and the option of naturalisation in decidedly general language. .. See the (different) arguments put forward by Kostakopoulou, The Future Governance of Citizenship (CUP, 2008). ch. 6; Baubock, 'Global Justice, Freedom of Movement and Democratic Citizenship', European Journal of Sociology 50 (2009), p. 1-31; Shaw, 'Citizenship of the Union: Towards a PostNational Membership?', in: Collected Courses of the A.cademy of European Law, Vol. VI-I (Kluwer, 1998), p. 237, 255-277; and Rubio Marin/O'Connell, 'The European Convention and the Relative Rights of Resident Aliens', ELI 5 (1999), p. 4, 7-9. 70 See AC051a Arcarazo, Civic Citizenship Reintroduced?, p. 205-207; Guild, European Identity, ch. 12; and Bell, 'Civic Citizenship and Migrant Integration', European Public Law 13 (2007), p. 311, 315-317. 71 See the references in Thym, Residence as (h facto Citizenship?, p. 13 I- I 38.

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19

In the years following the initial impetus of the Tampere European Council and the 2000 Commission Communication, the concept of 'civic citizenship' was not taken up at the European level. Rather, a growing political consensus emerged among the Member States that immigration policy should not be confined to rights-based equal treatment and residence security and that it should rather comprise elements fostering social cohesion, most visibly in the changing paradigms underlying the concept of migrant integration (see above MN 17).72 This shift of emphasis extended to the case law of the ECtHR which demonstrated a noteworthy appreciation of 'the solidity of social, cultural and family ties with the host country'73 in its case law on Article 8 ECHR after 2006. 74 What is more, several Member States changed nationality laws in the late 1990s and early 2000s by extending or introducing national }us soli rules on ~e basis of which long-term residents could ac.quire nationality, which brings about full equal treatment and residence security. 75 In the context of rules on Turkish workers, the ECJ recognised that 'the acquisition of the nationality of the host Member State represents, in principle, the most accomplished level of integration.'76 Against this background of these developments, the concept of civic citizenship as an alternative to naturalisation gradually lost significance. 20 It is explained in the introduction that EU immigration law endorses the concept of legal status change construing the legal dimension of regular migrants' biographies as a sequence of different legal statuses.n From the perspective of the EU immigration acquis, Directive 2003/109/EC constitutes the ultimate stage a migrant can reach, since the Directive establishes a generic status applicable to people which had originally entered the EU for different purposes. From the perspective of domestic laws, however, an additional step remains possible, since migrants can obtain the nationality of the host state through naturalisation. 78 Against this background, more lenient rules on

naturallaation can be presented as an alternative to achieve the objectives punned by the Long-Term Residents Directive. The EU cannot prescribe this outcome due to the lack of competence,79 but the European Council nonetheless endorsed 'the objective that long-term legally resident third country nationals be offered the opportunity to obtain the nationality of the Member State in which they are resident.' 80 That is not to say that Directive 2003/109/EC conflicts with the acquisition of nationality, since there will always be migrants who do not meet the legal requirements for naturalisation or

72 For an overview, see Mourio Pennoser, 'Redefining Membership. Restrictive Rights and Categorisation in European Union Migration Policy', Journal of Ethnic and Migration Studies 43 (2017), p. 2536, 2543-2545; and Goodman, 'The Civic Integration Tum', in: Weinar/Bonjour/Zhyznomirska (eds), The Routledge Handbook of the Politics of Migration in Europe (Routledge, 2019), p. 167-178 73 Standard formulation for the application of the principle of proportionality first established in ECtHR, judgment of 18 October 2006 [GC], No 46410/99, Oner v. the Netherlands, para 58. 74 For funher comments, see Thym, 'Supranational Courts in Europe. A Moderately Communitarian Tum in the Case Law on Immigration and Citizenship', Journal of Ethnic and Migration Studies 47 (2021), section 2 (forthcoming); and Thym, Residence as de facto Citizenship?, p. 138-143. 7~ See Joppke, Citizenship and Immigration (Polity Press, 2010), ch. 4; and Hansen, 'A European Citizenship or a Europe of Citiuns? Third-country nationals in the EU', Journal of Ethnic and Migration Studies 24 (1998), p. 751-769. 76 ECJ, Demirci u.a., C-171/13, EU:C:2015:8, para 54. 71 See Thym, Legal Framework for EU Immigration Policy, M!II 7; and Thym, Legal Framework for EU Asylum Policy, MN 37-39. 71 After naturalisation, they obtain free movement rights in other Member States as EU citizens. 79 See Thym, Legal Framework for EU Immigration Policy, MN 14. ""European Council, Presidency Conclusions of the Meeting on 15/16 October 1999 in Tampere, para 21; see also Common Basic Principles (CBP) So 6 for immigrant integration policy, Council doc. 14615/04 of 19 November 2004.

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do not want to pursue the avenue for various reasons. 81 It means, rather, that longterm resident status need not be the final legal stage in regular migrants' biographies, even though the practical relevance of the Directive varies between Member States reflecting the different outline of their nationality laws. 82 After naturalisation, former migrants acquire voting rights which Directive 2003/109/EC does not cover (Article 12 MN 37) as well as far-reaching free movement guarantees as Union citizens beyond Articles 14-23 Directive 2003/109/EC.

Article 2 Definitions For the purposes of this Directive: (a) 'third country national' means any person who is not a citizen of the Union

within the meaning of Article 17(1) of the Treaty; (b) 'long-term resident' means any third country national who has long-term resident status as provided for under Articles 4 to 7; (c) 'first Member State' means the Member State which for the tint time granted long-term resident status to a third country national; (d) 'second Member State' means any Member State other than the one which for the tint time granted long-term may criticise ofresident status to a third country national and in which that long-term resident exercises the right of residence; (e) 'family memben' means the third country nationals who reside in the Member State concerned in accordance with Council Directive 2003/86/EC of 22 September 2003 on the right to family reunification< 51; (0 'international protection' means international protection as defined in Article 2(a) of Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless penons as refugees or as penons who otherwise need international protection and the content of the protection granted Contrast the wording of Article 9(1) to Article 10(1) Commission Proposal, COM(2001) 127; Peers/ Guild/Acosta Arcarazo/Groenendijk/Moreno-Lax, EU Immigration and Asylum Law, Vol 2, p. 312 assert a different reading without giving arguments. 110 See, 'for Article 35 Citiunship Directive 2004/38/EC, ECJ, McCarthy et al., C-202/13, EU: C:2014:2450; and Thym, Legal Framework for EU Immigration Policy, MN 48-49. rn See ECJ, Y.Z. et al., C-557/17, EU:C:2019:203, paras 61-67.

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4a

5

6

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ment in cases of loss, since loss of long-term resident status will not usually entail an obligation to leave the country, if the original residence permit referred to in Article 4(1) persists, 312 thereby reaffirming, indirectly at least, that long-term resident status is unlike Family Reunification - not a sensitive human rights matter concerning residence as such (see above Article 6 MN 6). Judges highlighted that '(h]aving regard to the extensive rights attached to long-term resident status, it is important that Member States are able to combat fraud effectively.'m A similar argument was used by the ECJ in a judgment on the Asylum Qualification Directive 2011/95/EU to conclude that subsidiary protection status can be lost in a situation of error (not: fraud), even though the wording of Article 19(3) Directive 2011/95/EU related to fraud and similar situations only. 314 It is not immediately clear whether that conclusion about lou in situation of error not involving fraud can be extended to Article 9(1) Long-Term Residents Directive, also considering that Article 16(1) Directive 2011/95/EU contains general language about changing circumstances and the later withdrawal if the original conditions are no longer fulfilled, while long-term resident status under Directive 2003/109/EC is supposed to be permanent after the initial decision (see above Article 8 MN 2) The conditions for adopting expulsion measures are discussed below, including the need for an individualised assessment (see Article 12 MN 2-10). It seems that the subsequent loss of the residence permit is automatic (see above MN 2), although this effect will only occur after the prior adoption of an expulsion decision. Note that automatic loss is, according to Article 9(l)(b), a mandatory consequence of any expulsion decision and that the procedure for re-acquisition under Article 9(5) does not extend to expulsions and the resultant loss of status under Article 9(l)(b). Article 9(l)(c) stipulates that periods of absence of at least 12 consecutive months entail automatic loss (see above MN 2). Similar rules can be found in many other immigration instruments, although the Long-Term Residents Directive introduces two important innovations. Firstly, the 12-month period is relatively long compared, for instance, with Turkish nationals,315 although it is shorter than the two-year period proposed by the Commission in line with corresponding rules for Union citizens in the Citizenship Directive. 316 Secondly, it relates to any absence from the 'territory of the Community' and does not apply, therefore, when a long-term resident relocates to another Member State. 317 This puts long-term residents in a privileged position supporting intra-European movements for periods of less than six years (see below MN 14), while absence from the Member State before the acquisition of long-term resident status interrupts the qualification period (see above Article 4 MN 5). It is not dear whether short return visits will result in the 12-month period starting again. In light of the purpose of promoting integration (see above Article l MN 14-17) and of ensuring that third country nationals 'put down roots in the country' (Recital 6), it is suggested that simple visits do not interrupt the period. One may use the 'habitual i12 See ECJ, Y.Z. rt al., C-557/17, EU:C:2019:203, para 73 in contrast to paras 51-56 on family reunification. 31 l ECJ, Y.Z. et al., C-557/17, EU:C:2019:203, para 64. i1• See ECJ, Bilali, C-720/17, EU:C:2019:448, paras 44-52. 111 The status under Article 6-7 Association Council Decision No 1/80 is lost automatically after absence for a significant length of time; see ECJ, utinkaya, C-467/02, EU:C:2004:708, paras 36, 38; and Peers, Implementing Equality?, p. 455. i1• See Article I0(l)(a), (3) Commission Proposal, COM(2001) 127 mirroring Article 16(4) Directive 2004/38/EC 317 For the innovative character, see Farahat, '"We want you! But ... • - Recruiting Migrants and Encouraging Transnational Circulation Through Progressive Inclusion', ELI 15 (2009), p. 700, 712-724.

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residence test' of the Social Security Coordination Regulation (EC) No 883/2004 as a point of reference. 318 When habitual residence is not relocated to a third state, short visits abroad entail that the 12-month period commences anew, whenever the long-term resident returns to the European Union. The wording with its reference to Union territory suggests that relocation to Denmark or Ireland may not result in the loss of long-term resident status,ll9 although this conclusion can be disputed in light of the general scheme of the Directive given that both Member States decided voluntarily not to participate in its adoption (see above Article 1 MN 3). By contrast, the United Kingdom undoubtedly counts as a third state after Brexit. Member States may derogate from the two-year rule in accordance with Article 9(2) 8 and shall provide for a re-acquisition procedure, in accordance with Article 9(5), under conditions set out in national law (see below MN 15). Regarding Article 9(2), the meaning of the first 'or' before the term specific, which also features in other language versions, appears superfluous, since it suggests that the provision contains two alternative derogations: one for periods of absence exceeding 12 months, another for 'specific or exceptional reasons.' Given that this interpretation would not attach any condition to the first alternative, the second option would be superfluous. In light of the general scheme of the Directive, it seems, therefore, that Article 9(2) contains one exception for periods exceeding 12 months in relation to which the formulation 'specific or exceptional reasons' is meant to limit state discretion in line with a similar formulation in Article 4(3)(2). 320 In practice, Member States have wide discretion to define when periods of absence exceeding 12 months may constitute 'specific or exceptional reasons' (see above Article 4 MN 17). Periods of work in developing countries can be a legitimate consideration in this context. 321 An exception from Article 9(l)(c) exists for long-term residents being fonner EU 9 Blue Card holder (see above Article 8 MN 7) who may be absent for up to 24 consecutive months, although Member States may restrict this exception to economic activities, voluntary service or studies in countries of origin. 322 This exception is meant to counter the negative effects of the so-called 'brain drain' phenomenon when talent from developing countries applies for work-related migration to Europe.

III. Threat to Public Policy (Article 9(3)) Article 9(3) is confusing at first reading, since it seems to suggest that long-term 10 resident status can be lost even if the conditions for expulsion under Article 12 are not met. 323 On closer inspection, the discrepancy between Articles 9(3) and 12 is less acute, since the former similarly requires a 'threat to public policy', thereby employing a criterion used by the latter. Article 9(3) is even stricter than Article 12 by not covering threats to 'public security.' Against this background, an autonomous application of Article 9(3) requires the conclusion that a person constitutes a threat to public policy for the purposes of Article 9, although the same criterion is not met under m See Article 1(0 Regulation (EC) No 883/2004 and corresponding case law. ""See Peers/Guild/Acosta Arcarazo/Groenendijk/Moreno-Lax, EU Immigration and Asylum Law, Vol. 2, p. 312. lJn This outcome might also be a simple mistake after the Council decided to change the rather complex construction of Article I0(l)(a), (2) Commission Proposal, COM(2001) 127. m See the Explanatory Memorandum for Article 10(3) Commission Proposal, COM(2001) 127, p. 20; and Skordas, Immigration and the Market, p. 218. l 22 See Article 16(4), (5) Blue Card Directive 2009/50/EC. m See Boeles/den Heijer/Lodder/Wouters, European Migration Law, p. 187-188.

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Article 12.m If some Member State provide for withdrawal in circumstances which do not meet the public policy benchmark, such domestic rules are incompatible with Article 9(3), 325 since the term 'threat to public policy' has the same meaning as in other provisions (see above Article 6 MN 2-13). 11 The existence of Article 9(3) seems to confirm that the requirement, in Article 12(1), that threats to public policy must be 'actual' erects an additional hurdle for expulsions exceeding 'simple' threats to public policy (see above Article 6 MN 4). In practice, this will often be connected with the assessment of criminal offences mentioned explicitly in the wording and whose relative weight in the balancing exercise depends on the circumstances of individual case (see above Article 6 MN 11-12 and below Article 12 MN 6). It is questionable, however, whether this potential room for application of Article 9(3) will ever gain much practical relevance given that the relative weight of private and public interests will often be the same under Articles 9(3) and 12. If that is the case, an expulsion is either possible or the public threat condition in Article 9(3) is not met, thereby rendering the latter provision practically irrelevant.

IV. Revocation of International Protection (Article 9(3a)) 12

Article 9(3a) was introduced by Directive 2011/51/EU (see above Article 1 MN 13) and confirms that, as a general rule, the revocation of international protection after the acquisition of long-term resident status does not entail automatic loss or withdrawal of long-term resident status (see above Article 3 MN 6). Instead, withdrawal is only possible when Member States explicitly provide for this option in domestic laws in line with Article 9(3a). Withdrawal of long-term resident status on this basis will always require a positive administrative decision (see above MN 2).

V. Relocation to other Member States (Article 9(4)) 13

14

Article 9(4)(1) concerns the termination of long-term resident status after the same status is acquired in a second Member State. It is unclear whether the effect comes about automatically or requires a decision by the first Member State (see above MN 2), since the formulation 'shall longer be entitled to maintain' (French: perd le droit) avoids the expression 'shall withdraw' in the Commission Proposal without being clear whether loss is automatic instead. ln any case, Member States must provide for the option of re-acquisition, in accordance with Article 9(5), under conditions set out in national law (see below MN 15). Article 9(4)(2) entails the same outcome after six yean of absence from the territory of the first Member State irrespective of whether long-term resident status is acquired in another Member State, thereby complementing Article 9(l)(c) that relocation within the EU does not usually entail the loss of status (see above MN 6). Like in the latter case, short return visits do not interrupt the six-year period in light of the integration objective (see above MN 7). Moreover, Member States may provide for a derogation for longer absences 'for specific reasons' under Article 9(4)(3) whose vague wording leaves Member States much leeway (see above MN 8).

m The last subordinate clause shows that the adoption of an expulsion shall have priority over an activation of Article 9(3) whenever expulsion is possible. m For Member State practice, see the Commission's report on application, COM(2011) 585, p. 5.

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VI. Reacquisition of Status (Article 9(5)) Article 9(5) cushions the consequences of withdrawal or loss of status after periods of IS absence under Article 9{l)(c), (4) with a procedure for re-acquisition. It becomes relevant only when Member States do not use their discretion under Article 9(2), (4)(2) to allow for longer periods of absence. It is mandatory ('shall provide') to establish such a procedure, although the wording of Article 9(5)(3) shows unequivocally that both the substantive conditions and the procedure for re-acquisition shall be determined by national law - a formulation the Council seems to have chosen to prevent the ECJ from interfering with the conditions laid down in domestic immigration laws.

VII. Expiry of Residence Permits (Article 9(6)) Article 9(6) confirms that an expiry of the residence permit shall not entail with- 16 drawal or loss of long-term resident status. Rather, renewal is automatic, although it may be made subject to an application procedure (see above Article 7 MN 4).

VIII. Status in Default of Removal (Article 9(7)) The original Commission Proposal followed the motivation to prevent persons 17 concerned 'finding themselves in a "grey arean• after withdrawal or loss of long-term resident status. 326 To achieve this it wanted to oblige Member States to issue a residence permit in the situation of today's Article 9{l)(a), (c) or when an expulsion decision cannot be executed. 327 The Council did not follow this proposal and included instead a vaguely formulated obligation ('shall authorise') which evades the reference to a residence permit 328 and states explicitly that the authorisation shall only be granted 'if he/she fulfils the conditions provided for in its national legislation' and/or does not constitute a 'threat to public policy or public security.' While public policy and public security are concepts of Union law (see above Article 6 MN 2-13), the reference to domestic law seems to have been chosen to prevent the ECJ from limiting state discretion. If the person concerned does not meet the conditions under domestic law or constitutes a threat, Article 9(7) does not require state action, although such scenarios may be covered by the Return Directive. 329

Article 10 Procedural guarantees I. Reasons shall be given for any decision re;ecting an application for long-term resident status or withdrawing that status. Any such decision shall be notified to the third country national concerned in accordance with the notification procedures

326 327

See Council doc. 10698/01 of 2 August 2001, p. 13. See Article 10(5) Commission Proposal, COM(2001) 127.

328 An 'authorisation' need not be a formal residence permit and may cover, in particular, scenarios such as the German 'Du/dung' in accordance with Section 60a Residence Act (Aufenthaltsgesctz). 12'1 For stay of removal, see Articles 9, 14 Directive 2008/115/EC.

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under the relevant national legislation. The notification shall specify the redress procedures available and the time within which he/she may act. 2. Where an application for long-term resident status is rejected or that status is withdrawn or lost or the residence permit is not renewed, the person concerned shall have the right to mount a legal challenge in the Member State concerned.

Article 10 compliments Article 7 in laying down a number of procedural and judicial guarantees concerning the rejection of applications or withdrawal of status. It follows the general rule that procedural standards in EU legislation are usually limited to a minimum level to allow Member States to adapt European requirements to domestic administrative structures (see above Article 7 MN 2). General prindples of Union law, including human rights, can constrain state discretion further and it ·seems that the guarantees contained in Article 10 are largely declaratory in light of general principles. Notwithstanding this caveat, Article 10 reaffirms that EU immigration law is firmly embedded into the rule of law. 3 JO 2 The obligation to give reasons in the first sentence of Article 10(1) reiterates Article 41(2)(c) EU Charter that can be applied to Member States via general principles of Union law. 331 Notification in accordance with the second sentence does not explicitly require a written procedure, as the Commission had proposed, 332 and explicitly accounts for differences between Member States (see above MN l ). The additional obligation, in the third sentence, to specify the redress procedure available may be standard practice in many Member States; if not, it has to be introduced. It corresponds to the automatic character of loss, in contrast to withdrawal (see above Article 9 MN 2), that reason shall not be given for automatic loss. since Article 10(1) does not mention the scenario. 3 Article 10(2) was amended to cover administrative and judicial appeals through the open formulation 'legal challenge.'m In any case, Member States are obliged to provide for an effective judicial remedy under Article 47 EU Charter whose specifications in accordance with ECJ case law may establish more specific obligations. 33-1

Article II Equal treatment I. Long-term residents shall enjoy equal treatment with nationals as regards: (a) access to employment and self-employed activity, provided such activities do not entail even occasional involvement in the exercise of public authority, and conditions of employment and working conditions, including conditions regarding dismissal and remuneration; (b) education and vocational training, including study grants in accordance with national law; no The situation has been differenl in some Member Stales until recently; see Groenendijk, 'Citizens and Third Counlry Nationals: Differential Trealment or Discrimination', in: Carlier/Guild (eds), L'avenir de la liln-e circulation des personnes dan.s l'U. E. The Future of Free Movement of Persons in the EU (Bruylanl, 2006), p. 79, 98-100. rn See Thym, Conslitulional Framework, MN 37 a. H2 Sec Article 11(1) Commission Proposal, COM(2001) 127. m See Council doc. 10698/01 of 2 August 2001. p. 14; ii seems to me that this amendment was superfluous. since lhe obligalion to apply to couns in the Commission Proposal would nol have prevenled Member States from additionally providing administrative redress beforehand. m See Thym, Conslilulional Framework. MN 37b-37 d. 596

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(c) recognition of professional diplomas, certificates and other qualifications, in accordance with the relevant national procedures; (d) social security, social assistance and social protection as defined by national law; (e) tu benefits; (t) access to goods and services and the supply of goods and services made available to the public and to procedures for obtaining housing; (g) freedom of association and affiliation and membenhip of an organisation representing workers or employen or of any organisation whose members are engaged in a specific occupation, including the benefits conferred by such organisations, without prejudice to the national provisions on public policy and public security; (h) free access to the entire territory of the Member State concerned, within the limits provided for by the national legislation for reasons of security. 2. With respect to the provisions of paragraph I, points (b), (d), (e), (t) and (g), the Member State concerned may restrict equal treatment to cases where the registered or usual place of residence of the long-term resident, or that of family memben for whom he/she claims benefits, lies within the territory of the Member State concerned. 3. Member States may restrict equal treatment with nationals in the following cases: (a) Member States may retain restrictions to access to employment or self-employed activities in cases where, in accordance with existing national or Community legislation, these activities are reserved to nationals, EU or EEA citizens; (b) Member States may require proof of appropriate language proficiency for access to education and training. Access to univenity may be subject to the fulfilment of specific educational prerequisites. 4. Member States may limit equal treatment in respect of social assistance and social protection to core benefits. 4a. As far as the Member State which granted international protection is concerned, paragraphs 3 and 4 shall be without prejudice to Directive 2004/83/EC. 5. Member States may decide to grant access to additional benefits in the areas referred to in pangraph I. Member States may also decide to grant equal treatment with regard to areas not covered in paragraph I. Content

mn. I. General Remarks............................................................................................. II. Equal Treatment beyond the Directive...................................................... III. Specific Guarantees......................................................................................... I. Employment (Ankle l l(l)(a), (3)(a))................................................... 2. Education and Vocational Training (Anicle ll(l)(b), (3)(b)) ......... 3. Recognition of Diplomas (Anicle l l(l)(c)) ......................................... 4. Social Security, Assistance and Protection (Anicle I l(l)(d), (4)) ... 5. Tax Benefits (Anicle 11(1 )(e))................................................................. 6. Public Goods and Services, incl. Housing (Article 11 ( I )(t)) ............ 7. Freedom of Association and Affiliation (Anicle 11( I )(g)) ............... 8. Access to Entire Territory (Anide 11( I )(h)) ....................................... IV. Beneficiaries of International Protection (Article I 1(4a)) ..................... V. More Favourable National Provisions (Anicle 11(5))............................

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I. General Remarks Article 11 is a central provision of great pnctical and conceptual importance. Equal treatment featured prominently in the original promise by the Tampere European Council in October 1999 (see above Article l MN 8) and gained much attention during the legislative procedure when Member States insisted on a number of derogations in today's Article 11(2)-(4). 335 Recital 12 reflects this cautious approach, since it promises unlike the conclusions of the Tampere European Council - equality of treatment with citizens of the Member State not generically, but 'in a wide range of economic and social matters, under the relevant conditions defined by this Directive.' 336 On the whole, one may conclude that the degree of convergence achieved by the Directive amounts to a 'comparable treatment' in the fields covered by Article 11, since the term 'comparable' indicates a lesser degree of parallelism. 337 la More recently, a number of ECJ judgments concerned the provision. The Commission had long reported that it received many complaints by individuals about difficulties they are facing at domestic level. 338 One reason for the protracted difficulties is the reluctance of Member States to adopt implementing legislation; they apply the general legal framework instead, which can result in practical difficulties. 339 2 It should be noted that Article 11 concerns equal treatment with nationals of the host state, not Union citizens residing in a Member State other than that of their nationality.J.40 To do so is a rational regulatory technique, since it follows the legal structure of the provisions for Union citizens who, similarly, can claim equal treatment with nationals, albeit in a broader range of areas. Recital 12 confirms that the provision is audal to achieve the Directive's objective 'to constitute a genuine instrument for the integration of long-term residents into the society in which they live.' The accusation that equal treatment amounts to a call for assimilation does not convince, since the Directive gives options to migrants they are not obliged to follow. 341 Article 11 refrains from promoting a specific cultural vision of good society to which long-term residents are expected to assimilate. 3 Among the exceptions introduced during the legislative procedure, only today's Article 11(2) applies horizontally and allows the restriction of equal treatment to cases where the 'registered or usual place of residence' of either the long-term resident or of the family members lies in the territory of the state concerned. This provision, sponsored by Greece, 342 has the purpose of blocking an export of social benefits in areas covered by Article 11, including family benefits or study grants for children living abroad. 343 The ECJ found the existence of the derogation confirms, argumentum e contrario, that equal treatment under Article 11(1) covers family members residing abroad as a matter of principle, even though the definition of 'family member' in Article 2(e) requires residence in the Member States; to hold otherwise would mean that l

m Sec Council doc. 10698/01 of 2 August 2001, p. lS-18. 1.16

The discrepancy was highlighted by Jesse, Civic Citizens, p. 293.

m Sec Handoll, Directive 2003/109/EC, Article I, MN I.

na Sec the Commission's report on application, COM(201 l) 585, p. 6 m Sec Commission Implementation Report, COM(2019) 161, p. 6. :Mil Sec Peers/Guild/Acosta Arcaru.o/Grocnendijk/Moreno-Lax, EU Immigration and Asylum law, Vol. 2, p. 309. 141 Contra Bell, 'Civic Citizenship and Migrant Integration', European Public law 13 (2007), p. 31 I, 323-324. 142 Stt Halleskov, The Long-Term Residents Directive, p. 193. 141 Stt Hailbronner, Dri11s1aa1sangehorige, p. 165; and ter Steeg. Einwanderungskonzept, p. 383.

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Article 11(2) would serve no purpose. 344 Various Member States have activated the derogation. 345 When doing so, they are free to choose among the two alternative criteria for the definition of place of residence mentioned in the Directive: either formal registration or the 'usual place of residence' (French: lieu de residence . .. habitue[) in line with the established terminology of the Social Security Coordination Regulation. 346 Given that Article 11 does not prevent the application of more favourable rules (see below MN 10), said Regulation (EC) No 883/2004 may allow for the export of social security benefits under more generous conditions. 347 It is established in the case law of the Court of Justice that 'derogations can be relied 3a on only if the authorities in the Member State concerned responsible for the implementation of that directive have stated dearly that they intended to rely on them.' 348 In practice, this seems to imply that the national law containing unequal treabnent has to be adopted after the entry into force of the Long-Term Residents Directive, since domestic authorities cannot state their intention clearly otherwise. On two occasions, the ECJ found that this requirement was not met by the Italian practice; reliance on a pre-ailting legal framework adopted before Directive 2003/109/EC was considered i.nsufficient.l49 This conclusion stands in contrast to the idea, confirmed by settled case law, that Member States need not necessarily adopt new legislation when transposing directives, since an existing legal framework may suffice. 350 In order not to deprive Article 11(2) of its effet utile, it may be necessary, therefore, to allow national parliaments or governments to express their intention in the absence of legislative change. After all, it is not immediately clear what the ECJ expects national parliaments to do, since it would be somewhat superfluous to re-adopt an existing domestic law without changing its substance to comply with the requirement to state clearly that Article 11(2) is to be activated. As a matter of principle, the ECJ holds jurisdiction to test compatibility of acep- 4 lions enshrined in Article 11(2)-(4) with human rights, 351 although an interpretation in light of human rights will take precedence over annulment whenever possible. Judges in Luxembourg confirmed in the Kamberaj judgment on Article 11(4) Directive 2003/ 109/EC that they stand ready to enforce human rights in cases of conflict even if it can be difficult to define the precise contours of social rights in the Charter (see below MN 28). Jurisdiction of the ECJ to rule on compliance of the Directive with human rights must be distinguished from the controversial question under which circumstances Member States are bound by the EU Charter in situation not explicitly covered by the provisions of the Long-Term Residents Directive (see below MN 10-11). It is unfortunate, from the perspective of those applying the law, that statutory 5 guarantees in different instruments of EU immigration law on equal treatment differ in substance, since Article 11 Long-Term Residents Directive does not coincide, for Stt ECJ, lstituto Nazionale de/lo Previdenz.a Sociale, C-303/19, EU:C:2020:958, paras 24-25. Stt the Commission's repon on application, COM(201 l) 585, p. 6. ,... Stt Anide 1(0 Regulation (EC) :-lo 883/2004 and related case law. ,..~ Regulation (EC) No 883/2004, which was extended to third-country nationals by Regulation (EU) No 1231/2010 (OJ 2010 L 344/1), does not apply to all social benefits and rtstricts special noncontributory benefits to the place of residence in its Anide 70: it will be rdevant mainly for benefits qualifying as social security or family benefits within the meaning of the Regulation. ,.. ECJ, lstituto Nazionale de/lo Previdenza Sociale, C-303/19, EU:C:2020:958, para 23; and ECJ, Kamberaj, C-571/10, EU:C:2012:233; para 87. ,... See ECJ, lstituto Nazionak de/la Previdenza Sociale, C-303/19, EU:C:2020:958, paras 37-38; and ECJ, Kamberaj, C-571/10, EU:C:2012:233; paras 87-88. Ho Stt Thym; Constitutional Framework. MN 34. m Stt ECJ, Association beige des Consommateurs Test-A.chats ASBL et al., C-236/09, EU:C:2011:100 on Anide 5(2) Anti-Di.scrimination Directive 2004/113/EC; and Bribosia, Politiques d'integration, p. 69. 344

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instance, with Article 12 Single Permit Directive 2011/98/EU or Article 14 Blue Card Directive 2009/50/EC. 352 This practical difficulty should not be confused, however, with a theoretical critique of widespread differentiation between status holders: it can be argued, from a theoretical standpoint, that solidarity and justice are always relational and that, therefore, generalised and uniform equal treatment follows an obsolete modd of the closed nation state that is not suitable for past- and transnational constellations.353 6 It is understandable that the various exceptions enshrined in Article 11(2)-(4) were met with criticism in initial reactions of academic commentators, since they diverged from the political promise by the Tampere European CounciJ.35'4 Explicit rules on exceptions left the impression that Member States were eager not to grant equal treatment Nevertheless, it is a legitimate political position to claim that full equal treatment remains the privilege of nationals, especially at a time when many European states started reforming their nationality laws to allow for the naturalisation of migrants, often under conditions which are not much stricter than Articles 3-7 Directive 2003/109/EC (see above Article I MN 19). Moreover, the limited KOpe of EU legislation can be a virtue in itself in a supranational union based on the principles of conferral and subsidiarity. Experts on migration should understand that, from a broader constitutional perspective, the vertical balance of power may sustain EU legislation leaving Member States room for autonomous action. 355 Member States are not obliged to use the optional exceptions.

II. Equal Treatment beyond the Directive 7

Recital 12 confirms that the Directive does not establish a general obligation of

equal treatment which is guaranteed, rather, 'in a wide range of economic and social matters under the relevant conditions defined by this directive.' Similarly, Member States relegated a general non-discrimination clause from the operative provisions of the Commission Proposal to non-binding Recital S. 356 8 Notwithstanding the absence of a general obligation to equal treatment, Article 11(5) (2) allows Member States to grant equal treatment 'with regard to areas not covered [by Article 11(1))' (see below MN 36). This limited scope of statutory guarantees is an important indicator that areas not covered by Article 11 fall outside the scope of the Directive and cannot be assessed, therefore, in light of general principles of Union law, including human rights. 357 Indeed, it is often stipulated that the limits of Article II may be overcome under recourse to general principles,3SS although this conclusion requires m See Venchueren, 'Employment and Social Security Rights of Third country Labour Migrants under EU Law. An Incomplete Patchwork of Legal Protection', EJML 18 (2016), p. 373-408; Brinkmann, 'Gleichbehandlung von Drinstaatsangehorigen nach den EU-Migrationsrichtlinien', in: Beichel-Benedetti/Janda (eds), Hohenheimer Horizonte. Festschrift far Klaus Barwig (Nomos, 2018), p. 101, 114; and Bell, 'Civic Citizenship and Migrant Integration', European Public Law 13 (2007), p. 311, 324-326. m See de Wine, Justice in the EU. The Emergrnce of Transnational Solidarity (OUP, 2015). lS4 See Halleskov, The Long-Term Residents Directive, p. 9-10; Boelaert-Suominen, Directive 2003/ 109/EC, p. 1050; and Groenendijk. Denizenship and Integration, p. 437. Jss See, in the context of Union citizenship, Thym, 'Frontien of EU Citizenship', in: Kochenov (ed), EU Citizenship and Federalism. The RolL of Right5 (CUP, 2017), p. 705, 719-722. 156 In contrast to Article 11, Recital 5 does not concern, in line with Article 4 Commission Proposal. COM(2001) 127, equal treatment with nationals by means of less general rules for third-country nationals but discrimination on other grounds such as gender, race or sexual orientation. Js 7 See Halleskov, The Long-Tenn Residents Directive, p. 189; Handoll, Directive 2003/109/EC. Article 11, MN 10; and Boeles/den Heijer/Lodder/Wouten, European Migration Law, p. 184. JSO See Peen/Guild/Acosta Arcaraw/Groenendijk/Moreno-Lax, EU Immigration and Asylum Law, Vol. 2, p. 311.

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careful analysis in light of ECJ c.ase law on the scope of the EU Charter _m While the scope of the exceptions in Article 11(2)-(S) can be challenged under recourse to the Charter in line with ECJ case law, benefits and subjects areas which Member State are not obliged to give to third country nationals on the basis of Article 11 are not usually subject to the Charter. 360 One may activate national constitutions or the ECHR instead, but the ECJ does not hold jurisdiction. 361 The judicial practice of the ECJ confirms that any evaluation of Article 11 in light of 9 the Charter requires an assessment of whether supranational human rights standards are applicable. In Kamberaj, judges showed carefully that an application of the Charter to Article 11(4) Directive 2003/109/EC and national implementing legislation was covered by Article 51 (I) of the Charter. 362 It also rejected a French reference on family benefits in light of Article II Directive 2003/109/EC, since the case at hand was not sufficiently linked to Union law, 363 and emphasised that an Austrian housing benefit that does not qualify as a core benefit within the meaning of Article II(4) Directive 2003/109/EC cannot be assess in light of the Charter. 364 Note that the exclusion of ECJ jurisdiction extends to parallel national permanent residence schemes when third country nationals complain against unequal treatment that could possibly be covered by Article 11 Directive 2003/109/EC for those with long-term resident status under the Directive (see below Article 13 MN 2a).365 By contrast, the P 6 S judgment did not explain well why a Dutch integration 9a measure not affecting the acquisition or loss of long-term resident status was subject to the ECJ's jurisdiction; the opinion of AG Szpunar was more illuminating (see above Article 5 MN 17-18). In particular, the ECJ's conclusion about the Dutch measure being 'in accordance with Article II(l) of Directive 2003/109/EC'366 does not imply that measures not covered by Article 11 should be assessed in light of Article 21 CFR. The ECJ seems to have evaded such differentiation by stating categorically that long-term residents cannot be compared to nationals as far as integration measures are concerned. 367 As a result, the judgment cannot be considered a model for the delineation of jurisdiction. In the Turner judgment, the ECJ concluded that the limited scope of Article 11 10 does not preclude other EU instruments 'from conferring . . . rights on third country nationals with a view to achieving the individual objectives of those acts.' 368 This is confirmed by Article 11 (4a) on more generous rights for beneficiaries of international protection under the Asylum Qualification Directive (see below MN 35) and by the extension of Article II Directive 2003/109/EC for former EU Blue Card holders in the Blue Card Directive 2009/50/EC (see below MN 23). The Stt Thym, Constitutional Framework, MN 47-48. See and ECJ, Land Oberiisterreich, C-94/20, EU:C:2021:477, paras 45-48, 59-62. 161 See ECJ, Akerberg Fransson. C-617/10, EU:C:2013:280, para 44. 12 See ECJ, Kamberaj, C-571/10, EU:C:2012:233, paras 79-80. 163 See ECJ, Mlamali, C-257/13, EU:C:2013:763 (only available in French). 164 and ECJ, Land Oberosterreich, C-94/20, EU:C:2021:477, paras 45-58, 59-62. 163 Stt ECJ, Ajdini, C-312/12, EU:C:2013:103, para 25. 166 ECJ, P & S, C-579/13, EU:C:2015:369, para 43. 16; See ECJ, P & S, C-579/13, EU:C:2015:369, paras 39-43 stating explicitly, in para 40, that 'it must be examined whether such an obligation could be contrary to the principle of equal treatment laid down in Article 11(1) of Directive 2003/109, in the variowfields to which that provision relates' (emphasis added) under explicit reference, in para 42, to AG Szpunar, ibid., para 52 who tellingly had rejected further discussion of equal treatment a limine before the substantive analysis of the scope of Union law for purpose of applying other general principles than equal treatment, in particular proportionality. 1611 ECJ, Turner, C-311/13, EU:C:2014:2337, para 33 concerning Directive 80/987/EEC relating to the protection of employees in the event of the insolvency of their employer (OJ 1980 L 283/23). 3so

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same applies to international agreements concluded by the EU or its Member States (see above Article 3 MN 22-25), including equal treatment guarantees in the Association Agreement with Turkey. 369 Article 11 establishes a minimum level of protection generally allowing for more favourable provisions, either in national laws, supranational legislation or international agreements. It should be noted, however, that Article 13 Single Permit Directive 2011/98/EU does not cover those holding longterm resident status, since they are generally excluded from the scope under Article 3 (2)(i) Single Permit Directive.370 11 Whenever careful analysis leads to the conclusion that the principle of equal treatment in Article 21 of the Charter can be applied to measures covered by the scope of Directive 2003/109/EC. it has to be evaluated in a second step whether we are confronted a violation of equal treatment guarantees. It is described in the introduction that, in line with settled ECJ case law, Article 18 TFEU cannot be relied upon by third country nationals and that the general human right to equality before the law requires a double assessment of whether two situations are comparable in the first place and whether a distinction can be justified in a proportionate manner. Notwithstanding the Kamberaj judgment, it should be noted that both the ECJ and the ECtHR tread carefully when assessing unequal treatment of migrants and nationals or between different migration statuses. m In cases of doubt, domestic courts should make a reference to the ECJ to determine whether the EU is applicable and whether the treatment at issue complies with human rights.

III. Specific Guarantees 1. Employment (Article ll(l)(a). (l)(a)) 12

Article ll(l)(a) gives long-term residents free access to employment and selfemployed activities, thereby supporting labour market integration which most status holders will have achieved already given that status acquisition requires compliance with the stable and regular resources requirement in Article 5(1 )(a). Free access includes the right to switch employen and pursue their fortune in all areas of economic activity under the same conditions applicable to nationals of the host state. Third country nationals cannot be required to be in possession of a work permit. 172 As an equal treatment guarantee, Article ll(l)(a) Directive 2003/109/EC does not contain a negative human right or fundamental freedom to attadt restrictions of market access such as qualification or licensing requirements whenever these rules apply to nationals as well. More generous rules apply to beneficiaries of international protection in accordance with the Asylum Qualification Directive (see below MN 35). A reference by a Hungarian court on the interpretation of the provision was withdrawn and did not result in a judgment. 373 169 Stt Thym, Legal Framework for EU Immigration Policy, MN 58-60; and Peers/Guild/Acosta Arcarazo/Groenendijk/Moreno-Lax, EU Immigration and Asylum Law, Vol. 2, p. 31 I. 370 Verschueren, 'Employment and Social Security Rights of Third country Labour Migrants under EU Law. An Incomplete Patchwork of Legal Protection', EJML 18 (2016), p. 373, 387-388 notes that this can result in a lesser degree of protection, at least in selected areas such as advice services afforded by employment offices in line with Article 13(1)(h) Directive 2011/98/EU and with regard to divergent options for national deviations under Article 13(2) Single Permit Directive. m Stt Thym, Legal Framework for EU Immigration Policy, MN 37-42. m See the Explanatory Memorandum to Anide 12(1)(a) Commission Proposal, COM(200l) 127, p. 21. 171 Stt ECJ, Commission v. Hungary, C-761/19, EU:C:2021:74.

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Article l 1(3)(a) allows Member States to 'retain restrictions' for activities reserved 13 to nationals, EU or EEA citizens in accordance with 'existing' national or EU legislation. The use of the expressions 'retain' and 'existing' signals that the provision establishes a standstill clause allowing for the maintenance of existing rules, while new restrictions cannot be introduced. 374 It seems that ECJ case law on the dynamic character of standstill provisions under the Association Agreement with Turkey can be applied to Article l 1(3)(a) Directive 2003/109/EC. 375 Once Member States abolish a restriction which was compatible with Article l l(J)(a) originally, they cannot reintroduce it at a later point if we interpret the provision to establish a dynamic standstill clause. 376 The provision applies to new Member States as of the day of accession. In line with the Commission Proposal, Article l l(l)(a) exempts from equal 14 treatment activities that 'entail even occasional involvement in the exercise of public authority.' This broad formulation presents an apparent deviation from Article 45(4) TFEU for Union citizens and is meant to prevent the ECJ from applying its restrictive case law on the interpretation of the said provision to Directive 2003/109/EC. 377 It is settled ECJ case law, that 'professional activities involving contacts, even regular and organic, with the [exercise of public authority], including even compulsory cooperation in their functioning, do not constitute, as such, connexion with the exercise of official authority' 378 and that, therefore, besides teachers and lawyers even private security personnel or notaries are not exempted from the free movement of workers under Article 45(4) TFEU. 379 This case law cannot be extended to Directive 2003/109/EU. Notwithstanding careful drafting, Article ll(l)(a) does not provide for a carte 15 blanche, since it takes up the ECJ's formulation of 'exercise of public authority' (French: exercice de l'autorite publique; German: Ausubung offentlicher Gewalt) instead of the broader 'public service' (French: administration publique; German: offentliche Verwaltung) used in Article 45(4) TFEU. This signals that an organisational understanding of public service should be rejected, i.e. the simple fact that teachers are part of the public service in a Member State does not exempt the profession from Article ll(l)(a) Directive 2003/109/EC. The provision embraces a substantive concept of public authority mirroring case law on Union citizens (see above MN 14), but ensures through the formulation 'even occasional involvement' that stricter standards should be applied to long-term residents than to Union citizens. The precise demarcation line remains difficult to define, but one could argue, for instance, that teachers and lawyers are not excluded from Article l l(l)(a), while notaries and private security personnel can be subject to special provisions. It is another question whether it is wise policy to exempt long-term residents from access 174 See Handoll, Directive 2003/109/EC, Article 11, MN 12; and Boelaert-Suominen, Directive 2003/ 109/EC, p. 1026. 175 See Peers/Guild/Acosta Arcarazo/Groenendijk/Moreno-Lax, EU Immigration and Asylum Law, Vol. 2, p. 310. 176 Cf. for Turkish nationals ECJ, Demir, C-225/12, EU:C:2013:725. ""'See Peers/Guild/Acosta Arcarazo/Groenendijk/Moreno-Lax, EU Immigration and Asylum Law, Vol. 2. p. 310; Bribosia, Politiques d"integration, p. 67; and Hallesko\·, The Long-Term Residents Directive, p. 191; it is not plausible to construe the exception as a direct reaction to the ECJ judgment on Case C-405/01. as Groenendijk, Denizenship and Integration, p. 438, does, since that judgment was delivered after the Commission Proposal and reflects settled case law. ,,. ECJ, Reyners, 2/74, EU:C:1974:68, para 51. 179 See EC). l.awrie-Blum, 66/85, EU:C:1986:284 for teachers; ECJ, Reyners, 2174, EU:C:1974:68 for lawyers; ECJ, Commission v. Spain, C-114/97, EU:C:1998:519 for private security personnel; and ECJ, Commission v. Germany, C-54/08, EU:C:2011:339 for notaries with cenain public functions.

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in the public service, since participation of migrants in the civil service may promote integration and social cohesion. 380 16 In addition to free labour market access, Article ll(l)(a) guarantees equal working conditions in line with Article 15(2) EU Charter that may be used as a· point of reference for interpretation. 381 This guarantee should be construed generously in light of human rights and the Directive's objective and may include diverse matters such as working hours, safety, health standards or holiday entitlements. 382 Conditions regarding dismissal and remuneration are mentioned by way of example.

2. Education and Vocational Tnining (Article ll(l)(b), (3)(b)) Article 11( l)(b) on education and vocational training. including study grants, was not subject to much debate during the legislative procedure, although the Council introduced an aception in Article 11(2) to prevent exportation of sodal benefits subject to the conditions discussed above (see MN 3-3a) for long-term residents and family members living abroad, including for the pursuit of studies in another country. More generous rules apply to beneficiaries of international protection in accordance with the Asylum Qualification Directive (see below MN 35). 18 The expression 'education and vocational training' is to be understood broadly covering all levels of vocational guidance, further training and even job conversion or work experience schemes. 383 This broad reading follows the general scheme and the objective of the Long-Tenn Residents Directive which, in contrast to Article 7(3) Free Movement Regulation (EU) No 492/2011. does not require a direct connection to employment. 384 19 The explicit exception in Article 11(3)(b) that Member States may require proof of appropriate language proficiency or fulftlment of educational prerequisites for access to education and training, such as enrolment as a law student, appears to be largely declaratory in nature given that Article 11(1) establishes equal treatment guarantees with nationals, not negative fundamental rights to challenge general restrictions to university access (see above MN 12). Recital 14 emphasises that access to the educational system shall be 'under conditions similar to those laid down for ... nationals.' If language proficiency and educational prerequisites are not required for nationals, they cannot be requested for long-term residents - and vice versa. When Member States provide for an integration condition under Article 5(2), compliance with it can facilitate access to education provided that the level of language skills required for passing the integration requirement is sufficiently high for university access. 385 20 Equal treatment under Article l l(l)(b) extends to study grants 'in accordance with national law.' This explicit deference to domestic laws may pre-empt ECJ from interfering extensively with domestic legislation, 386 possibly a reaction by Member States in the Council to protracted disputes about study grants for Union citizens in the early 2000s. The attempt to exclude measures under social assistance schemes financed by the 17

l80 S«, indirectly, Common Basic Principles (CBP) Nos 9, 10 for immigrant integration, Council doc. 14615/04 of 19 November 2004, p. 23-24; Bribosia, Politiques d'integration, p. 67; and Bell, 'Civic Citizenship and Migrant Integration', European Public Law 13 (2007), p. 311, 322-323. :iai S« Thym, Legal Framework for EU Immigration Policy, MN 34. 311 2 S« the Explanatory Memorandum to Article 12(1)(a) Commission Proposal, COM(2001) 127, p. 21. Jal S« the Explanatory Memorandum lo Article 12(1)(a) Commission Proposal, COM(2001) 127, p. 21. )II.I See Hallcskov. The Long-Tenn Residents Directive, p. 194 on Article 7(3) Regulation (EU) No 492/ 2011 (OJ 2011 L 141/1) replacing Regulation (EEC) No 1612/68 (OJ English Special Edition Ser. I Ot. 1968(11), p. 475) on which extensive case law emts. 311~5« Halleskov, The Long-Tenn Residents Directive, p.194. 3116 S« Handoll, Directive 2003/109/EC, Article 11. MN 18.

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general budget from the notion of study grants through the definition in the first sentence of Recital 15, cannot alter the scope of Article ll(l)(b). 387 It is the responsibility of the ECJ to define when a measure constitutes a study grant, whereas Member States remain responsible for defining the conditions under which study grant shall generally be made available. If they do so, they have to treat long-term residence on an equal footing. 388 The conditions laid down by the Member States can possibly fall foul of the effet utile of the Long-Term Residents Directive when they render it practically impossible for long-term residents to obtain study grants, while nationals find it much easier to meet the requirements. 389

3. Recognition of Diplomas (Article ll(l)(c)) Under Article I I(l)(c) long-term residents enjoy equal treatment with nationals as 21 regards recognition of profeMional diplomas, certificates and other qualifications. This guarantee of equal tffatment with nationals does not incorponte the ECJ case law on the right of Union citizens on the recognition of professional qualifications under the fundamental freedoms of the single market into the Long-Term Residents Directive, since this case law emanates from the concept of restrictions to transnational economic activities (see above MN 12). 390 In contrast to rules for Union citizens, Article 1l(l)(c) does not contain a free-standing guarantee that professional qualification should be recognised. It establishes, rather, that procedures which are available at national level shall be applied equally to long-term residents. The explicit reference that recognition shall be 'in accordance with the relevant national procedures' reaffirms that the provision is about equal treatment in the application of domestic procedures, not about a right to have one's qualification recognised irrespective of whether there are domestic procedures available. Since Article ll(l)(c) does not distinguish between qualification obtained inside 22 and outside the EU, both are covered by the provision. It should be noted that EU legislation on the recognition of professional qualification does not cover third -country nationals, since the general framework of Directive 2005/36/EC and more specific guarantees on lawyers in Directive 98/5/EC are confined to Union citizens. 391 It is discussed elsewhere on which legal basis the EU legislature could extend these instruments to third country nationals. 392

4. Social Security, Assistance and Protection (Article 1I(l)(d), (4)) Article l l(l)(d) is a crucial provision of great political and pnctical importance, 23 since access to social benefits is a politically sensitive terrain which, moreover, is bound for intricate legal problems of interpretation and application due to the complexity of domestic rules. The terminology used in Article l I(l)(d) has to be construed autonomously, as confirmed by the ECJ. The Council introduced an exception in Article 11(2) to prevent exportation of benefits for long-term residents and family members living abroad· under the conditions laid down in domestic law provided that supranational legal requirements for clear use of the derogation are met (see above MN 3-3a). This option of non-exportation does not apply to long-term residents holding an EU Blue See Hailbronner, Drittstaatsangehorige, p. 165. See Halleskov, The Long-Tenn Residents Directive, p. 195. Generally, see Thym, Constitutional Framework, MN 16. '"° Cf. ECJ, Vlassopoulou, C-340/89, EU:C:19'Jl:193; and EC), Morgenbesser, C-313/01, EU:C:2003:612. 191 See Mticle 2(1) Directive 2005/36/EC (OJ 2005 L 255/22); and Article l(2)(a) Directive 98/5/EC (OJ 1998 L 77/36). 392 See Thym, Legal Framework for EU Immigration Policy, MN 17 a. J8>

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Card previously (see above Article 8 MN 7). They are subject to the provisions of Directive 2009/50/EC guaranteeing the payment of statutory pensions when former Blue Card holders move to a third state.393 24 The drafting history shows that the thematic range Article ll(l)(b) is limited and does not cover all social benefita. The Commission had proposed to take up established EU terminology to cover contribution-based 'social protection' (including 'social security'), 'social assistance' for people in need paid for by the general state budget and broader 'social benefits.'394 The reference to 'social benefits' was deleted by the Council during the legislative procedure, thereby excluding a variety of benefits from the scope of the Directive, since the term 'social benefit' is generally understood to cover diverse categories of economic or cultural benefits irrespective of financial need (a criterion relevant for social assistance). Social benefits in this sense may include concessionary public transport fares, reduced admission charges for cultural and other events or subsidised meals for children in school.395 This exclusion of social benefits from the scope of equal treatment does not mean that Member States are obliged to discriminate against long-term residents in these domains (see above MN 6). All it means is that they are free to decide on their own and that the ECJ has no jurisdiction in this respect (see above MN 7-9). 25 Besides the deletion of the term 'social benefits', the Council added that Member States shall guarantee equal treatment in relation to social security, social assistance and social protection 'as defined by national law.' This explicit deference to domestic legal systems precludes - unlike in the case of Article 12(l)(e) Single Permit Directive 2011/98/EC - an interpretation of the terminology used under reference to ECJ case law on similar terminology in the Social Security Coordination Regulation. 396 This was confirmed by the ECJ in Kamberaj: when the legislature 'has made an express reference to national law, as in Article l l(l)(d) of Directive 2003/109, it is not for the Court to give the terms concerned an autonomous and uniform definition under European Union law. Such a reference means that the ... legislature wished to respect the differences between the Manber States concerning the meaning and eud scope of the concepts in question.'397 It also made clear that deference to domestic law does not give Member States a carte blanche, since they have to respect general principles of Union law, including human rights and the effet utile of the Directive's objective (see below MN 28). 26 Member States enjoy discretion, therefore, when deciding which benefits qualify as 'social security' and 'social assistance', while the term 'social protection' seems to be largely identical with social assistance. 398 Nevertheless, the discretion has legal limits, in extreme cases at least, for instance when a Member State tries to exclude general financial income support for poor people as not relating to social assistance, although the concept of social assistance is generally understood to cover support granted by the See Articles 16(6) and 14(1)(0 Blue Card Directive 2009/50/EC. ,... See Article 12(1)(d)-(0 Commission Proposal. COM(2001) 127. '" 5 See the Explanatory Memorandum attached to the Commission Proposal, COM(2001) 127, p. 22 '9)

referring to settled case law of the ECJ on Article 7(2) Regulation (EEC) No 1612/68 (OJ English Special Edition Ser. I Oi. 1968(11), p. 475) that was replaced by Article 7(2) Regulation (EU) No 492/2011 (OJ 2011 L 141/1) on free movement of workers in the meantime; see also Halleskov, The 1..Dng-Tenn Residents Directive, p. 198. _... See Halleskov, ibid., p. 198-199. m ECJ, Kamberaj, C-571/10, EU:C:2012:233, para 77; see generally Thym, Constitutional Framework, MN 12a; and also Boeles/den Heijer/Lodder/Wouters, European Migration Law, p. 184-185; and De Vries, 'Towards Integration and Equality for Third-Country Nationals?', E.L Rev. 38 (2013), p. 248, 251; and the reference to case law on Union citizenship above Article 5 MN 8. '"'Cf. Article 12(1)(d) Commission ProposaL COM(2001) 127 listing 'social assistance" as a subcategory of 'social protection' together with 'health-care.'

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public authorities for individuals without stable and regular resources (see above Article 5 MN 8). Moreover, Member States may be subject to more specific obligations under other EU instruments (see above MN 10), such as the Social Security Coordination Regulation that may apply when third country nationals work in another EU Member State than the state in which they hold the long-term resident permit. The Council introduced an exception in Article 11(4) that Member States may 27 limit equal treatment 'to core benefits'. It is evident from the wording of the provision that it covers existing and future restrictions in the fields of 'social assistance and social protection', thereby excluding social security from the scope of Article 11 (4). This limitation of the exception is understandable in light of ECtHR case law on equal treatment in contribution-based social security schemes that may be covered by the right to property under Article 1(1) Additional Protocol No 1 to the ECHR 399 Recital 13 tries to describe the meaning of 'core benefits' by referring to 'at least minimum income support, assistance in cases of illness, pregnancy, parental assistance and long-term care'. This list is not exhaustive, though, since the term 'core benefits' should be given a generic meaning beyond a list of selected benefits, mirroring the general definition of social assistance used in other domains (see above MN 26). The ECJ found that the exception covers 'benefits granted by the public authorities, at national, regional or local level, which enable individuals to meet their basic needs such as food, accommodation and health.' 400 This resonates with later ECtHR and ECJ case law on basic socio-economic living conditions under Article 3 ECHR and Article 4 of the Charter, whose precise meaning remains unclear, as described in the introductory chapter on asylum policy. 401 In Kamberaj, the ECJ emphasised that the reference to domestic law for defining 28 what is covered by the term social assistance (see above MN 25) does not preclude application of general principles. including human rlghts. 402 This entails that Member States act within the scope of Union law when limiting equal treatment to core benefits, although national rules cannot be assessed in light of the Charter in case they transcend the minimum level of protection for core benefits (see above MN 8). On this basis, the ECJ applied Article 34 of the Charter without giving a clear indication of whether doing so would lead to a different outcome when the domestic court takes a final decision on the case at hand. 403 This reluctance to decide whether the Italian housing benefit in question was covered by the concept of 'core benefits' shows that the ECJ will be careful in restricting an exception explicitly provided for by EU legislation in light of human rights. Absence of judicial guidance on the precise scope of Article 34 of the Charter reflects general uncertainties about the precise meaning of the social rights and principles enshrined in the Charter. 404 Moving beyond the human rights assessment with its inbuilt focus on minimum 28a requirements, the Land Oberosterreich judgment found that 'core benefits' can include dom~tic rules with a higher level of social protection than the minimum threshold covering everyone. Thus, additional housing benefits transcending the level of support m See Thym, Legal Framework for EU Immigration Policy. MN 39; and Boelaen-Suominen, Directive 2003/109/EC, p. 1027. 400 ECJ, Kamberaj, C-571/10, EU:C:2012:233, para 91; reaffirmed by and ECJ, Land Oberiisterreich, C94/20, EU:C:2021:477, para 38. "' 1 See Thym, Legal Framework for EU Asylum Policy, MN 57a-57 b. "'2 See ECJ. Kamberaj, C-571/10, EU:C:2012:233, paras 78-80. "'l See ECJ, Kamberaj, C-571/10, EU:C:2012:233, para 91; ECJ, Land Oberosterreich, C-94/20, EU: C:2021:477, para 39; and De Vries, 'Towards Integration and Equality for Third-Country Nationals?', EL Rev. 38 (2013), p. 248, 253-254. See Thym, Constitutional Framework, MN 49.

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available for those with no income may still qualify as 'core benefits' if they are found to support individuals in meetings basic needs in terms accommodation. 405 The precise delimitation between support for basic needs, which must be extended to long-term residents as a 'core benefit', and higher levels of protection, which allow Member State to exclude long-term residents, defies easy definition. Judges left it to domestic courts to apply the abstract criteria of the supranational case law. 406 5. Tax Benefits (Article l l(l)(e))

29

Article l l(l)(e) extends equal treatment to tu benefits without referring to domestic law like in the case of social assistance (see above MN 25). This means that the ECJ may have recourse to its case law on today's Article 7(2) Regulation (EU) No 492/2011-when determining the somatic scope of equal treatment under Article l l(l)(e). 407 Again, Member States are not obliged to introduce or maintain specific tax benefits, but they have to treat long-term residents equally when they do so. 30 As mentioned before, the Council laid down an exception in Article 11(2) to prevent exportation of benefits for long-term residents and family members living abroad (see above MN 3-3a), although it is not immediately clear in how far the provision may be relevant for tax benefits. Still, Member States have the freedom to activate the exception when the question comes up in the complex domain of tax law.

6. Public Goods and Services, incl. Housing (Article l l(l)(f)) 31

Long-term residents are to enjoy equal treatment with nationals as regards access to goods and services made available to the public, including procedures for obtaining housing. Equal access in this domain is crucial for successful integration policies towards migrants and to support social cohesion.408 As mentioned before, the Council introduced an exception in Article 11(2) to prevent exportation of benefits for longterm residents and family members living abroad (see above MN 3-3a), although this exception may not have much practical impact for public goods and services that will usually concern only people living in a country. 32 The equal treatment guarantee enshrined in Article 11 ( 1)(0 does not require Member States to make certain goods or services available to the public. However, they are obliged to treat long-term residents equally when they do so. The provision covers goods and services provided by both public authorities and private actors under the conditions that they are 'made available to the public', something which will usually require statutory obligations in case of private actors. 409 The Council limited equal treatment to 'procedures for obtaining housing' instead of simply referring to 'housing.'410 This change seems to emphasise that the provision contains no individual right that housing shall be made available to individuals who, rather, may request equal treatment with nationals in allocation procedures. 411 In contrast to rules on Union 405

406

See ECJ, Land Oberiisterreich, C-94/20, EU:C:2021:4n, paras 41-44. See ECJ, Land Oberiisterreich, C-94/20, EU:C:2021:477, para 43; and ECJ, Kamberaj, C-571/10, EU:

C:2012:233, para 92. 407 Cf. Article 7(2) Regulation (EEC) No 1408/71 (OJ 1971 L 149/2) which replaced Regulation (EEC) No 1612/68 (OJ English Special Edition Ser. I Ch. 1968(11), p. 475) on freedom of movement for workers. 408 See Common Basic Principles (CBP) No 6 for immigrant integration, Council doc. 14615/04 of 19 November 2004, p. 21. - For instance, public authorities may subsidise construction of housing by private actors under the condition that it shall be made available to specific applicants under privileged conditions. 41 Cf. Article 12(l)(g) Commission Proposal, COM(2001) 127. 411 Not all applications will have to be approved if housing is scarce.

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citizens, the provision only covers housing made available to the public, not any activity relating to housing such as land purchases by long-term residents. 412

7. Freedom of Association and Affiliation (Article ll(l)(g)) Under Article l l (I )(g), long-term residents are to enjoy equal treatment with 33 nationals as regards freedom of association and affiliation as well as membership of organisations representing worken or employen. Such equal treatment may appear self-evident for long-term residents from a political perspective, but brings related disputes within the scope of Union law, including the Charter of Fundamental Rights (see above MN 8). As mentioned before, the Council introduced an exception in Article 11(2) to prevent an application of these guarantees to long-term residents or family members living abroad (see above MN 3-3a). Article 11 ( l )(g) covers trade unions and chamben of commerce or any other 34 organisation related to work. The broad wording covers both voluntary and compulsory membership foreseen in some Member States for regulated professions such as lawyers on the basis that no distinction is made with nationals. 413 The exception for public policy or public security was introduced by the Council and may cover extreme scenarios of political agitation for which Article 16 ECHR establishes a similar exception for foreigners. As a concept under Union law, 'public policy' and 'public security' may establish stricter standards than the ECHR (see above Article 6 MN 9-10).

8. Access to Entire Territory (Article I l(l)(h)) Article ll(l)(h) guarantees equal treatment as regards free access to the entire 35 Member State (not: Union) territory, thereby replicating a human rights guarantee under Article 2(1) Additional Protocol No 4 to the ECHR that has not been ratified by all Member States. 414 Article l l(l)(h) brings corresponding disputes within the scope of Union law (see above MN 7-9). Again, long-term residents or family members living abroad may be excluded from equal treatment in accordance with Article 11(2) (see above MN 3-3a). The exception that equal treatment shall be guaranteed 'within the limits provided for 36 by the national legislation for reasons of security' appears largely declaratory given that equal treatment does not establish rights which are not available to nationals (see above MN 12). It will be relevant only when certain Member States establish restrictions specifically for foreigners, for instance in relation to military zones. 415

IV. Beneficiaries of International Protection (Article 11 (4a)) Article I l(4a) exempts beneficiaries of international protection from the exceptions laid 37 down in Article 11(3), (4) in so far as there are more generous guarantees in the Asylum Qualification Di.rective. 416 This provision appears declaratory in nature in light of ECJ case 412 Cf. the broader scope of Article 9 Regulation (EU) No 492/2011 (OJ 2011 L 141/1 ); and Halleskov, The Long-Term Residents Directive, p. 200. 413 See the Commission in Council doc. 10698/01 of 2 August 2001, p. 18. 41 ' The Charter of Fundamental Rights does not contain a similar guarantee, since Article 45(1) is limited to Union citizens and is usually understood, moreover, to apply to transnational free movement in other Member States only in light of Article 52(2) of the Charter. 415 The restriction seems to go bad. to concerns voiced by Spain and Sweden; see Council doc. 10698/01 of 2 August 2001. p. 18. 416 See Peers, Transfer of International Protection, p. 549.

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law that the Long-Term Residents Directive does not preclude other EU legislation from conferring more rights (see above MN 10). In practice, this will primarily concern economic activities, education and recognition of professional qualifications in accordance with Articles 26-28 Asylum Qualification Directive 2011/95/EU, since equal treatment of beneficiaries of international protection in social welfare may be limited to core benefits under the Asylum Qualification Directive in the same vein as in the case of Article 11(4).417

V. More Favourable National Provisions (Article 11(5)) Article 11(5) explicitly allows Member States to grant equal treatment under more generous conditions than those described in Article ll(l)(a)-(h) and in areas not covered by the thematic scope of Article 11 in the first place. To say so appears largely declaratory, because Article 11 must generally be construed as establishing a minimum level of protection allowing for more favourable treatment at domestic, European or international level (see above MN 10). Article 11(5) does not change the scope of the Directive and does not render more generous domestic rules subject to general principles of Union law, including human rights (see above MN 7-9). 39 One additional area outside the scope of the Directive where Member States may want to grant equal treatment in voting rights, at least at municipal level The Council had rejected an amendment proposed by the European Parliament in this respect, 418 but some Member States allow for varied degrees of political participation. 419 Others may reserve political participation to nationals, while at the same time allowing long-term residents to acquire nationality, thereby rejecting the initial idea that long-term resident status should be developed into self-sufficient 'civic citizenship' instead of promoting integration by means of naturalisation (see above Article l MN 18-20).

38

Article 12 Protection against expulsion I. Member States may take a decision to ape( a long-term resident solely where he/she constitutes an actual and suffidendy serious threat to public policy or public security. 2. The decision referred to in paragraph I shall not be founded on economic considerations. 3. Before taking a decision to expel a long-term resident, Member Stales shall have regard to the following factors: (a) the duration of residence in their territory; (b) the age of the person concerned; (c) the consequences for the person concerned and family members; (d) links with the country of residence or the absence of links with the country of origin. '" See Article 29 Asylum Qualification Directive 2011/95/EU; and above MN 27; equal treatment on accommodation and free movement under Articles 32-33 ibid. takes legally residing third-country nationals as the relevant comparator and does not establish more generous standards as a result. ""See the Amendment No 35 proposed by the European Parliament, EP doc. PS_TA(2002)0030 of 5 February 2002 (OJ 2002 C 284 E/94). 4 19 See Slama. 'Ressorti.ssants des pays tiers legalement installes: possibles mais improbables citoyens', in: Gauthier/Gautier (eds), L'immigration /igale: aspects de droits europerns (Bruylant, 2011). p. 153-174; and Groenendijk/Guild, Converging Criteria, p. 44-45.

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3a. Where a Member State decides to expel a long-term resident whose long-term resident's EU residence permit contains the remark referred to in Article 8(4), it shall request the Member State mentioned in that remark to confirm whether the person concerned is still a beneficiary of international protection in that Member State. The Member State mentioned in the remark shall reply no later than 1 month after receiving the request for information. 3b. If the long-term resident is still a beneficiary of international protection in the Member State mentioned in the remark, that person shall be expelled to that Member State, which shall, without prejudice to the applicable Union or national law and to the principle of family unity, immediately readmit, without formalities, that beneficiary and his/her family memben. 3c. By way of derogation from paragraph 3b, the Member State which adopted the expulsion decision shall retain the right to remove, in accordance with its international obligations, the long-term resident to a country other than the Member State which granted international protection where that person fulfils the conditions specified in Article 21(2) of Directive 2004/83/EC. 4. Where an expulsion decision has been adopted, a judicial redress procedure shall be available to the long-term resident in the Member State concerned. S. Legal aid shall be given to long-term residents lacking adequate resources, on the same terms as apply to nationals of the State where they reside. 6. This Article shall be without prejudice to Article 21(1) of Directive 2004/83/EC. Content I. II. III. IV.

mn. General Remarks................................................................................................ I Expulsion on Grounds of Public Policy or Security (Article 12(1)-(3)) la Beneficiaries of International Protection (Article 12(3a)-(3c), (6))..... 11 Judicial Redress and Legal Aid (Article 12(4)-(5)).................................. 15

I. General Remarks While the public policy and security exception in Article 6 concerns the refusal of applications for long-term residence permits, Article 12 is about later expulsion of those holding long-term residence status. Expulsion results in the loss of the status as a result of which third country nationals will usually be obliged to leave the Member State concerned in full compliance with the Return Directive 2008/115/EC. The provision was discussed controversially in the legislative procedure and its interpretation raises a number of delicate problems relating primarily, like in the case of Article 6, to the interaction with rules on the expulsion of Union citizens, which the ECJ clarified in recent case law emphasising the need for differentiated outcomes.

II. Expulsion on Grounds of Public Policy or Security (Article 12(1)-(3)) It was described in the introductory chapter that the ECJ emphasised that the meaning la of 'public policy' shall have a parallel meaning when it comes to Union citizens and third country nationals as a matter of principle, even though this need not result in identical outcomes. 420 In line with recent ECJ case law, we need to consider interpretative 420

See Thym, Legal Framework for EU Immigration Policy, MN 42a-42 d.

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principles, including the drafting history, the general scheme of the Directive, the constitutional context and case law on Turkish nationals (see above Article 6 MN 3-8), in order to determine to what extent the provision should be interpreted in paralld to rules for Union citizens or be subject to differentiated outcomes. · 2 The drafting history shows unequivocally that the Council rejected the Commission Proposal to align rules on long-term residents with Union citizenship, as the European Council in Tampere had originally promised (see above Article I MN 8, 15). 421 Recital 11 of the Commission Proposal that long-term residence should enjoy 'maximum protection against expulsion . . . based on community law relating to the free movement of persons' 422 was replaced by the new Recital 16 that protection against expulsion should be 'reinforced' (instead of 'maximum') and be 'based on the criteria determined by the decisions of the European Court of Human Rights.' Moreover, the formula that.'solely [the) personal conduct' should be taken into account was abandoned in a similar vein as restrictive formulations in the Commission Proposal concerning criminal convictions; so was the express limitation that long-term residents should not be sanctioned if Member States did not take severe enforcement measures against their own nationals in similar scenarios. 423 These changes signalled distance to rules on Union citizens (see below MN 6) and the Council took up a number of criteria instead flowing from the ECtHR's human rights case law (see below MN 9-10). In line with ECJ case law, the drafting history is an important first indicator that Article 12 should not be interpreted in line with the Citizenship Directive 2004/38/EC. 424 3 Article 12 was the object of the Lopez Pastuzano judgment, in which a Spanish court had asked the ECJ whether a domestic rule on status withdrawal covered convictions, since some Spanish courts had applied the provision to administrative sanctions only. The ECJ answered the question to the positive: criminal convictions can be relevant. 425 At the same time, the small chamber of three judges deciding the case evaded a clear-cut statement as to what Article 12 required, even though it referred to the Ziebell judgment, which had distinguished the status of Turkish nationals from citizens' rights, and reiterated the need for an individualised assessment in line with the criteria laid down in Article 12(3).426 The lack of clear-cut answers in the Lopez Pastuzano judgment can be perceived as an interlude at a time when judges in Luxembourg were still uncertain how to construe the public policy exception before later cases developed a general pattern. 427 4 In line with settled ECJ case law, the notion of 'public policy' concerns any 'genuine and sufficiently serious threat ... affecting one of the fundamental interests of society' (see above Article 6 MN 8), thereby demonstrating that the adjective 'sufficiently serious' in the wording of Article 12(1) does not establish an additional criterion, since it is inherent in the definition of public policy. The term 'public security' relates primarily to scenarios of fundamental internal or external threats to a country's existence (see above Article 6 MN 9). It is also well established that Member States benefit from a margin of discretion when specifying what constitutes a threat to public 421 See Papagianni, Institutional and Policy Dynamics of EU Migration Law (Martinus Nijhoff, 2006), p. 296-297; and Wiesbrock. Legal Migration, p. 45. m Recital 11 Commission Proposal, COM(2001) 127. m Council doc. 10698/01 of 2 August 2001, p. 20 listed French and German resistance to Article 13(2) Commission Proposal, COM(2001) 127. 424 ECJ, G.S. & V.G., C-381/18 & C-382/18, EU:C:2019:1072, para 59 similarly considered the drafting history when interpreting Article 6 Family Reunification Directive. m ECJ, Lopez Pastuzano, C-636/16, EU:C:2017:949, para 26. 426 ECJ, Lopez Pastuzano, C-636/16, EU:C:2017:949, paras 22-29. 427 See above MN la; and Thym, Legal Framework for EU Immigration Policy, MN 42c-42 d.

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policy,428 thus emphasising the room for differentiated solutions in line with the distinct legislative and constitutional framework for long-term resident third country nationals in contrast to Union citizens (see above MN la). It is sometimes said that the 'disappointing'429 outcome of the legislative process may 5 be rectified under recourse to general principles of Union law. 430 We should be careful, however, not to overstate the potential of general principles in 'correcting' legislative choices given that the general principles mentioned in this context, such as case law on Union citizens, the status of Turkish nationals or human rights, 431 do not mandate full synchronisation of the public policy and security exception in Article 6, 12 Directive 2003/109/EC with rules on Union citizens due to the specificities of the rules applicable to long-term resident third country nationals (see above Article 6 MN 3-8). Instead, we have to strive for an intermediate solution in line with ECJ case law by distinguishing between long-term residents and Union citizenship in the application of the abstract definition to specific scenarios. 432 Like in the case of Article 6, the question arises whether criminal convictions of a 6 sufficiently serious nature can be covered by the public policy or security exception (see above Article 6 MN 11 ). To do so is explicitly excluded for Union citizens by means of an express prohibition in the Citizenship Directive, which the Commission had proposed to integrate into today's Article 12 Directive 2003/109/EC. 433 This was rejected by the Council together with an amendment to Article 12(1) replacing the proposed reference that 'solely personal conduct' can constitute a threat to public policy or security with the more generic formulation 'he/she.' This subtle change of terminology is relevant, since it indicates that the wording of Article 12 differs markedly from the rules applicable to Union citizens - a change of wording that was highlighted by the ECJ in judgments emphasising a lesser degree of protection for third country nationals under sectoral public policy clauses. 4:M More specifically, the requirement of the threat being 'actual' does not necessarily entail that the personal conduct after conviction needs to constitute a threat to public policy, as long as there are reasonable arguments to be put forward that a sufficiently serious criminal conviction in the past amounts to an actual threat in terms of generally influencing the behaviour of migrants. 435 We have to conclude, therefore, in line with ECJ case law that the wording, the drafting history (see above MN 2) and Recital 8 (see above Article 6 MN 11) support past criminal convictions being covered by the public policy exception. m See, by way or example, ECJ. Van Duyn, 41174. EU:C:1974:133, para 18 for EU citizens; and, in the context or immigration and asylwn, ECJ. T., C-373/13, EU:C:2015:413, para 77. 429 Acosta, The Long-Term Residence Status, p. 137. , Having regard to the opinion of the Committee of the Regions< 2>,

" 1 OJ untry national, or by his or her employer, for the authorisation of residence and work in the territory of a Member State, to a decision ruling on that application for the single permit. Content

mo. I Third-country national··················-··························-·································· 3 Third-country workers .................................................................................. 4 Single permit.................................................................................................... 11 Single application procedure........................................................................ 12

I. General remarks and drafting history........................................................

II. Ill. IV. V.

I. General remarks and drafting history This article contains some basic definitions of the terms that are widely used throughout the Directive. Some of them are common to other instruments, like the notion of 'thirdcountry nationals', and did not pose any problems during the negotiating procedure. The notions of 'single permit' and 'single application procedure' were debated and 2 clarified through several amendments of the European Parliament and the Council. But the most problematic notion and the one that suffered more changes when compared to the text of the Commission's Proposal is that of'third-country worker'. The Proposal of the Commission contained a simpler definition, referring to 'any third-country national who has been admitted to the territory of a Member State and is allowed to work legally in that Member State'. Several Member States considered that definition too broad, and proposed .further clarifications. 39 In the course of the negotiations, two important "' Council doc. 6212/08 of 5 March 2008.

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elements were added to this definition: the 'third-country worker' in question has to be 'legally residing', and has to be allowed to work 'in the context of a paid relationship (. .. ) in accordance with national law or practice' ..w

II. Third-country national 3

In the same way as other legal migration directives,41 Article 2(a) defines the notion of 'third-country national' as any person who is not a citizen of the Union. The determination of who is a citizen of the Union is made by reference to Article 20(1) TFEU, which in its tum refers to the nationality of the Member States: '[e]very person holding the nationality of a Member State shall be a citizen of the Union'. This definition entails that those not holding any nationality, that is to say stateless persons, are also included in the EU definition of 'third-country national'. This is in conformity with article 67(2) TFEU, according to which, for the purposes of Title V TFEU, devoted to the Area of freedom, security and justice, 'stateless persons shall be treated as thirdcountry nationals'.

III. Third-country worken As already mentioned, the notion of 'third-country worker' was highly debated during the negotiations of the Directive. Several Member States feared that this notion would be too broad and, at a certain point of the negotiations in the Council, the possibility to substitute this notion for that of 'single permit holder' was seriously considered. 42 Nonetheless, the final text of the Directive follows the Commission's Proposal and has conserved the notion of 'third-country workers' as one of the core concepts of this legal instrument. The confirmation of the applicability of the Directive to 'third-country workers', and not merely to 'single permit holders', entails once again a confirmation that the scope of the Directive is not limited to those who applied for the single permit under the single application procedure. This broad notion has nonetheless to be contrasted with the wide range of exclusions from the scope of the Directive introduced by Article 3. S The definition of 'third country worker' contains three different elements that are cumulative: to be considered a third-country worker according to the terms of this Directive, the third-country national in question has to be (a) already been admitted to the territory of a Member State (b) continue to reside legally and (c) allowed to work. 6 The first element, namely, that the third-country national is admitted to the territory of a Member State, has to be understood in light of Article I(l), which states that the objective of the Directive is to lay down a common set of rights to third-country workers, irrespective of the purposes for which they were initially admitted. In this regard, the Commission's Proposal clearly stated the aim that the Directive would apply also to 'those who were initially admitted for other purposes and were also given access to the labour market on the basis of Community or national provisions (e.g. family 4

Brinkmann, Opinion of Germany, p. 351, 357. e.g. Anide 2 of the Blue Card Directive 2009150/EC; the Long-Tenn Residents' Directive 2003/109/ EC; Family Reunification Directive 2003/86/EC; Article 3 of the Students and Researchen Directive 2016/ 801/EU. See also Article 3 of the Seasonal Workers Directive 2014/36/EU and of the ICT Directive 2014/ 66/EU. 42 Council doc. 8145109 of 30 March 2009. 40

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members, refugees, students, researchers)'. In this regard, it has to be noted that this interpretation remains valid even when these groups are excluded from the scope of the Directive, according to its Article 3: the fact that the third-country national was initially admitted for purposes other than work is irrelevant as long as she has been granted an authorization to work at a later stage (for example, changing the basis of her title of residence). The second element requires that the third-country national is legally residing in a Member State. This means that the third country national, already admitted to the territory of a Member State, has to continue to reside legally.43 It is therefore not enough that there was a first regular admission if the third-country national has failed to renew her status, or if other circumstances have brought about the termination of the legal residence. This element, which was not present in the Commission's Proposal, was added during the negotiations in the Council.44 The third element establishes that the third-country national has to be allowed to work. This provision, as contained in the Commission's Proposal, was considered too broad by some Member States. Therefore, a reference to the fact that the third country national in question has to be allowed to work 'in the context of a paid relationllhip' was added at the request of those Member States who wished to clarify that the Directive is not applicable to self-employed workers.45 In this regard, it was suggested by some Member States and by the Council Legal Service, that the exclusion of selfemployed persons should be explicitly stated in Article 3, which addresses the scope of application of the Directive. 46 The final wording of the Directive follows this recommendation: according to Article 3(2)(k), those 'who have applied for admission or who have been admitted to the territory of a Member State as self-employed workers' are explicitly excluded from the scope of the Directive. From the above-described definition, it can be concluded that Article 2(b) contains a formal definition of worker that is not linked to the actual exercise of economic activities, but to the authorisation to work in a Member State. Indeed, according to the definition of Article 2(b), a third-country national can be considered a 'third-country worker' even when she is not actually employed. This definition has therefore to be borne in mind in order to understand some of the exceptions and derogations to the equal treatment principle inserted in Article 12 of the Directive that limit the application of the equal treatment principle to those third-country nationals who are in employment. The wording of the definition of 'third-country worker' also leads to the conclusion that this definition does not follow the definition of 'worker' usually contained in the framework of EU free movement law, according to Article 45 TFEU. 47 Indeed, even though the concept of 'worker' has an autonomous meaning under EU law, it is not 0 The concept of 'legal residence' may have different meanings in the different EU legislative instnunents, as illustrated in ECJ, Balandin and Others, C-477/17, EU:C:2019:60, paras 32-37 . .. Council doc. 12054/08 of 22 July 2008. This addition was also contemplated in the Position of the European Parliament adopted at first reading on 24 March 2011. 45 Council doc. 6212/08 of 5 March 2008. For the evolution and the different versions of this provision during the negotiations in the Council, with a particular focus on the role of Germany, see Brinkmann, Opinion of Germany, p. 351, 357. 46 Council doc. 144668/08 of 29 October 2008. 47 The ECJ has interpreted the notion of worker in numerous occasions. See e.g. ECJ, Lawrie-Blum, C-66/85, EU:C:1986:284, para 17, where the ECJ establish that 'the essential feature of an employment relationship ( ... ) is that for a cenain period of time a person performs services for and under the direction of another person in return for which he receives remuneration'. A!. long as an effective and genuine activity is pursued, 'the level of productivity, the source of the funds from which the remuneration is paid and the nature of the legal relationship between the employee and the employer are of no

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always possible to uniformly interpret concepts in different contexts of EU legislation.48 Differently from other EU migration directives, such as the Blue Card Directive 2009/50/EC,49 the Single Permit Directive does not require for the work to be 'genuine and effective'. Moreover, the reference to 'national law or practice' seems to aim explicitly at preventing the emergence of an autonomous consideration of worker in the field of the common migration policy that would mirror the notion of worker in the field of EU free movement law. This interpretation is confirmed by recital 19, which states that the definition of third-country worker in this Directive is without prejudice 'to the interpretation of the concept of employment relationship in other provisions of Union law'.

IV. Single permit 11

The definition of the 'single permit' is contained in Article 2(c), and refers to any residence permit issued by the authorities of a Member State that allows third-country nationals to reside for work purposes. The single permit therefore entails two authorizations: to reside and to work. This permit is destined to be the sole document to be issued by Member States, as Article 6(2) of the Directive contains a prohibition to issue additional permits as proof of authorisation to access the labour market. This new approach is aimed at simplifying the procedure, but also at easing the possibilities of control of the administrative situation of third country nationals by the national authorities. During the negotiations in the Council, some Member States insisted to introduce in this definition a reference to Regulation 1030/2002. The Commission insisted that this was not necessary, because this point should be read in conjunction with Article 6, which already contains the reference to Regulation 1030/2002. 50 In this regard, a new recital was included. following the suggestions of the Presidency during the negotiations in the Council, 51 which states that 'the provisions of the Directive do not concern uniform or long-stay visas' (recital 11).

V. Single application procedure 12

The 'single application procedure' is broadly defined in Article 2(d). It encompasses any procedure that, on the basis of a single application to reside and work, made by a third-country national or by his or her employer, leads to a decision on that application for the single permit. This definition already anticipates that Member States will be able to allow that applications be introduced by employers or by the third-country nationals themselves. The first legislative resolution of the European Parliament under the consultation procedure already contained an amendment in this sense. 52

consequence in regard to whether or not a person is to be regarded as a worker', EC), Bettray, C-344/87, EU:C:1989:226, para 15. 411 E.g. with regard to the notion of"social security', see AG Wahl, EC), Brey, C-140/12, EU:C:2013:337, paras 34 and 40. •• Blue Card Directive 2009/50/EC, Aniclc 2(b). 50 Council doc. 144668/08 of 29 October 2008. 51 Council docs. 15500/08 of 11 November 2008 and 16065/08 of 21 November 2008. sz European Parliament doc. P6_TA(2008)0558 of 20 November 2008 (OJ 2010 C 161240).

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Article 3

Scope I. This Directive shall apply to: (a) third-country nationals who apply to reside in a Member State for the purpose of work; (b) third-country nationals who have been admitted to a Member State for purposes other than work in accordance with Union or national law, who are allowed to work and who hold a residence permit in accordance with Regulation (EC) No 1030/2002; and (c) third-country nationals who have been admitted to a Member State for the purpose of work in accordance with Union or national law. 2. This Directive shall not apply to third-country nationals: (a) who are family members of citizens of the Union who have exercised, or are exercising, their right to free movement within the Union in accordance with Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States07 >; (b) who, together with their family members, and irrespective of their nationality, enjoy rights of free movement equivalent to those of citizens of the Union under agreements either between the Union and the Member States or between the Union and third countries; (c) who are posted for as long as they are posted; (d) who have applied for admission or have been admitted to the territory of a Member State to work as intra-corporate transferees; (e) who have applied for admission or have been admitted to the territory of a Member State as seasonal workers or au pairs; (0 who are authorised to reside in a Member State on the basis of temporary protection, or who have applied for authorisation to reside there on that basis and are awaiting a decision on their status; (g) who are beneficiaries of international protection under Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third-country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted< 18> or who have applied for international protection under that Directive and whose application has not been the subject of a final decision; (h) who are beneficiaries of protection in accordance with national law, intematio_nal obligations or the practice of a Member State or have applied for protection in accordance with national law, international obligations or the practice of a Member State and whose application bas not been the subject of a final decision; (i) who are long-term residents in accordance with Directive 2003/109/EC; ij) whose removal has been suspended on the basis of fact or law; (k) who have applied for admission or who have been admitted to the territory of a Member State as self-employed workers; , 1~, ,1s1

OJ L 158, 30.4.2004, p. 77. OJ L 304. 30.9.2004, p. 12.

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(I) who have applied for admission or have been admitted as seafarers for employment or work in any capacity on board of a ship registered in or sailing under the flag of a Member State.

3. Member States may decide that Chapter II does not apply to third-country nationals who have been either authorised to work in the territory of a Member State for a period not eueeding six months or who have been admitted to a Member State for the purpose of study. 4. Chapter II shall not apply to third-country nationals who ue allowed to work on the basis of a visa. Content I. General remarks and drafting history........................................................ II. Scope of the Directive (Article 3(1)) .......................................................... III. Exclusions from the scope of the Directive (Article 3(2))..................... I. Family members of Union citizens who have exercised free movement (liL a)......................................................................................... 2. Persons who enjoy equivalent free movement rights to Union citizens (Article 3(2)(b))............................................................................ 3. Posted workers (Article 3(2)(c)).............................................................. 4. Intra-corporate transferees (Article 3(2)(d)) ........................................ 5. Seasonal workers and au-pairs (Article 3(2)(e)).................................. 6. Beneficiaries of or applicants for temporary protection (Article 3

(2)(0)............................................................................................................. 7. Beneficiaries of international protection under Directive 2004/83/ EC (Article 3(2)(g)) .................................................................................... 8. Beneficiaries of protection under national or international law (Article 3(2)(h))........................................................................................... 9. Long-term residents (Article 3(2)(i)) ..................................................... 10. Persons whose removal has been suspended (Article 3(2)(j)) ......... 11. Self-employed workers (Article 3(2)(k))................................................ 12. Seafarers (Article 3(2)(1)) .......................................................................... IV. Exclusions from Chapter II of the Directive............................................ I. Possibility to exclude those authorised to work for not more than six months (Article 3(3)) .......................................................................... 2. Exclusion of visa holders (Article 3(4)) .................................................

mn. 1 3 11 12 13 14 15 16 18 19 21 22 23 25 26 27 28 29

I. General remarks and drafting history l

Article 3, which detennines the scope of application of the Directive, was one of its most debated provisions. The difficulty to reach an agreement on the scope of application lead to the blocking of the negotiations in the Council in 2009. Indeed, whereas a majority of delegations wished to maintain the approach proposed by the Commission, a minority insisted in restricting the scope of the Directive to holders of a residence pennit issued on the basis of the single application procedure. 53 2 The text of Article 3 underwent considerable modifications during the negotiation process through the amendments of the Council and of the European Parliament, which excluded several groups of third country nationals that the Commission Proposal did not initially intend to exclude. This was one of the major points of disagreement between the LIBE and EMPL committees in the context of parliamentary debates. Having in mind that one of the purposes of the Directive is to establish a common level 5l

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playing field and common rights to all third country nationals legally residing in the Member States, the exclusion of no less than 12 categories is one of the most criticized dements of this legal instrument. Indeed these broad exclusions downplay the spirit of the Directive to serve as a horizontal instrument and to attain a certain levd of uniformity in the approach of the Union to legal migration.s-a The Directive does not therefore overcome the situation of fragmentation of EU migration law. 55 Most of the exclusions contained in this article have been justified by the fact that other EU instruments contain specific regimes, which set up more favourable provisions. However, this is not entirely true. Blue Card holders as well as trainees under the Researchers and Students Directive are not excluded from the scope of the Single Permit Directive despite being covered by other more specific EU law instruments. Moreover, the lack of a systematic approach to the status of different groups of legal residents in the different migration directives renders the list of exclusion of this Directive - which is supposed to contain the minimum common denominator in terms of rights for migrant workersparticularly regrettable. The complexity flowing from the long list of exclusions from the scope of application in Article 3(2) is furthered even more by the fact that, according to Article 3(4), Chapter II of the Single Permit Directive has an even narrower scope of application than the rest of the Directive, as it does not apply to third-country nationals who are allowed to work on the basis of a visa.

II. Scope of the Directive (Article 3(1)) According to Article 3( 1), which defines the scope of the Directive, this instrument is 3 applicable to third-country nationals (a) who apply to reside in a Member State for the purpose of work; (b) those who have been already admitted for purposes other than work but who are allowed to work and are holders of a residence permit according to Regulation 1030/2002; and (c) those who have been admitted to work according to EU or national law. The text of the Commission's Proposal contained a simpler definition of the scope of 4 application, referring to (a) third-country nationals seeking to reside and work and (b) third-country workers legally residing in a Member State. Whereas the application of the Directive to single permit applicants did not raise any concerns, the inclusion of all third-country workers led to a strong debate in the Council. Some Member States raised general concerns and considered that the scope should be restricted to persons who have come for the purpose of work, excluding those who were admitted for other purposes (refugee, family members) even if they were granted access to the labour market. Nonetheless, the Commission strongly opposed this view, due to the objective of the Directive to create a horizontal framework. 56 Moreover, the reference to 'third-country workers legally residing in a Member State' 5 led to a- controversy on the legal basis of the directive. In this regard, during the first period of negotiations in the Council, before the entry into force of the Treaty of Lisbon, the Council Legal Service objected the use of Article 63(3) TEC as the appropriate legal basis to include under the Directive third country nationals who had not been admitted 5-< This criticism was broadly reflected during the parliamentary discussions. See Opinion of the Committee on Employment and Social Affairs of 30 April 2010, included in the UBE Report of 22 October 2010 A7-0265/2010. ~~ Morano-Foadi/de Vries, in Morano-Foadi/Malena (eds), Integration for third country nationals, p. 37; CouroMe, L'immigration «onomique au sens du droit de )'Union europeenne, p. 64. 56 Council doc. 6212/08 of 5 March 2008.

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under EU provisions.57 This disagreement lead to a debate on the notion of 'legal residence' and to the blocking of the negotiations for a considerable period of time, since several Member States wanted to restrict the application of the directive solely to single permit holders. Only with the entry into force of the Lisbon Treaty an agreement could be reached. '.'>Ii Article 3(1 )(a) establishes that the Directive shall apply to those who apply to reside for the purpose of work: this indent covers all those who have not been already authorized to reside and work and are applying for a residence permit which conducts to a work authorization. Article 3(1 )(b) was introduced during the negotiations in the Council, and covers persons who fulfil three requirements: they should have been admitted for purposes other than work in accordance to national or EU law; they should be allowed ·to work, and they should hold a residence permit in accordance to Regulation 1030/2002. The reference to third-country nationals who have been admitted for purposes other than work was introduced at the request of some Member States, 59 in order to reflect appropriately in the scope of the Directive the provisions of its Article 7. 60 This inclusion lead to some adjustment: as a compromise solution, a new recital 16 was included, according to which the provisions of the directive do not prevent Member States from issuing additional documents in order to give more precise information on the employment relationship for which the format of the single permit does not leave enough space. Article 3(1 )(c) covers all the workers that have already been admitted for the purpose of work, not through the single application procedure, but through other mechanisms defined in EU or national law. The combination of these three provisions entails that the Directive applies not only to third-country nationals who have been granted a residence permit under the provisions of the single application procedure, but also to other categories of third country nationals holding other types of residence permits and who have access to the labour markets such as holders of national permits; Blue Card Holders, family members of third country nationals; students and scientists. Indeed, even if this provision does not explicitly mention these groups of third country nationals, it has to be noted that these categories are not excluded, according to the exhaustive cases enumerated in Article 3(2) of the Directive. Therefore, it can be concluded that these groups fall within the scope of the Single Permit Directive for all the situations in which this instrument could eventually be considered more favourable. This interpretation is backed by the travaux preparatoires. 61 With regard to the situation of students, their exclusion was explicitly debated during the negotiations in the Council, but was not finally reflected in the text of the Directive, after the Commission clarified that there was no risk of clash with the Students Directive. 62 An important point with regard to the scope of application which is not explicitly referred to in Article 3(1) is whether the Directive is applicable to those already present in the territory of a Member State. In this regard, in the framework of the negotiations in the Council, the Commission pointed out that third-country nationals already 57 Sec e.g. Council doc 7721/09 of 18 March 2009. so Council doc. 6273/10 of 10 February 2010. Sec funher on this aspect of the drafting history, Groenendijk. Equal Treatment of Workers from Third Countries, p. 550--551. 59 Council doc. 15500/08 of 11 November 2008. 60 Council doc. 15113/08 of 6 November 2008. 61 On this discussion: Council doc. 7710/09 of 18 March 2009. 61 Council doc. 6212/08 of 5 March 2008.

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present in the territory of a Member State may also apply for a single permit if national law allows them lo submit the application in the their territory.63 The Presidency suggested the inclusion of a recital explaining this possibility,64 but it was not taken on board in the final text of the Directive. Another issue not explicitly dealt with in the text of the Directive is the status of frontier workers. According to the Commission, this group should be also understood as excluded from the scope of the Directive since it applies to third country nationals who work and reside in the same Member State (or who apply to do so). 65 However, such an exclusion does not clearly follows from the text of the Directive, as residence is only mentioned in Article 3(l)(a) but not in letters (b) and (c) of the same provision.

III. Exclusions from the scope of the Directive (Article 3(2)) The exclusions from the scope of the Directive are exhaustively enumerated in 11 Article 3(2), which refers to twelve excluded groups of third-country nationals. The regime of exclusions follows closely the provisions of the Blue Card Directive 2009/50/ EC which also excludes from its scope of application all those who are admitted or have applied under humanitarian reasons, those who fall under other instruments, those who are entitled to rights similar to free movement rights and those whose removal has been suspended.

I. Family members of Union citizens who have exercised free movement (lit. a) This exclusion, already to be found in the Commission's Proposal, is based on the 12 premise that free movement law already grants family members of EU citizens who have exercised free movement a more favourable status. Indeed, their situation is regulated by the Free Movement Directive 2004/38/EC,66 which contains specific provisions on the entry, stay and the application of the equal treatment principle to EU citizens and the members of their family. According to the case law of the ECJ, this provision not only refers to family members of citizens of the Union who are exercising free movement in the present, but also to those who have exercised free movement rights in the past. This reference is misleading and its interpretation is open to discussion. 67 Indeed, it only covers past movement 'in accordance with Directive 2004/38/EC'. Therefore, the reference to 'past movements' does not include in this exception family members of EU citizens that return to their home Stale after having exercised free movement rights. 68 Indeed, this situation is not governed by Free Movement Directive 2004/38/EC, as the ECJ has clarified that '(i)t follows from a literal, systematic and teleological interpretation of Directive 2004/38 that it does not es~blish a derived right of residence for third-country nationals who are family members of a Union citizen in the Member State of which that citizen is a 03 Council doc. 6212/08 of 5 March 2008 . .. Council doc. 12054/08 of 22 July 2008. •s Council doc. 10807/08 of 2 July 2008. M> Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States (OJ 2004 L 158/77). 67 lbe Blue Card Directive 2009/50/EC contains a similar provision. See commentary to Article 3(2)(c) to the Blue Card Directive 2009/50/EC in this volume. .. ECJ, Singh, C-370/90, EU:C:1992:296; ECJ, Eind, C-291/05, EU:C:2007:771.

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national'. 69 In the same vein, Article 3(2)(a) does not encompass those third country nationals who derive residence rights from their relationship with an EU citizen as a primary carer which are directly based in Article 20 TFUE but not on the exercise of free movement rights according to Free Movement Directive 2004/38/EC.m

2. Persons who enjoy equivalent free movement rights to Union citizens (Article 3(2)(b)) 13

The exclusion of those who enjoy free movement rights equivalent to Union citizens under international agreements was not contemplated in the proposal of the Commission. Its inclusion was suggested during the course of the negotiations in the Council, following the wording of the similar clause contained in the Blue Card Directive, and . did not encounter any opposition. 71 Article 3(2)(b) is mostly intended to exclude nationals of third-states that enjoy a privileged status. This is the case of Norway and Iceland, on the basis of the EEA Agreement as well as of Switzerland, on the basis of a bilateral agreement. n

3. Posted worken (Article 3(2)(c)) 14

The exclusion of posted workers was already provided for in the proposal of the Commission, which made reference to 'those covered by Directive 96/71/EC as long as they are posted'. Even though some Member States and the Parliament expressed certain reluctance towards this exclusion, 73 the discussions in the Council and in the Parliament mostly concentrated in the clarification of the posted workers covered by this provision. 74 The reference to Directive 96/71/EC having been suppressed from the final text of Article 3(2)(c), this exclusion could be understood as comprising both workers posted between the Member States and those posted directly from third countries. The exclusion of posted workers covered by Directive 96/71 /EC, even if perpetuating the internal market approach to those workers as accessories to the freedom to provide services,75 could be justified because of the existence of a separate legal instrument in EU law. However, the exclusion of workers posted directly from third countries means that those workers are not offered any kind of status under EU law (but for those covered by the ITC Directive 2014/66/EU). 76 It could be argued that both exclusions are ultimately justified by the fact 69 ECJ, 0., C-456/12, EU:C:2014:135, para 37. Even though in this case the ECJ decided to apply Directive 2004/38/EC by analogy with regard to the conditions for granting a derived right of residence, the application by analogy of this Directive in order to enlarge the scope of the aclusion provided for in Article 3(2)(a) of the Single Permit Directive, would run counter its effet utile. '° ECJ, Ruiz Zambrano, C-34/09, EU:C:2011:124. See, in this regard, Peers/Guild/Acosta Arcarazo/ Groenendijk/Moreno-Lax. EU Immigration and Asylum Law, p. 224, footnote 9. 71 Council doc. 12342/08 of 2 October 2008. 72 Agreement on the European Economic Area between the European Communities, their Member Stales and the Republic of Austria, the Republic of Finland, the Republic of lcdand, the Principality of Liechtenstein, the Kingdom of Norway, the Kingdom of Sweden OJ 1994 L 1/1. Agreement between the European Community and its Member States, of the one part, and the SY.iss Confederation, of the other, on the free movement of persons, OJ 2002 L 114/1. 71 Council doc. 6212/08 of 5 March 2008. 74 At a certain point, two different exclusions were contemplated: c) all posted workers identified in Directive 96/71/EC as long as they are posted and e) who are posted between one or several Member States and one or several third-countries by a service supplier for the purpose of rendering cross-border contractual servias. This last point was proposed by some Member States, but the Commission thought that it should be deleted, because point c) already covered all posted workers. Council doc. 15113/08 of 6 :--lovember 2008. The Parliament insisted in not acluding workers posted directly from third states. See on the negotiations, Potisepp, The Negotiations. p. 17. "" See in this regard De Lange, The Single Permit Directive, p. 6. 1 • Verschueren, Employment and Social Security Rights, p. 106.

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that posted workers remain under an employment relationship with the company of the posting State, and therefore do not fall under the definition of third country worker of the Directive.n Finally, recital 7 clarifies that the situation of third country nationals legally resident in a first Member States who are posted to other Member States shall however remain unaffected with regard to the rights that the Single Permit Directive grants them in the first Member State: they shall continue to enjoy equal treatment with respect to nationals of the Member State of origin for the duration of their posting. in respect of those terms and conditions of employment which are not affected by the application of Directive 96/71/EC.

4. Intra-corporate transferees (Article 3(2)(d)) The exclusion of those who have applied for admission or have been admitted as 15 intra-corporate transferees, already contemplated in the Commission's Proposal, was also motivated by the fact that the Commission envisaged the adoption of a specific and separate proposal, which was finally adopted as the JCT Directive 2014/66/EU. Since the concept of intra-corporate transferee does not refer to national law or practice, it is an autonomous concept of EU law. The ICT Directive 2014/66/EU provides for a definition of 'intra-corporate transfer' in its Article 3(b), according to which this concept covers 'the temporary secondment for occupational or training purposes of a thirdcountry national who, at the time of application for an intra-corporate transferee permit, resides outside the territory of the Member States, from an undertaking established outside the territory of a Member State, and to which the third- country national is bound by a work contract prior to and during the transfer, to an entity belonging to the undertaking or to the same group of undertakings which is established in that Member State, and, where applicable, the mobility between host entities established in one or several second Member States'. Nonetheless, having in mind that the ICT Directive 2014/66/EU was adopted after the Single Permit Directive, this exception also affects intra-corporate transferees admitted under national regimes applicable before the JCT Directive 2014/66/EU.

S. Seasonal worken and au-pairs (Article 3(2)(e)) The exclusion of seasonal workers from the scope of the Directive also bears relation 16 with the existence of a specific instrument on their status: the Seasonal Workers Directive 2014/36/EU. The concept of 'seasonal worker' is defined in Article J(b) of that Directive. The Commission's proposal already took into account the perspectives of adopting a specific instrument with regard to seasonal workers. According to recital 9, these workers should not be covered given their temporary status. During the negotiations in the Council, several Member States thought that other 17 categories of third-country nationals residing on a temporary basis should also be excluded from the scope of the Directive,78 in line with the Long-Term Residents' Directive 2003/109/EC. 79 However, the Commission made clear that these two instruments have different purposes, and that excluding all the cases of temporary stay would jeopardize the objective of the horizontal instrument. In the framework of the negotia"It appears, according to Potisepp, The Negotiations, p. 17, that that position was held by the Council during the negotiations. " Council doc. 6212/08 of 5 March 2008. 79 Council doc. 6212/08 of 5 March 2008. They refer to the long-term residents Directive, whose Article 3(1 )(e) excludes all those 'who reside solely on temporary grounds such as au pairs or seasonal workers, or as a worker posted by a service provider for the purposes of cross-border provision of services, or as cross-border of services in cases where their residence permit has been formally limited'.

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tions, only the inclusion of au-pairs made its way into the final wording of this provision. 80 17a The concept of 'au-pair' is defined in Article 3(8) of the Students and Researchers Directive (EU) 2016/801. However, recital 54 of that last Directive includes a somehow contradictory indication, stating that the Single Permit Directive should apply to au pairs when they are considered to be in an employment relationship in the Member State concerned. Accordingly, the exclusion of au pairs shall be given a very narrow interpretation: they shall not be considered as excluded from the scope of the Single Permit Directive if they are considered employees under national law. 17h The Single Permit Directive does not however exclude other groups to which the Students and Researchers Directive applies, such as trainees or volunteers if they have an employment relationship according to the law of the Member State concerned, as also confirmed in recital 54 of the Students and Researchers Directive (EU) 2016/801.

6. Beneficiaries of or applicants for temporary protection (Article 3(2)(t)) 18

The initial Commission's proposal already foresaw the exclusion of those 'staying in a Member State as applicants for international protection or under temporary protection schemes'. In this regard, the European Parliament, in the first legislative resolution tabled under the consultation procedure in 2008, proposed to eliminate the reference to persons authorised to stay under temporary protection schemes,81 inasmuch as they are authorised to work according to article 12 of the Temporary Protection Directive 2001/ 55/EC. Nonetheless, in the framework of the ordinary legislative procedure, the Parliament agreed to this exclusion. The current text, according to a parliamentary amendment and to Council negotiations,82 includes applicants for temporary protection as well as those who have been authorised on this basis, reproducing the exclusion already provided for in the Blue Card Directive 2009/50/EC. 83

7. Beneficiaries of international protection under Directive 2004/83/EC (Article 3(2)(g)) 19

This provision was introduced during the negotiation procedure through amendments by the European Parliament and the Council.84 The Commission's Proposal only contemplated the exclusion of those residing as applicants of international protection and of those who have applied for recognition as refugees and whose application had not yet given rise to a final decision. Even when during the negotiations in the Council some Member States questioned the exclusion of beneficiaries of international protection, and expressed the view that they should not be excluded from the provisions of chapter III of the Directive, regarding the principle of equal treatment, the fact that the Blue Card Directive already contemplated these exclusions played an important role. 85 In this regard, the Commission stated that the rights of beneficiaries of international protection are expressly provided for in the relevant EU instruments. 86 The final text of this provision reproduces the exclusion already provided for in the Blue Card Directive 2009/50/EC. 87 00

Council doc. 14668/08 of 29 October 2008. See European Parliament doc. PE409.737v03-00 of7 November 2008, amendment 17. 11 As reflected e.g. in Council doc. 10708/10 of 8 June 2010 . ., Anicle 3(a). 84 See e.g. Council doc. 10708/10 of 8 June 2010. as Council doc. 14668/08 of 29 October 2008. 16 Council doc. 15113/08 of 6 No"'mber 2008. 11

" Anicle 3(b ).

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Since the former Asylum Qualification Directive 2004/83/EC has been repealed by 20 the new Asylum Qualification Directive 2011/95/EC, this provision has to be understood as to referring to the later instrument.

8. Beneficiaries of protection under national or international law

(Article 3(2)(h)) Article 3(2)(h) completes the list of exclusion of beneficiaries of the different kinds of 21 humanitarian protection by excluding those who are beneficiaries of protection in accordance with national law, international obligations or State practice, as well as those who have applied for any of these protections. As is the case of the two previous indents, this provision reproduces the exclusion already provided for in the Blue Card Directive 2009/50/EC.88

9. Long-term residents (Article 3(2)(i)) This exclusion was already contemplated in the Commission's proposal. According to 22 recital 8, long-term residents should not be covered since they already enjoy a more privileged status according to the Long-Tenn Residents' Directive 2003/109/EC, and since they are also holders of a specific residence permit, the 'Jong-term resident-EU'. However, looking at the content of the rights enjoyed by single permit holders one can doubt whether long term residents always enjoy such a 'more privileged status': Article 12(4) of the Single Permit Directive, which provides for the right of equal treatment with regard to payment of pensions acquired in the EU if they move to a third country, is not provided in the Long-Term Residents Directive 2003/109/EC. 89

10. Penons whose removal has been suspended (Article 3(2)(j)) The Commission's proposal contained a similar exclusion, taking over the wording of 23 Article 3(i) of the Blue Card Directive 2009/50/EC. The term 'expulsion' was nonetheless substituted by the notion of 'removal', according to a parliamentary amendment, which is more in line with the language of the Return Directive 2008/115/EC. In any case, since no explicit mention to this Directive has been included, it can be understood that this exception covers persons who have been ordered removed in accordance to the Return Directive 2008/115/EC and in accordance to national law. According to the Return Directive 2008/115/EC, 'removal' means the enforcement of 24 the obligation to return, namely the physical transportation out of the Member State.90 In light of this definition and having in mind the differentiation between 'removal' and the return procedure, it could be posited that this exception does not cover those who have been subjects of a return procedure that has subsequently been suspended, but only those who have indeed been object to a removal procedure in the sense of Article 8 of the Return i;>irective 2008/ l l 5/EC. On the other hand, Article 9 of the Return Directive 2008/ 115/EC refers to situations of 'postponement of removal', such as the application of the non-refoulement principle, or situations of temporary suspension during the revision process of return related decisions. It is questionable whether the notion of 'postponement' is to be equated with the notion of suspension. Other situations of suspension of removal that could be considered here are those related to technical reasons, such as lack of documents or lack of cooperation of the third State of origin. "" Artide"l(c). 119 Verschuerm, Employment and Social Security Rights, p. 108. 90

Article 2(5).

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11. Self-employed workers (Article 3(2)(k)) 25

The exclusion of self-employed workers was not initially foreseen by the ~mmission's Proposal. The need to clarify the exclusion of independent workers was debated in the framework of the definition of the notion of 'third-country workers' contained in Article 2(b) of the Directive. In this regard, several Member States insisted in clarifying that this notion only applies 'in the context of a paid relationship'. 91 Moreover, it was suggested by some Member States and by the Council Legal Service, that the exclusion of self-employed persons should be explicitly stated in Article 3, which addresses the scope of application of the Directive.92 12. Seafarers (Article 3(2)(1))

26

This exclusion, which was not contemplated by the Commission's Proposal, was added as the result of the discussions during the meeting of JHA Counsellors on March 2009, 93 when it was considered including seaman and airline staff among the categories of third-country nationals to whom the Directive will not apply. The final text of the Directive only mentions those who have applied or have been admitted as seafarers to work on board of a ship registered in or sailing under the flag of a Member State.

IV. Exclusions from Chapter II of the Directive 27

Chapter II of the Directive is destined to establish the rules governing the single application procedure and the single permit. It therefore contains procedural rules and guarantees as well as the rights attached to the single permit as a document, which allows for certain movement rights. Member States debated general exclusions from the Directive, concerning third-country nationals authorised to work for short periods and visa holders. In the course of the negotiations it was however felt that these workers should not be denied the protection of the equal treatment principle enshrined in Chapter Ill of the Directive. Therefore, two specific exclusions that concern solely the provisions of Chapter II of the Directive were introduced. The Report on the implementation of the Single Permit Directive shows that this possibility of exclusion has been broadly used by the Member States.94

1. Possibility to exclude those authorised to work for not more than six months (Article 3(3)) 28

The issue of the categories of third-country nationals to be excluded on the basis of the temporary nature of their permit or of their work raised many concerns among the delegations in the Council. In this regard, the Commission expressed the view that a standstill clause could be considered.95 The possibility of an optional exclusion clause was broadly debated, in the Council, and the Commission systematically refused to exclude certain groups of third-country workers on the basis of the length • 1 Council • 2 Council

doc. 6212/08 of 5 March 2008. doc. 144668/08 of 29 October 2008. 91 Council doc. 7721/09 of 18 March 2009. "'Commission Report on the Single Permit Directive, indicating that 18 Member States have used this option. ~ Council doc. 14668/08 of 29 October 2008.

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of their stay from the equal treatment principle.% Even though during the course of the negotiations, it was considered to include in this voluntary derogation from Chapter II those who have been admitted for the purpose of study,9; this proposal was not finally retained in the text of the Directive. 911 Therefore, third-country nationals admitted as students may apply for the single permit under the single permit procedure. In line with the traditional case law of the ECJ, Member States can only invoke this 28a provision if they clearly demonstrate their intention to exercise the option provided for in this provision. 99

2. Exclusion of visa holders (Article 3(4)) During the negotiations, it was considered that the holders of a visa should be 29 excluded from Chapter II having in mind the definition of single permit and the reference to Regulation 1030/2002. 100 The explicit mention to the exclusion of this group of third-country nationals from the provisions of Chapter II of the Directive was introduced following the meeting of the JHA Counsellors on December 2008. 101 In this regard, also recital 11 was introduced to clarify that the provisions of the Directive do not concern uniform or long-stay visas.

CHAPTER II SINGLE APPLICATION PROCEDURE AND SINGLE PERMIT Article 4 Single application procedure I. An application to issue, amend or renew a single permit shall be submitted by way of a single application procedure. Member States shall determine whether applications for a single permit are to be made by the third-country national or by the third-country national's employer. Member States may also decide to allow an application from either of the two. If the application is to be submitted by the thirdcountry national, Member States shall allow the application to be introduced from a third country or, if provided for by national law, in the territory of the Member State in which the third-country national is legally present. 2. Member States shall examine an application made under paragraph I and shall adopt a decision to issue, amend or renew the single permit if the applicant fulfils the requirements specified by Union or national law. A decision to issue, amend or renew the single permit shall constitute a single administrative act combining a residence permit and a work permit. 3. The single application procedure shall be without prejudice to the visa procedure which may be required for initial entry.

4. Member States shall issue a single permit, where the conditions provided for are met, to third-country nationals who apply for admission and to third-country .., Council doc. 15113/08 of 6 November 2008. "Council doc. 16673/08 of 19 December 2009 . .. It was eliminated as part of a compromise solution proposed by the Presidency. Council doc. 8145/ 09 of 30 March 2009. 99 Sec, by analogy, ECJ, Martinez Silva, C-449/16, EU:C:2017:485, para 29. 100 Council doc. 15764/08 of 17 November 2008. 101 Council doc. 16673/08 of 19 December 2009.

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nationals already admitted who apply to renew or modify their residence permit after the entry into force of the national implementing provisions. Content

I. General remarks and drafting history .......................................·-············-

mn. 1

11. Submission of applications (Anide 4( l)) .....•................. ·-························ Ill. Decision and obligation to issue a single permit (Article 4(2) and

3

(4))......................................................................................................................

5

IV. Application of national visa regimes (Article 4(3)) ................................ V. Derogation clauses..........................................................................................

7 8

I. General remarks and drafting history As the Commission highlighted in her proposal, this is the central provision that establishes the general obligation to examine the application to work and reside in a Member State through a single procedure and, if granted, to issue a single permit which enables the applicant both to stay and work. 2 The proposal of the Commission only referred to national law in paragraph 2, with regard to the person who should submit the application. During the negotiations in the Cowtcil, other different possibilities were expressly introduced, with the Parliament also advocating for an amendment in this sense. 102 Paragraphs 3 and 4 were introduced as well during the negotiations. With regard to paragraph 3, several Member States expressed concerns in the sense that persons should comply with visa requirements and stated that recital 4 was not sufficiently clear in this sense. 10J The Commission did not oppose this insertion, in line with the Blue Card Directive 2009/50/EC. I

II. Submission of applications (Article 4(1)) 3

Member States are able to determine who should submit the applications for a single permit: the employer, the third-cowttry national, or any of the two. Recital 10 clarifies that this provision is without prejudice to any arrangements requiring both to be involved in the procedure (e.g. by requiring the employer to apply for an employment market test). 104 4 At the instances of the European Parliament, 105 it is provided that, if Member States choose that the third-country national is the one to submit the application, they are obliged to allow the application to be introduced from a third-cowttry. The reference in recital 10 to the 'cases where the third-country national is not allowed to make an application from a third country' has therefore to be understood as referring to the situations in which the Member State has decided to allow applications from the employer only. On the contrary, only in the case that national law so provides will Member States also be obliged to allow applications lodged in other Member States. The reference to national law here constitutes a restrictive element and a missed opportunity

10 2 103

CoW1ci1 Council 104 See also 105 Council

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to facilitate movement of third-country nationals among Member States, following the trend of other EU migration directives. 106

III. Decision and obligation to issue a single permit (Article 4(2) and (4)) Member States are obliged, according to Article 4(2), to examine applications and to S adopt a decision on the issue, amendment or renewal of the single permit This obligation is however limited by Article 8(3), which allows Member States to reject applications as inadmissible, and therefore, not to process them, on the grounds of volwne of admission of third-country nationals coming for employment. If the applicant fulfils the requirements - laid down by national law or by the relevant EU instrument- the directive obliges Member States, according to Article 4(4) to issue, amend or renew the single permit, therefore limiting the discretional powers of national authorities. 107 With regard to the third-country nationals who have already been admitted, Member States are obliged to issue them with a single permit when they renew or modify their residence permit after the entry into force of the national provisions implementing this Directive. In any case, the conditions and criteria for issuing. amending or renewing single permits are not regulated by this Directive, and will depend on the applicable EU or national law. Nonetheless, recital 17 states that these conditions and criteria should be objective, should be laid down in national law, and should respect the principle of Union preference, particularly, as it is laid down by the Acts of Accession of 2003 and 2005. It has to be noted that, whereas the obligation of respecting the principle of Union 6 preference stems from the Acts of Accession and has therefore a strong legal backing. this is not the case of the obligation to lay down objective conditions and criteria through national law, which constitutes a material limitation to the discretion of Member States. It would have therefore been preferable to have this statement reflected in an article rather than in a recital.

IV. Application of national visa regimes (Article 4(3)) The visa regimes of the Member States which may be applicable to different 7 categories of third-country nationals are not affected by this provision and can therefore remain in place, according to Article 4(3). This means that, notwithstanding the single procedure, third-country nationals may still be subject to visa procedures for their first entry. 108 In this regard, it recital 4 clarifies that the application of national visa regimes should not be used to hinder the effet utile of the directive: visas should therefore be issued in a timely manner.

V. Derogation clauses In accordance to Article 3(4), this provision does not apply to those allowed to work on 8 the basis of a visa. According to Article 3(3) of the Directive, Member States are allowed As the Long-Tenn Residents Directive 2003/109/EC and the Blue Card Directive 2009/50/EC. For the interpretation of the ECJ with regard of Schengen visas and students permits, respectively, see ECJ, Kou.shkaki, C-84/12, EU:C:2013:862 and ECJ, Ben Al.aya, C-491/13, EU:C:2014:2187. 1111 Peers/Guild/Acosta Arcaraw/Groenendijk/Moreno-Lu, EU Immigration and Asylum Law, p. 225. 1""

101

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Art.

s

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to decide not to apply this article to third-country nationals who have been authorised to work for a period not exceeding six months or who have been admitted for study purposes. These derogation clauses are applicable to Articles 4 to 11 of the Directive.

Articles Competent authority I. Member States shall designate the authority competent to receive the application and lo issue the single permit. 2. The competent authority shall adopt a decision on the complete application as soon as possible and in any event within four months of the date on which the application was lodged. The time limit referred to in the fint subparagraph may be extended in exceptional circumstances, linked to the complexity of the examination of the application. Where no decision is taken within the time limit provided for in this paragraph, any consequences shall be determined by national law. 3. The competent authority shall notify the decision to the applicant in writing in accordance with the notification procedures laid down in the relevant national law. 4. If the information or documents in support of the application are incomplete according lo the criteria specified in national law, the competent authority shall notify the applicant in writing of the additional information or documents required, setting a reasonable deadline to provide them. The time limit referred to in paragraph 2 shall be suspended until the competent authority or other relevant authorities have received the additional information required. If the additional information or documents is not provided within the deadline set, the competent authority may reject the application. Content mn.

I. 11. Ill. JV. V.

Drafting history ............................................................................................. .. The competent authority (Article 5( I))..................................................... Deadline for examining applications (Article 5(2)) ................................ Procedural guarantees (Article 5(3) and (4)) ........................................... Derogation clauses..........................................................................................

2 3 5 7

I. Drafting history l

Article 5 did not suffer many modifications during the negotiations. The most relevant modifications consist on the extension of the time limit for processing applications (from 3 to 4 months), and on the addition of a third paragraph in paragraph l, in order to clarify that the consequences of administrative silence are determined by national law. 109

II. The competent authority (Article 5(1)) 2

The wording of article 5 of the Directive insists on the fact that Member States have to designate a competent authority (in the singular). This fact has to be understood '"" Council doc. 1565/10 of 12 November 2010.

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precisely in line with the purpose of simplification that is central to the Directive. Nonetheless, the role of the different authorities in accordance with national law seems to be safeguarded inasmuch as it does not interfere with the single procedure created by the Directive. This interpretation is supported by the travaux prtparatoires 110 and by recital 12, which clarifies that the designation of the competent authority under the Directive does not affect the role or responsibilities of other authorities, (or even of social partners) with regard to the examination of and the decision on the application. 111

III. Deadline for examining applications (Article 5(2)) Competent authorities are obliged to adopt a decision as soon as possible. That means 3 that the deadline of four months is a maximum limit and that decisions should be in any case be taken before if it is possible. 112 The exceptional circumstances that may be considered in order to extend this period have to be interpreted strictly and have to be exclusively linked to the complexity of the application at hand. That is to say that other circumstances such as the workload or administrative difficulties cannot be adduced in order to extend the time limits. Granted, recital 5 refers to the fact that the procedure should be 'effective and manageable, taking account of the normal workload of the Member States' administrations'. However, this cannot be understood in any way as an authorisation to take into account the administrative workload in order to surpass the limits established in the framework of Article 5(2), since this provision is clear in limiting this possibility to circumstances linked to the complexity of a given application. On another note, recital 13 clarifies that this deadline does include neither the time required for the recognition of professional qualifications nor the time required for issuing a visa. The fact that Member States are to determine the consequences of administrative 4 silence should not led to the practice of leaving applications unexamined beyond the four months' time limit In any case, the principle of good administration is applicable in this regard. 113

IV. Procedural guarantees (Article 5(3) and (4)) During the negotiations of this article, additional guarantees have been added in 5 paragraphs 3 and 4. In the first place, the notification has to be in writing. In the second place, where the documentation submitted is incomplete, applicants should be given a reasonable deadline to provide the missing documents. Due to the undetermined character of what a 'reasonable deadline' may constitute, this provision has to be 110 Indeed, some Member States insisted in changing this expression in the plural, to which the Commission responded drawing attention to the explanatory memorandum concerning this provision in the proposal. which stated that the designation of the competent authority was without prejudice to the roles of other authorities and that it should not prevent Member States from appointing other authorities where the third-country national or the employer could lodge the application (e.g. consular offices) and where the permit could be delivered. Council doc. 10807/08 of 2 July 2008. 111 For the implications of this provision in the institutional autonomy of the Member States. see De Lange, The Single Permit Directive, p. 9. 112 Council doc. 10807/08 of 2 July 2008 shows the different approaches of the Member States, some of them entering reservations and some others stating that three months was already a too long period. 113 Article 41 of the Charter of fundamental rights i, not applicable to the Member States but that is not the case of the general principle of good administration and of the rights of the defence (ECJ, YS t.a., C-141/12, EU:C:2014:2081 and ECJ, Mukarubega, C-166/13, EU:C:2014:2336).

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interpreted according to the general principle of good administration and to the need to preserve the effet utile of the Directive. 6 Finally, even if it could be considered as a necessary consequence, this provision clarifies, at the request of some Member States, 114 that if the additional information or documents are not provided within the deadline, the application could be rejected. 1• 5

V. Derogation clauses 7

See above Article 4 MN 8.

Artide6

Single permit I. Member States shall issue a single permit using the uniform format as laid down in Regulation (EC) No 1030/2002 and shall indicate the information relating to the permission to work in accordanc.e with point (a) 7.S-9 of the Anna thereto. Member States may indicate additional information related to the employment relationship of the third-country national (such as the name and address of the employer, plac.e of work, type of work, working hours, remuneration) in paper format, or store such data in electronic format as referred to in Article 4 of Regulation (EC) No 1030/2002 and in point (a)I6 of the Anna thereto. 2. When issuing the single permit Member States shall not issue additional permits as proof of authorisation to access the labour market. Content

mo. I. Uniform format. Additional documents and information (Article 6

(1))......................................................................................................................

I

II. Prohibition of additional permits (Article 6(2)) ...................................... Ill. Derogation clauses..........................................................................................

5

6

I. Uniform format. Additional documents and information (Article 6(1)) This article contains a reference to Regulation 1030/2002, which contains the formal specifications to issue residence permits. In accordance to point (a) 7.5-9 of the Annex to this regulation, Member States are allowed to enter details and indications 'for national use necessary in the light of their national provisions on third-country nationals, including indications relating to any permission to work'. Whereas the introduction of the information regarding the authorization to work is a possibility in Regulation 1030/ 2002, this Directive turns the inclusion of this information in the residence permit into an obligation. In this regard, recital 14, already present in the original text of the Commission Proposal, according to which Member States should indicate, for the purpose of better control of migration, the information relating to the permission to work, irrespective of the type of permit or of the initial purpose of admission. 114 11 '

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In light of the general prohibition to issue additional permits, the possibility to 2 include additional information was of interest for several Member States during the negotiations of the Directive, who thought that it would be useful to add additional information in the chip included in the permit. 116 In this connexion, the Commission expressed the view that separate documents could be allowed as long as they are of a declarative nature, and therefore, do not qualify as a permit. 117 As a result of these debates, a second paragraph was included in Article 6( l) which 3 provides for two possibilities: a) to issue an additional document in paper format with additional information - the pieces of information referred to in this provision being exemplificative- and b) to store such data in electronic format. Indeed, this last option refers to point a) 16 of Regulation 1030/2002, which establishes that Member States are allowed to store data in the radio frequency chip that serves as a storage medium of the residence permit, or in a separate contact chip for national use. In any case, it is worth noticing that this provision explicitly refers to article 4 of Regulation 1030/2002, which explicitly establishes that no information in machine-readable form can be included on the resident permit unless provided for in this Regulation or unless it is mentioned in the related travel document according with the national legislation of the issuing State. Recital 16 further clarifies the possibilities for Member States to issue additional 4 documents. The purpose of these documents should be to give more precise information on the employment relationship, taking into account that the residence permit does not leave enough space for this purpose. Additionally, this recital makes explicit that one of the functions of this additional information could be to prevent the exploitation of third-country nationals and combat illegal employment. In any case, the issuance of additional documentation is purely informative, it should not compromise the concept of the single permit and it should not serve as a substitute for the permit itself.

II. Prohibition of additional permits (Article 6(2)) According to Article 5(2), Member States are not allowed to issue any kind of S additional permit with the aim to serve as a proof of authorisation to access to the labour market.

III. Derogation clauses See above Article 4 MN 8.

6

Article 7 Residence permits issued for purposes other than work I. When issuing residence permits in accordance with Regulation (EC) No 1030/ 2002 Member States shall indicate the information relating to the permission to work irrespective of the type of the permit. Member States may indicate additional information related to the employment relationship of the third-country national (such as the name and address of the Council doc. 10807/08 of 2 July 2008. Council doc. 10807/08 of 2 July 2008. See, on the negotiating positions of the different Member States, Brinkmann, Opinion of Germany, p. 351, 358-359. 116 11 ;

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Art. 1

employer, place of work, type of work, working hours, remuneration) in paper format, or store such data in electronic format as referred to in Article 4 of Regulation (EC) No 1030/2002 and point (a)l6 of the Annex thereto. 2. When issuing residence permits in accordance with Regulation (EC) No 1030/ 2002, Member States shall not issue additional permits as proof of authorisation to access the labour market. Content mn. I. Obligation to include information about authorisation to work (Article 7( I)) ................................................................................................... . II. Additional information and prohibition of additional permits (Article 7( I) and (2) )...................................................................................... Ill. Derogation clauses..........................................................................................

3 4

I. Obligation to include information about authorisation to work (Article 7(1)) The obligation provided for in Article 6 to include in the single permit the information regarding the authorization to work is extended by this article to all the permits issued for purposes other than work. According to recital 14 and following the explanations given in the Proposal of the Commission, this obligation also applies to any residence permit issued by the Member State, irrespective of the type of permit or residence titled, when the third-country national in question has been given access to the labour market. The objective of this provision is precisely the same as in Article 6: to enhance the possibilities of national authorities to control the status of third country nationals. In this connection, recital 15 underlines that the provisions of the Directive with regard to residence permits for purposes other than work only apply to their format, and do not affect Union or national rules governing the procedures for issuing such permits. 2 The extension of the obligation to include the information about the authorisation to work in all permits whose holders are indeed authorised for exercising paid work entails an important element of uniformization and legal certainty for authorities, employers and third-country nationals. Since the directive does not apply to self-employed workers, this obligation is not applicable to their residence permits.

II. Additional information and prohibition of additional permits (Article 7(1) and (2)) 3

See above Article 6 MN 2-5.

III. Derogation clauses 4

See above Article 4 MN 8.

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Article 8 Procedural guarantees I. Reasons shall be given in the written notification of a decision rejecting an application to issue, amend or renew a single permit, or a decision withdrawing a single permit on the basis of criteria provided for by Union or national law. 2. A decision rejecting the application to issue. amend or renew or withdnwing a single permit shall be open to legal challenge in the Member State concerned, in accordance with national law. The written notification referred to in paragraph l shall specify the court or administntive authority where the penon concerned may lodge an appeal and the time limit therefor. 3. An application may be considered as inadmissible on the grounds of volume of admission of third-country nationals coming for employment and, on that basis, need not lo be processed. Content

I. General remarks and drafting history........................................................ II. Procedural guarantees.................................................................................... I. Obligation to state reasons ( Article 8(1)) .............................................. 2. Possibility of legal challenge (Article 8(2)) ........................................... 111. Volumes of admission (Article 8(3)).......................................................... IV. Derogation clauses..........................................................................................

mo. I 3 3 5 6 8

I. General remarks and drafting history Article lO lays down a number of procedural guarantees that apply with regard to any decision rejecting an application to issue, amend or renew a single permit, or to any decision withdrawing it. It has to be noticed that other important elements that constitute procedural safeguards are to be found in other provisions of this Directive, such as, prominently, Article 4. The first two paragraphs follow the Commissions' Proposal, despite the initial 2 reluctance of some Member States whose national legislation did not previously require any statement of grounds for refusal of permits. 118 The most relevant change in this regard is the possibility to mount a legal challenge before courts (as provided in the Proposal) or administrative authorities. Article 8(3), which was not provided for in the Commission's Proposal, was added during the negotiations in the Council.

II. Procedural guarantees l. Obligation to stale reasons (Article 8(1)) The first guarantee provided for by Article 8( l) is the obligation to state grounds for 3 rejection of any application to issue, amend or renew a single permit as well as for decisions withdrawing it. This provision explicitly contemplates that the notification has to be in ~ting. 11

•

Brinkmann, Opinion of Germany, p. 351, 359.

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Art.

s

Singk Permit Directive 2011198/EU

The criteria to be followed when providing such reasons are not determined by this Directive, since it refers to the applicable instruments of Union or national law. However, recital 17 is very illustrative in this sense, highlighting that the conditions and criteria on the basis of which an application to issue, amend or renew a single permit can be rejected, and even the conditions of withdrawal of such permit, should be objective and should be laid down in national law (that is to be understood as referring to the applicable national law as well as to the national regulations which transpose the applicable EU Directives). Even if only contained in a recital, this statement constitutes an important interpretative element. Additionally, among the objective reasons that should be laid down in national law according to recital 17, is the 'obligation to respect the principle of Union preference' contained in the Acts of Accession of 2003 and 2005.

2. Possibility of legal challenge (Article 8(2)) 5

Negative decisions concerning the issuance, renewal, amendment or withdrawal of single permits have to be opened to legal challenge. Differently from the Commission's Proposal, which only contemplated the possibility of legal challenges before courts, and at the request of some Member States, 119 the Directive provides for the possibility of challenging these decisions before courts or before the competent administrative authorities. Importantly, this possibility has to be explicitly indicated in the written notification, specifying the court or administrative authority where such challenges may be lodged, and the time limit therefor. The fact that the nature of the appeal (judicial or administrative) seems to be left to the discretion of the Member States, as it is the case with other EU migration instruments, must however be relativized. Article 47 of the Charter requires that any person whose rights and freedoms guaranteed by EU law are violated should have the right to an effective remedy before a tribunal in compliance with the conditions laid down in that article. Moreover, the second paragraph of Article 47 of the Charter provides that everyone is entitled to a hearing by an independent and impartial tribunal. The ECJ has clarified that 'compliance with that right assumes that a decision of an administrative authority that does not itself satisfy the conditions of independence and impartiality must be subject to subsequent control by a judicial body that must, in particular, have jurisdiction to consider all the relevant issues'.1 20

III. Volumes of admission (Article 8(3)) 6

Even though this provision is listed among the 'procedural guarantees' it is in fact a derogation from the general obligation established in article 4(2) of the Single Permit Directive, according which Member States shall examine applications and to adopt a decision on the issue, amendment or renewal of the single permit. Indeed, Article 8(3) allows Member States to reject applications as inadmissible, and therefore, not to process them, on the grounds of volume of admission of third-country nationals coming for employment. This third paragraph, which was added during the negotiations in the Council, aims at reflecting in the procedural field the limitations of the Directive, which do not affect the competences of the Member States to regulate access to their labour markets (see Article l, and recital 3 of this Directive). It also reflects the wording of Article 79(5) TFEU, which preserves the right of Member States to 11 9

,zo

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Council doc. 10807/08 of 2 July 2008. ECJ, El Hassani, C-403/16, EU:C:2017:960, paras 38 and 39.

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Chp. 14

determine the volumes of admission of third-country nationals coming from third countries to their territory in order to seek work. The uncertainty that surrounds the interpretation of the TFEU with regard to the notion 7 of 'volumes of admission' 121 is therefore also projected into this provision. One plausible interpretation is that, according to Article 8(3), when Member State apply a system based on admission volumes or quotas, and these volumes have already been attained for the period of reference, Member States can reject the application as inadmissible. This entails that the substance of the application does not need to be examined.

IV. Derogation clauses See above Article 4 MN 8.

8

Article 9 Access to information Member States shall provide, upon request, adequate information to the thirdcountry national and the future employer on the documents required to make a complete application. Content I. General remarks and drafting history........................................................ II. Derogation clauses..........................................................................................

mn. I 3

I. General remarks and drafting history This provision establishes the obligation of Member States to provide information l regarding the documents required in order to make a complete application. One important modification was introduced in Article 9 during the course of negotiations in the Council: information shall be provided upon request, whereas in the Commission's Proposal this obligation was drafted in the more general terms to 'take the necessary measures to inform'. The resulting provision enhances, on the one hand, the level of the engagement of the States, since it does not contemplate an obligation of behaviour but an obligation of result. On the other hand, it only obliges Member States to provide such information upon request, limiting therefore the obligation of States to publicise the relevant information. This provision only relates to the specific information on the documents for the 2 application. It is to be noted that Article l I(d) contains a specific right of single permit holders to receive information about their rights linked to this permit. See below Article 11 MN 9.

II. Derogation clauses See above Article 4 MN 8. 121

3

See Thym, Legal Framework for EU Immigration Policy, MN 27. Iglesias Sanchez

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Article 10

Fees Member States may require applicants to pay fees, where appropriate, for handling applications in accordance with this Directive. The level of such fees shall be proportionate and may be baaed on the senices actually provided for the processing of applications and the issuance of permits. Content

mn .. I. Proportionate fees........................................................................................... II. Derogation clauses..........................................................................................

I 3

I. Proportionate fees The possibility to apply fees is explicitly provided for in Article 10. This possibility has been validated by the Court of Justice in the framework of other legal migration directives, such as the Long-Term Residents' Directive 2003/109/EC, even in absence of such explicit provision. In any case, Article 10 in malting explicit reference to the constrains imposed by the principle of proportionality reflects the case law of the Court of Justice interpreting the Long-Term Residents' Directive, 122 according to which the level of the charges imposed must not have the object or the effect of creating obstacles to the objectives and spirit of the directive. 123 2 Besides the criterion of proportionality, this provision offers the Member States the possibility to take into account, in order to fix the level of fees, the services actually provided for the processing of applications and the issuance of permits. It goes without saying that this possibility is also constrained by the proportionality principle.

II. Derogation clauses 3

See above Article 4 MN 8.

Article 11 Rights on the basis of the single permit Where a single permit bas been issued in accordance with national law, it shall authorise, dnring its period of validity, its holder at least to: (a) enter and reside in the territory of the Member State issuing the single permit, provided that the bolder meets all admission requirements in accordance with national law; 122 ECJ, Commusion v. the Netherlands, C-508/10, EU:C:2012:243; ECJ, CGIL ,md INCA, C-309/14, EV: C:2015:523. Sec also, with regard to the costs of the eum of civic integration for family members under the Family Reunification Directive 2003/86, ECJ, Kand A, C-153/14, EU:C:2015:453. 123 It has to be noted that the object and system put in place by the Single Pennit Directive differs from that of the Long-Term Residents Directive, most of all, since the former does not grant any residence rights. The discretion of Member State in light of these differences could arguably be considered as broader.

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(b) have free access to the entire territory of the Member State issuing the single permit within the limits provided for by naUonal law; (c) eurcise the specific employment activity authorised under the single permit in accordance with national law;

(d) be informed about the holder's own rights linked to the permit conferred by this Directive and/or by national law. C.ontent mn. I. General remarks and drafting history·-·······················.............................. I II. Rights attached to the Single Permit.......................................................... 4 I. Right of entry and residence.................................................................... 4 2. Right of internal free movement (Article I !(a) and (b)) .................. 6 3. Right to exercise of employment activities (Article l l(c))................ 8 4. Right to information (Article l l(d)) ...................................................... 9 III. Derogation clauses .................................. ·-····················································· 11

I. General remarks and drafting history This article contains the rights that are attached to the single permit, which is issued I in accordance to national provisions. The final wording of the article differs from the Commission's Proposal in two points. First, it does not contemplate the right of reentry. Second, it does not contemplate the right of passage through other Member States in order to exercise the right of entry into the issuing Member State.12 4 The fact that these rights are attached to the single permit and enounced in 2 Chapter II (and not in Chapter III) bears the consequence that they are only applicable to single permit holders. This is a minimal provision, in the sense that it lists the rights the single permit 3 holder is 'at least' entitled to.

II. Rights attached to the Single Permit I. Right of entry and residence

In the first place, there is a right of entry and residence into the territory of the 4 issuing Member State. Even if the right of 're-entry' was deleted from the Commission Proposal, it could be argued that this right is implicit in the single permit, as any attempt at having access to the territory of the issuing Member State can be qualified as a new 'entry'. As the Commission stated in her proposal, these rights are particularly important with regard to those Member States, which do not apply the Schengen acquis in full. Even though the Directive does not contain any provision with regard to access to the 5 territory of other Member States of the Union that apply the Schengen acquis in full, recital 18 - already to be found in the Commission's Proposal, recalls that in accordance to the Schengen Borders Code Regulation (EC) No 562/2006 single permit holders who are in possession of a valid travel document are allowed to enter into and move freely 124 This possibility was deleted during negotiations in the Council due to the suggestion of some delegations that several Member States do not yet apply the Schengen acquis in full and that others have opted out. Council doc. 10807/08 of 2 July 2008.

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Single Permit Directive 2011/98/EU

Art. 11

within the territory of the Member States for a period up to three months in any sixmonth period.

2. Right of internal free movement (Article l l(a) and (b)) The right of free movement within the limits of the territory of the issuing State is expressly provided for in Article l l, with the limitations contained in national law. The Proposal of the Commission was stricter in this regard, allowing only limitations based on reasons of security. This limitation was deleted at the request of some Member States, 125 with the result that the possibility to establish limitations through national law might appear broader. 7 In any case, it has to be noted that the right to internal free movement con~titutes a human right. According to Article 2 of Protocol No 4 to the European Convention on Human rights '[e]veryone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence'. The only restrictions that can be applied in this regard have to be in accordance with law and necessary in a democratic society in the interests of national security or public safety, for the maintenance of ordre public, for the prevention of crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

6

3. Right to exercise of employment activities (Article ll(c)) 8

According to Article 11, single permit holders are entitled to the exercise of the 'specific employment activity' authorised under the single permit, in accordance to national law. Indeed, access to the labour market is not listed amongst the areas to which, in accordance to Article 12, the principle of equal treatment applies. This implies that the single permit would be issue with limitations with regard to access to the employment market, for the purposes of exercising a specific economic activity. However, this is a point that is made dependent upon national law. Nothing prevents a Member State from providing general access to economic activities. The conditions and limits of this right are provided for in national legislation and may be reflected in the additional documents and information provided for in Article 6. At the request of some Member States, a reference to national law was added in this provision. 126

4. Right to information (Article ll(d)) This provision contains a right to information, which is independent from the obligation of give access to information concerning the documents for the application provided for in Article 9. Indeed, the right contained in Article l l(d) constitutes a personal right of the single permit holder and encompasses the rights linked to the permit in accordance to the Directive and to national law. Since this provision refers to the rights 'conferred by this Directive', the right to equal treatment should also be comprised. 10 Differently from Article 9, single permit holders are entitled to a right to be informed which is not conditional upon their active request of information. This entails a wider obligation on the part of Member States to make sure that single permit holders are aware of the rights attached to their status. 9

m Council doc. 10807/08 of 2 July 2008. Brinkmann, Opinion of Germany, p. 351, 359-360.

12•

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III. Derogation clauses See above Article 4 MN 8.

11

CHAPTER III RIGHT TO EQUAL TREATMENT Article 12 Right to equal treatment I. Third-country workers as referred lo in points (b) and (c) of Article 3(1) shall enjoy equal treatment with nationals of the Member Slate where they reside with regard to: (a) working conditions, including pay and dismissal as well as health and safety at the workplace; (b) freedom of association and affiliation and membership of an organisation representing workers or employers or of any organisation whose members are engaged in a specific occupation, including the benefits conferred by such organisations, without prejudice to the national provisions on public policy and public security; (c) education and vocational training; (d) recognition of diplomas, certificates and other professional qualifications in accordance with the relevant national procedures; (e) branches of social security, as defined in Regulation (EC) No 883/2004; (f) tax benefits, in so far as the worker is deemed to be resident for tax purposes in the Member State concerned; (g) access to goods and services and the supply of goods and services made available lo the public including procedures for obtaining housing as provided by national law, without prejudice to the freedom of contract in accordance with Union and national law; (h) advice services afforded by employment offices. 2. Member States may restrict equal treatment: (a) under point (c) of paragraph 1 by: (i) limiting its application to those third-country workers who are in employment or who have been employed and who are registered as unemployed; (ii) excluding those third-country workers who have been admitted to their territory in conformity with Directive 2004/114/EC; (iii). excluding study and maintenance grants and loans or other grants and loans; (iv) laying down specific prerequisites including language proficiency and the payment of tuition fees, in accordance with national law, with respect to access to university and post-secondary education and to vocational training which is not directly linked to the specific employment activity; (b) by limiting the rights conferred on third-country workers under point (e) of paragraph 1, but shall not restrict such rights for third-country workers who are in employment or who have been employed for a minimum period of six months and who are registered as unemployed. Iglesias Sanchez

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Art. 12

Single Permit Directive 2011/98/EU

In addition, Member States may decide that point (e) of paragraph 1 with regard to family benefits shall not apply to third-country nationals who have been authorised to work in the territory of a Member State for a period not exceeding six months, to third-country nationals who have been admitted for the purpose of study, or to third-country nationals who are allowed to work on the basis of a visa.

(c) under point (0 of paragraph 1 with respect to tax benefits by limiting its application to cases where the registered or usual pJace of residence of the family members of the third-country worker for whom he/she claims benefits, lies in the territory of the Member State concerned. (d) under point (g) of paragraph 1 by: (i) limiting its application to those third-country workers who are in· employment; (ii) restricting acceu to housing; 3. The right to equal treatment laid down in paragraph l shall be without prejudice to the right of the Member State to withdraw or to refuse to renew the residence permit issued under this Directive, the residence permit issued for purposes other than work. or any other authorisation to work in a Member State. 4. Third-country workers moving to a third country, or their survivors who reside in a third country and who derive rights from those workers, shall receive, in relation to old age, invalidity and death, statutory pensions based on those workers' previous employment and acquired in accordance with the legislation referred to in Article 3 of Regulation (EC) No 883/2004, under the same conditions and at the same rates as the nationals of the Member States concerned when they move to a third country. Content DID,

I. General remarks.............................................................................................. H. Drafting history............................................................................................... Ill. Personal scope of application....................................................................... IV. Areas subject to unrestricted equal treatment.......................................... I. Working conditions (Article 12(l)(a)) .................................................. 2. Freedom of association and affiliation (Article 12(1)(b)) ................. 3. Recognition of diplomas (Article 12(l)(d)) .......................................... 4. Advice services of employment offices.................................................. V. Areas in which equal treatment can be limited or derogated from.... I. Education and vocational training (Article 12(1 )(c) and Article 12 (2)(a)) ............................................................................................................ 2. Social security (Article 12(1 )(e)) and Article 12(2)(b)) ..................... 3. Tax benefits (Article 12(1)(1) and Article 12(2)(c)) ............................ 4. Access to goods and services (Article 12(1)(h) and Article 12(2)

1

7 11 14 16 18 20 22 24 25 29 34

(d)) ................................................................................................................. 36

VI. Right of States to withdraw or refuse renewal of permits (Article 12 (3)) ...................................................................................................................... 40 VII. Export of pensions (Article 12(4)) .............................................................. 41

I. General remarks Article 12, which is the only Article of Chapter III of the Directive, is devoted to the principle of equal treatment. This provision is the key provision that serves to attain the objective declared in Article I (l)(b) of laying down a common set of rights for all third946

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country workers legally residing in the Member States (see above Article l MN 3 and 14-16). The crucial role of this provision for the definition of a common set of rights has been confirmed by other EU law acts in the field of legal migration, such as the Students and Researchers Directive (EU) 2016/801, where the equal treatment status to be enjoyed by researchers, as well as by trainees, volunteers and au pairs, when they are considered to be in an employment relationship in the host Member State, is determined by reference to Article 12 of the Single Permit Directive.1 27 The principle of equal treatment covers the protection against both direct and 2 indirect discrimination according to the case law of the Court of Justice, as confirmed by the travaux preparatoires. 128 The application of the equal treatment principle is, nonetheless, non-comprehensive: 3 it is limited to the areas explicitly listed in Article 12. Particularly, several relevant areas are not comprised in this provision: access to the labour market and access to social assistance. 129 As a result, the level of protection in terms of rights falls, generally and with respect to those areas, below the more integrated category of long-term residents, and the specific privileged group of Blue-card holders. 130 However, this is not always the case, as the Long Term Residents Directive 2003/109/EC does not include a provision similar to Article 12( 4) of the Single Permit Directive with regard to the exportability of pensions to third countries. The spirit of this provision is well reflected in recital 19, which makes reference to the 4 previous situation in which, in the absence of horizontal Union legislation, the rights of third country workers varied from one Member State to another. The purpose of this provision is therefore to develop a 'coherent immigration policy' and to narrow the rights gap between citizens of the Union and third-country workers. This provision, according to recital 19, is precisely destined to establish a minimum level playing field within the Union, to recognize the contribution of third-country nationals to the economy of the Union and to reduce unfair competition resulting from their possible exploitation. Besides the specific recitals that illustrate some of the paragraphs of this article, when 5 applying and interpreting the right to equal treatment in the different fields, other important elements - which inform the interpretation of all the provisions of the Directive-, recalled in recitals 29 (no discrimination, in accordance with the EU antidiscrimination Directives) and 31 (respect of the fundamental rights and principles of the Charter of Fundamental Rights of the Union), have to be duly taken into account. The importance of the Charter of Fundamental Rights for the interpretation of the scope and limitations of the principle of equal treatment can hardly be overstated. Even if the right of equal treatment is relative in nature and takes as the point of reference an element serving as comparator (in this case, the rights of nationals of the Member State concerned), the provisions of the Charter serve as the framework for interpretation of the precise contours of the applicability of this very principle. 131 This has been clearly 127 Stt Recital 54 and Article 22 of that Directive. Even though that la.st provision al.so allows Member States to derogate from the equal treatment principle, those possibilities have been enunciated in a more restrictin manner comparing to the restriction possibilities awarded by Article 12 of the Single Permit Directive. 121 Council doc. 6297/09 of 12 February 2009. 129 Peers/Guild/Acosta Arcarazo/Groenendijk/Moreno-Lax, EU Immigration and Asylum Law, p. 228. Indeed, these gaps had been identified by the Commission impact assessment, SEC(2007) 1408. Equal treatment in the field of market access seemed nonetheless politically unfeasible. 110 Article"! 1 of the Long-Term Residents Directive 2003/109/EC and Article 14 of the Blue Card Directive 2009/50/EC. 111 Iglesias Sanchez, Fundamental Rights Protection, p. 137-153.

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underlined by the judgment of the Court of Justice in Kamberaj, which concerned the interpretation of the Long-Term Residents' Directive 2003/ I 09/EC. 132 6 The issue of compliance of the standards set out by this Article with those provided in relevant international instruments, such as the European Convention orr the Legal Status of Migrant Workers, the ILO Migrant Workers Convention or the European Social Charter, was raised during the negotiations in the Council. 133 The International Labour Organization submitted a document expressing her views on the social security and equal treatment/non-discrimination dimensions, 134 highlighting the relevance of different international instruments, which had to be duly taken into account. 135 In this regard, as the Commission pointed out, it has to be duly noted that Article 13 clearly establishes the applicability of more favorable provisions.

II. Drafting history This provision has been the object of arduous discussions during the legislative procedure in the Parliament and in the Council, which even put in question - before the entry into force of the Lisbon Treaty - the legal basis to be used. 136 8 Even though the Commission's Proposal already contained considerable possibilities to restrict and to derogate from the equal treatment principle, these possibilities were broadened, with some exceptions, during the negotiations in the Council, mostly with regard to the fields of education and vocational training, social security and tax benefits. In many cases, the Commission and the Member States considered adequate to reflect the equivalent provisions of the Blue Card Directive 2009/50/EC. 137 9 Due to the wide scope of the Directive, it was considered that this provision would have 'immediate direct impact on social security schemes of the Member States'. In consequence, by initiative of the Presidency of the Council, the Social Questions Working Party was actively involved in the negotiations in the Council.U8 10 Reference to the specific drafting history will be made in the commentary devoted to each of these fields. 139 7

III. Personal scope of application II

The introductory line of Article 12(1) states the subjects who are entitled to the application of the equal treatment principle according to this article: third-country nationals already admitted for purposes other than work but who are allowed to work m ECJ, Kamberaj, C-571/10, EU:C:2012:233. m Council doc. 10807/08 of 2 July 2008. IJ.t !LO, Comments on the EU single permit directive and its discussions in the European Parliament and Council, (2011), available at: http://www.ilo.org/wcmsp5/groups/public/-europe/-ro-geneva/-ilobrussels/documents/genericdocument/wcms_l68535.pdf [last accessed 01 April 2015]. 115 In particular, the 1998 ILO Declaration on Fundamental Principles and Rights at Work, the Social Security (Minimum Standards) Convention, 1952 (No 102), the Equality of Treatment (Social Security) Convention, 1962 (No 118), the Migration for Employment Convention (Revised), 1949 (No 97), the the Migrant Workers (Supplementary Provisions) Com,:ntion, 1975 (No 143) and the Migrant Workers Recommendation, 1975 (No 151), which accompanies Convention No 143. 116 See. in particular, Council doc. 15113/08 of 6 November 2008. 117 See, e.g. Council doc. 10807/08 of 2 July 2008. See Brinkmann, Opinion of Germany, p. 361. 118 Council doc. 5082/09 of 7 January 2009. 11• See also Groenendijk, Equal Treatment of Workers from Third Countries; and Potisepp. The Negotiations. 948

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and hold a residence permit (Article 3(l)(b)) and those third-country nationals who have been admitted to a Member State for the purpose of work in accordance with Union or national law (Article 3(l)(c)). This leaves outside the application of the equal treatment principle the individuals referred to in Article 3(l)(a): third-country nationals who apply to reside in a Member State for the purpose of work. This exclusion is explained because these third-country nationals have not yet been admitted or authorized to work. In contrast to the provisions of Chapter II of the Directive, this article is, in principle, 12 applicable with no derogations to all third country workers - notwithstanding the initial purpose of their admission- and single permit holders. These third-country nationals are, as a general rule, entitled to this common set of rights based on the principle of equal treatment with the nationals of the host Member State. This is confirmed by recital 20, which states that all third-country nationals legally residing and working in Member States should enjoy at least a common set of rights based on equal treatment, irrespective of the initial purpose of or basis for their admission: the right to equal treatment should be granted not only to those third-country nationals admitted to work but also to those admitted for other purposes and who have been given access to the labour market in accordance with Et; or national law. Even though recital 20 explicitly mentions family members in accordance with the Family Reunification Directive 2003/ 86/EC and third country nationals admitted under the former Students and Researchers Directive, this enumeration is not exhaustive. Nonetheless, important restrictions apply with regard to the application of the equal 13 treatment principle with regard to specific aspects, which will be examined below. These restrictions apply, mainly, to those who are no longer in employment. These restrictions, already contemplated by the Commission's Proposal, are aimed to counterbalance the broad definition of 'third-country worker', that encompasses all third-country nationals allowed to work, and which therefore, do not require per se to be in actual employment. 140

IV. Areas subject to unrestricted equal treatment Some of the specific fields listed in this article, to which the principle of equal 14 treatment applies, are not affected by any limitations or derogations. This fact implies that the Member States cannot limit the application of the equal treatment principle in these fields. The references contained to national law should not be therefore tantamount to a possibility to derogate from the equal treatment principle in these fields. The Commission Proposal provided for the possibility to introduce limitations to the 15 equal treatment principle with regard to working conditions and to the freedom to association and affiliation. This possibility was eliminated in the final text of the Directive as several Member States put forward that these rights are granted under ILO Conventions and that cannot be subject to limitations. 141

I. Working conditions (Article 12(l)(a)) Third-country workers are entitled to the right to equal treatment with regard 16 working conditions, which include equal pay and dismissal, as well as health and safety 140 See oh the negotiations of the personal scope of Article 12, Groenendijk. Equal Treatment of Workers from Third Countries, p. 550. 1 1 • Council doc. 10807/08 of 2 July 2008.

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at the work place. According to recital 22, these working conditions are a minimum, and they cover as well, working time and leave, taking into account collective agreements in force. 17 By granting unrestricted equal treatment in the field of working conditions, the Single Permit Directive seems to go beyond the protection granted by Article 15(3) of the Charter of Fundamental Rights, according to which third country nationals authorised to work in the Member States are entitled to working conditions 'equivalent' to those of citizens of the Union. 142 It is to be noted that the Charter of Fundamental Rights recognizes the right to protection against unjustified dismissal (Article 30) and the right to fair and just working conditions (Article 31). Article 32 moreover contains a prohibition of child labour and establishes the obligation to adapt the working conditions of young people to their age.

2. Freedom of association and affiliation (Article 12(1)(b)) This provision establishes the right to equal treatment with regard to the freedom of association and affiliation, and membership to organisations representing workers (or employers), including organisation representing specific occupations. The right to equal treatment in this field also encompasses the benefits that may be conferred by such organisations. This provision is without prejudice to national provisions on public policy and public security. 19 It has to be noted that two provisions of the Charter of Fundamental Rights have a crucial relevance for the interpretation of this indent: Article 12 - freedom of assembly and of association- and Article 28 - on the right of collective bargaining and action-.' 43 18

3. Recognition of diplomas (Article 12(l)(d)) Article 12(1)(d) makes the principle of equal treatment applicable to the recognition of diplomas, certificates and other professional qualifications, in accordance with the 'relevant national procedures'. In this regard, recital 23 clarifies that this obligation applies to the qualifications acquired by a third-country national in another Member State, and that Member States should take into account Directive 2005/36/EC on the recognition of professional qualifications. With regard to qualifications obtained in third States, it has to be noted that this directive 'does not create an obstacle to the possibility of Member States recognizing, in accordance with their rules, the professional qualifications acquired outside the territory of the European Union by third country nationals'.' 44 Article 3(3) of Directive 2005/36/EC also establishes certain criteria for assessing formal qualifications issued by third States. 145 21 Recital 13 clarifies that this Directive does not affect the national procedures on recognition of diplomas. A further (and somehow unnecessary) clarification offered by recital 23 is that the application of the equal treatment principle in this field is without prejudice to the competence of the Member States to admit such persons to their labor market. 20

142

Groenendijk. Equal Treatment of Workers from Third Countries, p. 553. Indeed, this provision is relevant, even if the suggestion of France lo include in this point a reference to the right to strike was not taken on board, Council doc. 10807/08 of 2 July 2008. 144 Recital IO of Directive 2005/36/EC. 145 According lo this provision, '[elvidence of formal qualifications issued by a third country shall be regarded as evidence of formal qualifications if the holder has three years' professional aperience in the profession concerned on the territory of the Member State which recognised that evidence of formal qualifications in accordance with Article 2(2), certified by that Member State'. 1"

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4. Advice services of employment offices

Third-country workers are also entitled to equal treatment in the access to advice 22 services afforded by employment offices. This provision was merged with the provision regarding access to goods and services and gained autonomy during the negotiations in the Council. 146 In this regard, it is worth recalling that Article 29 of the Charter of Fundamental 23 Rights establishes that everyone has the right of access to a free placement service.

V. Areas in which equal treatment can be limited or derogated from Several material fields to which the equal treatment principle applies, according to 24 Article 12, are subject to specific limitations and possibilities for derogation. These possibilities are regulated in Article 12(2).

l. Education and vocational training (Article 12(1)(c) and Article 12(2)(a)) Article 12 establishes the principle of equal treatment with regard to education and 25 vocational training. This provision covers not only access to education, but also grants and loans. 147 Article 12(2)(a) makes available to States very broad possibilities to derogate from the 26 principle of equal treatment in this field. Indeed, Member States are allowed to introduce four types of restrictions. First, they may limit the application of the equal treatment principle to those third-country workers who are in employment or to those who have been employed and are registered as unemployed. Second, it is stated that those thirdcountry workers that were admitted under the provisions of the former Students Directive 2004/114/EC can be excluded from the application of the principle of equal treatment with regard to education and vocational training. 148 Third, Member States can exclude the application of the equal treatment principle to study and maintenance grants and loans, or other grants and loans. Fourth, access to university and postsecondary education, as well as to vocational training can be made conditional to the payment of tuition fees and to language requirements, but only inasmuch as such education is not directly linked to the specific employment activity of the third-country national concerned. In this last connection, even though this possibility of derogation was not contained in the Commission's Proposal, this institution considered legitimate the suggestion of Germany to restrict not only study grants, but also access to higher education. 149 A further limitation in this field is signalled in recital 27, which was included during 27 negotiations in the Council 150 and imported from the Blue Card Directive 2009/50/ EC 151 refers to 'measures in the field of vocational training which are financed under ,.. Sec suggestions of the Presidency, Council doc. 12054/08 of 22 July 2008.

Even if it is not clear from the wording of Article 12(l)(c), a systematic consideration of point in conjunction with Article l 2(2)(a)(iii), which allows Member States to derogate from the equal treatment principle with regard to grants and loans, confirms this interpretation. 148 This reference shall be understood as referring to those admitted as students under the Students and Researchers Directive 2016/801/EU. 149 Council doc. 10807/08 of 2 July 2008. •~ Council doc. 13969/08 of 13 October 2008. The Council Legal Service expressed the opinion that this clause ·should had been added in the body of the Directive rather than in a recital. Council doc. 14668/08 of 29 October 2008. m Article 14(l)(e) of Council Directive 2009/50/EC. 147

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social assistance schemes'. However, it must be recalled that recitals which do not find a correlative provision in the body of a legal act have very limited value, most of all if they run counter the wording or objectives of the legal provisions of a directive. 152 28 These limitations, inasmuch as they constitute derogations from the equal treatment principle, have to be strictly interpreted. It has to be duly taken into account that Article 14 of the Charter of Fundamental Rights recognises that 'everyone has the right to education and to have access to vocational and continuing training'.

2. Social security (Article 12(l)(e)) and Article 12(2)(b)) The application of the equal treatment principle in the field of social security was one of the most controversial issues during the negotiations, m and has proven to ~ one of the aspects of the Single Permit Directive presenting particular difficulties. It is the subject matter of the only case law of the ECJ adopted to date with regard to the Single Permit Directive, having given rise to two judgements.1S4 Several other preliminary references, are still pending. 155 The EU has limited competences in this field, as recalled by recital 26, which reflects the case law of the Court of Justice: in the absence of harmonisation at Union level, each Member State lays down the conditions for access to social security benefits and their amount, complying with EU law when exercising these powers. 156 However, when exercising their powers, Member States must comply with EU law, 157 in particular, with the equal treatment obligations that the Single Permit Directive imposes in this field. 30 Article 12(l)(e) establishes that the right to equal treatment applies to the branches of social security, as defined in Regulation (EC) No 883/2004. That means that when a benefit is included amongst the benefits covered by that regulation, the equal treatment principle applies. 158 Nevertheless, it must be emphasised that the reference to the Social Security Coordination Regulation (EC) No 883/2004 has a purely definitional value. First, the intra-EU dynamic that underlies that regulation is not applicable with regard to Article 12(l)(e) of the Single Permit Directive. This is confirmed by recital 24, which makes clear that the provisions on equal treatment also apply to workers admitted directly from a third country. Second, the potential derogations or conditions set out in that regulation do not apply with regard to the Single Permit Directive and the equal treatment principle in the field of social security: as stated by the ECJ in WS, the fact that the Social Security Coordination Regulation (EC) No 883/2004 applies to thirdcountry nationals and members of their family provided that they are legally resident in the territory of a Member State does not mean that Member States can exclude from the 29

Sa:, to that effect, ECJ, WS, C-302/19, EU:C:2020:957, para 32. For the factual situation of limitations to access of third country workers to social security, see: European Migration Network, Migrant access to social security and healthcare: policies and practice, 2014. ,s. ECJ, Martina: Silva, C-449(16, EU:C:2017:485 and WS. C-302(19, EU:C:2020:957. m Request for a preliminary ruling from the Tribunale di Milano of 25 September 2020 - Associazione per gli Studi Giuridici sull'lmmigrazione (ASGI) and Others v. Presidenz.a dd Consiglio dei Ministri Dipartimento per le politiche della famig(ia. Ministero dell'Economia e delle Finanze (Case C-462/20) (OJ 2020/C 433/36), requesting, i.a. the interpretation of Article 12(1 )(e) and (g) of the Single Permit Directive; and the request for a preliminary ruling from the Corte costituzionale of 30 July 2020 - 0. D., R.I.H.V., B.O., F.G., M.K.F.B., E.S., N.P. and S.E.A. v. lstituto nazionale della prmdenz.a &Ociale (INPS) (Case C-350(20) (OJ 2020 C 329(7) requesting the interpretation of Article 34 of the Charter of fundamental rights in connection with Article 12(1)(e) of the Single Permit Directive. 156 See, i.a. ECJ. F.C. Terlioeve, C-18(95, EU:C:1999:22. 15 7 ECJ, WS, C-302/19, EU:C:2020:957, para 23. '" ECJ, Martina Silva, C-449(16, EU:C:2017:485, paras 19 and 20. 152

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right to equal treatment in the field of social security under the Single Permit Directive the holder of a single permit whose family members do not reside in the territory of the Member State concerned_ 1s9 Article 12(2)(b) allows Member States to establish two types oflimitations: a general 31 limitation and a limitation regarding family benefits. These derogations can only be relied by Member States if the national authorities have clearly stated that they intend to rely on them. 160 The general derogation is contained in the first paragraph of Article 12(2)(b) allows Member States 'to limit the application of the equal treatment principle in the field of social security'. However, what may appear a rather broad possibility of limitation is immediately circumscribed: the application of the principle of equal treatment cannot be restricted with regard to third-country workers who are actually in employment, and with regard to those who have been employed during six months and are registered as unemployed. 161 This means in fact that equal treatment in social security can be limited exclusively with regard to those who are unemployed, have not been previously employed during six months, and are not registered as unemployed. Moreover, provision does not prejudge the right of residence: as stated in Article 12(3), the application of the equal treatment principle according to this article is without prejudice to the 'right' of Member States to decide on the residence rights. But if, according to the applicable law, the unemployed third country worker retains the right of residence, the limitations to the equal treatment principle cannot be applied as long as she has worked for a minimum period of six months and is registered as unemployed. Recital 25 states that these restrictions should not affect the rights that are conferred in accordance to Regulation (EU) No 1231/2010, which extends the Social Security Coordination Regulation (EC) No 883/2004 and Regulation (EC) No 987/2009 to nationals of third countries not already covered by these Regulations solely on the ground of their nationality. Member States are also allowed to establish that the application of the equal 32 treatment principle does not apply with regard to family benefits concerning three types of third-country workers: those who have been authorised to work for a period not exceeding six months; those who have been admitted for the purpose of study or those who are allowed to work on the basis of a visa. This provision was introduced at the instances of some Member States to mirror the limitation contained in the annex of Regulation 859/2003 with regard to which only the holders of certain permits did not have the right to family benefits. Since, during the negotiations, the reference to Regulation 859/2003 was changed with the reference to Regulation 883/2004, this indication was introduced. 162 The ECJ has ruled in WS that the derogation of Article 12(2)(b) concerning family benefits does not allow Member States to exclude from the right to equal treatment single permit holders whose family members reside in a third country. 163 The ECJ's conclusion is, first, based on a systematic reading of the Single Permit Directive, which provides for that kind of 'territorial' derogation in Article 12(2)(c) regarding ,so EC), WS. C-302/19, EU:C:2020:957, paras 36-37. ECJ, Martinez Silva, C-449/16, EU:C:2017:485, para 29 and WS, C-302/19, EU:C:2020:957, para 26. In this same sense, recital 25 clarifies that the principle of equal treatment should. at least. apply with regard to third-country workers who are in employment or who are registered as wiemployed after a minimum period of employment. lbl For the negotiations, see Brinkmann, Opinion of Germany, p. 362-363. 1"-' EC), WS. C-302/19, EU:C:2020:957, para 27. See, for a paralld case reaching similar conclusions with regard to the Long-Term Residents Directive 2003/109/EC; EC,, VR. C-303/19, EU:C:2020:958. 160 161

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tax advantages, but not with regard to social security. 164 Second, the ECJ has placed great value on the teleological interpretation of the Single Permit Directive and its aim to promote integration. 165 Third, from the point of view of a contextual interpretation, the ECJ has emphasised that the fact that there are derogations, regarding territorial limitations for the enjoyment of benefits in Article 1 of Regulation (EU) No 1231/2010 166 and in Article 11(2) of the Long-Term Residents Directive 2003/109/EC, cannot mean that such derogations are also included in the Single Permit Directive. 167 Fourth, the ECJ has interpreted recital 24, bringing it in line with the wording and objective of the Directive. According to that rather unclear recital, the Single Permit Directive does not confer more rights than those already provided in existing Union law in the field of social security for third-country nationals who are in cross-border situations and that it should not grant rights in relation to situations which lie outside the scope of Union law (such as in relation to family members residing in a third country). Moreover, this recital states that the Directive should only grant rights in relation to family members who join third-country workers to reside in a Member state on the basis of family reunification (or family members who already reside legally in that Member State). The judgement in WS declares that that recital only clarifies that the Single Permit Directive does not itself grant social security rights over and above equal treatment with nationals of the host Member State, and that it merely reinstates that the directive in and of itself do not require Member State to pay social security benefits with regard to non-resident family members. 168 Once Member State decide to pay such benefits to their own nationals with regard to non-resident family members, they must apply the equal treatment principle with regard to single permit holders. By rejecting any value of an interpretation of the recital that would contradict the clear wording of the provisions of the Directive, 169 the ECJ offers very valuable interpretative guidance and sends an important message for the EU legislator. Indeed, in the the field of EU legal migration, preambles are systematically fraught with recitals containing 'clarifications', often in the form of conditions and exceptions, not always included in or even contradicting the content of the legal provisions of EU acts. 33 National legislation implementing the Directive and, eventually, making use of the derogation possibilities from the equal treatment principle in the field of social security, will have to comply with Article 34 of the Charter of Fundamental Rights, which i.a. recognizes that '[e]veryone residing and moving legally within the European Union is entitled to social security benefits and social advantages in accordance with Union law and national laws and practices'.

3. Tu benefits (Article 12(l)(f) and Article 12(2)(c)) 34

The principle of equal treatment applies to tax benefits, as long as the worker can be considered as resident for tax purposes in the Member State concerned. This last qualification was added during the negotiations in the Council, at the request of Germany. 170 164

Ibid., para 28. •s Ibid., para 34. 166 Regulation of the European Parliament and of the Council of 16 September 2009 laying down the procedure for implementing Regulation (EC) 883/2004 (OJ 2009 L 284/1). 16 ' ECJ, WS, C-302/19, EU:C:2020:957, paras 36-38. 1oa Ibid., para 31. 169 ibid., para 31 and 32. 11° For the negotiations, see Brinkmann, Opinion of Germany, p. 362. 1

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According to Article 12(2)(c), the application of the equal treatment principle can be 35 limited to cases where the registered or usual place of residence of the family members of the third-country worker for whom she is claiming the benefits lies in the territory of this Member State.

4. Access to goods and services (Article 12(l)(h) and Article 12(2)(d)) Article 12(l)(h) establishes the application of the principle of equal treatment in the field of access to goods and services, the supply of goods and services available to the public, including the procedures for obtaining housing (as provided by national law). During the negotiations in the Council, and in line with the Blue Card Directive 2009/ 50/EC, 171 a new sentence was added to clarify that this is without prejudice to the freedom of contract in accordance with Union and national law. However, Article 12(2)(d) enables Member States to derogate from the equal treatment principle in two situations: first, they can limit its application to those thirdcountry workers who are currently in employment; second, they can restrict access to housing. A restriction to the application of the principle of equal treatment with regard to housing was already contemplated in the Commission's Proposal, but it only covered public housing and it was limited to those who had been staying or who had the right to stay in the concerned Member State for at least three months. The final wording of Article 12(2)(d) provides for the possibility to establish a general derogation from the equal treatment principle with regard to housing. However, this possibility of limitation will have to be strictly interpreted, having in mind that Article 34(3) of the Charter of Fundamental Rights establishes that '[i)n order to combat social exclusion and poverty, the Union recognises and respects the right to social and housing assistance so as to ensure a decent existence for all those who lack sufficient resources, in accordance with the rules laid down by Union law and national laws and practices'. 172

36

37

38

39

VI. Right of States to withdraw or refuse renewal of permits (Article 12(3)) Article 12(3) establishes that the right to equal treatment does not affect the right of 40 Member States to withdraw or to refuse the renewal of the residence permits. This provision, introduced at the request of some Member States during the negotiations in the Council, 173 mirrors a similar provision contained in the Blue Card Directive 2009/ 50/EC. 174 and can only be understood in light of the case law of the ECJ with regard to the rights granted by association agreements. 175 In this regard, it has to be recalled that the ECJ interpreted the Euro-Mediterranean Agreement with Tunis in the sense that, a provision regarding non-discriminatory treatment had effects on the right of a Tunisian national to remain in the territory of a Member State, where he had been duly allowed to work for a period exceeding beyond the validity of his permission to remain.176 Article 14(2). Stt in this connection, Beduschi, An Empty Shell, p. 221. 173 Council doc. 10807/08 of 2 July 2008. 174 Article 14(3) of the Blue Card Directive 2009/50/EC. 1:-s Peers/Guild/Acosta Arcarazo/Groenendijk/Moreno-Lax. EU Immigration and Asylum Law, p. 227, footnote 40. 17• ECJ. Gattowsi, C-97/05, EU:C:2006:780. 171

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VII. Export of pensions (Article 12(4)) The Commission's Proposal provided for the application of the equal treatment principle to the payment of acquired pensions when moving to a third country. However, this wording was opposed by several Member Statesm. Indeed, some concerns were raised during the negotiations in the Council since, traditionally, the export of benefits has been a reciprocal obligation contained in bilateral or in association agreements. In as much as the only established unilateral obligations, it was noted that EU nationals would not have the same right in third states. 178 Therefore, it was decided to regulate this issue on a separate paragraph of Article 12 to reflect the principle of reciprocity. 179 42 According to Article 12(4), statutory pensions related to old age, invalidity and death, shall be exported when a third country workers move to a third state, or when their survivors deriving rights from them reside in a third country, but only under the condition of reciprocity. Even if this requirement is established as a compulsory condition and no derogation is foreseen, it has to be recalled that, according to Article 13, Member States remain free to adopt or maintain more favourable provisions. The relevance of this provision is not to be understated, since it is not provided in other migration directives such as, notably, the Long-Tenn Residents Directive 2003/109/EC. 180

41

CHAPTER IV FINAL PROVISIONS Article 13 More favourable provisions l. This Directive shall apply without prejudice to more favourable provisions of: (a) Union law, including bilateral and multilateral agreements between the Union, or the Union and its Member States, on the one hand and one or more third countries on the other; and (b) bilateral or multilateral agreements between one or more Member Stales and one or more third countries. 2. This Directive shall be without prejudice to the right of Member States to adopt or maintain provisions that are more favourable to the persons to whom it applies.

Article 13, which was originally inserted in Chapter Ill of the Directive, now forms part of the final provisions, and as such, informs the complete Directive. This provision reflects the fact that this is a Directive providing for a minimum level of harmonization, and serves also to safeguard international commitments of the Union and of the Member States. 2 With regard to the agreements of the Member States, it is to be noted that, differently from the corresponding provision in the Blue Card Directive 2009/50/EC, 181 this article does not limit the possibility to adopt or maintain more favourable provisions only to specific fields, but it applies generally to all the fields covered by the directive. 1

Council doc. 10807/08 of 2 July 2008. Council doc. 5681/09 of 23 January 2009. Council doc. 7147/09 of 10 March 2010. 180 Verschueren, Employment and Social Security Rights, p. 108. 1• 1 Article 4 of the Blue Card Directive 2009/50/EC.

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17• 179

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Due to the importance of several instruments, the European Parliament proposed to 3 refer expressly to 'the rights and principles contained in the European Social Charter of 18 October 1961 and the European Convention on the legal status of migrant workers of24 November 1977'. 182 Nonetheless, this was not finally reflected in the final wording of the Directive. This provision is in line with the proposal of the Commission. The explanatory 4 memorandum of the Proposal highlights that Annexes 3, 4 and 5 to the Commission Staff Working Paper which accompanies the proposal provide an illustrative list of international agreements, 183 and states that this provision is valid 'where the provisions concerned are related to the content of the proposal and it concerns the agreements themselves, decisions taken under them and related court decisions'. Among the instruments listed in the annexes are Council of Europe agreements 184 and multilateral international conventions prohibiting discrimination on the basis of national origin (such as the International Covenant on Economic, Social and Cultural Rights).

Artide14

Information to the general public Each Member State shall make available to the genenl public a regularly updated set of information concerning the conditions of third-country nationals' admission to and residence in its territory in order to work there.

Article 15

Reporting l. Periodically, and for the first time by 2S December 2016, the Commission shall present a report to the European Parliament and the Council on the application of this Directive in the Member States and shall propose amendments it deems necessary. 2. Annually, and for the fint time by 2S December 2014, Member States shall communicate to the Commission statistics on the volumes of third-country nationals who have been granted a single permit during the previous calendar year, in accordance with Regulation (EC) No 862/2007 of the European Parliament and of the Council of 11 July 2007 on Community statistics on migration and international protectionl 19>. The first periodic report on implementation of the Single Permit Directive, 185 I presented with a considerable delay in 2019, was postponed in order to coincide with • 02

European Parliament doc. A7-0265/2010 (UBE Report) of 22 October 2010. m Commission impact assessment, SEC(2007) 1408. The annexes refer to treaties established by the Council of Europe and by the UN; multilateral agreements between the EU and third countries - such as the EEA agreement, association and cooperation agreements; and multilateral treaties ratified by the Member States. ,.. Some of them, such as the European Social Charter of 18 October 1961, the revised European Social Charter of 1996 and the European Convention on the legal status of migrant workers of 24 November 19n, apply to third-country workers who are nationals of Council of Europe member countries. The European Convention on Human Rights - which applies notwithstanding of nationality- is also considered. 0 9 > OJ L 199, 31.7.2007, p. 23. 18 s Commission Report, COM(2019) 160 final.

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the adoption of the Commission's comprehensive evaluation of the legal migration regulatory framework and was drawn on the basis of a external study conducted by the on the basis of ad hoc queries launched through the European Migration Network. individual complaints, questions, petitions and a few practical issues arising from the Directive's application as identified by the supporting study for the fitness check. 186 The report confirms that Member States were at first reluctant to transpose the Directive and communicate transposition measures, with 14 infringement proceedings having been commenced by the Commission, all of which were later closed. However, the report reveals some important deficiencies in the transposition and application of the Directive, related with the still existing administrative complexity and the persisting need to obtain entry visas and labour market clearances, as well as to the restrictive interpretation of the equal treatment principle in the different areas covered by Article 12 by several Member States. Another persistent problem appears to be the lack of information of the single permit holders about the rights attached to their status. 2 The Commission has announced that it will take all the necessary actions to ensure proper implementation, including infringement proceedings, but it has also acknowledged that some of the deficiencies arise from the lack of clarity of the provisions of the Directive. This is the case of issues such as 'visa and labour market test requirements, equal treatment coverage and issues related to the format of the permits and the information it should contain', with regard to which the Commission will engage in technical clarification.

Article 16 Transposition 1. Member States shall bring into force the laws, regulations and administntive provisions necessary to comply with this Directive by 25 December 2013. They shall forthwith communicate to the Commission the text of those provisions. When Member States adopt those measures, they shall contain a reference to this Directive or shall be accompanied by such a reference on the occasion of their official publication. The methods of making such reference shall be laid down by Member States. 2. Member States shall communicate to the Commission the ten of the main provisions of national law which they adopt in the field covered by this Directive.

Article 17 Entry into force This Directive shall enter into force on the day following its publication in the

Offidal Journal of the European Union.

Article 18 Addressees This Directive is addressed to the Member States in accordance with the Treaties. 116

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Iglesias Sanchez

Chapter 15. Seasonal Worken Directive 2014/36/EU Select Bibliography: Costello/Freedland, 'Seasonal Workers and Intra-Corporate Transferees in EU Law: Capital's Handmaidens?', in; Howe/Owens (eds), Temporary Labour Migration in the Global Era the Regulatory Challenges (Hart, 2016), p. 43-64; European Migration Network, Attracting and protecting the rights of seasonal workers in the EU and United Kingdom: Synthesis Report for the EMN Study (December 2020); FudgefHertzfeld Olsson, 'The EU Seasonal Workers Directive: When Immigration Controls Meet Labour Rights', EJML 16 (2014), p. 439-366; Medland, 'Misconceiving 'Seasons' in the Global Food Systems: The Case of the EU Seasonal Workers Directive', EL) 23 (2017), p. 157-171; Palumbo/Sciurba, The Vulnerability to Exploitation of Women Migrant Workers in Agriculture in the EU: The Need for a Human Rights and Gender Based Approach (European Parliament, 2018); Peers, 'EU Justice and Home Affairs Law (Non-Civil)', in: Craig/De Burca (eds), The Evolution of EU Law, 2nd edn (OUP, 2011), Peers et al., EU Immigration and Asylum Law (Text and Commentary), Volume 2, 2nd edn (Martinus Nijhoff, 2012), p. 165-194; Peers, 'Equal Treatment of Atypical Workers: A New Frontier for EU Law?', Yearbook of European Law (2013), p. 30-56; Rijken, 'Legal Approaches to Combating the Exploitation of Third-Country National Seasonal Workers', The International Journal of Comparative Labour Law and Industrial Relations 31 (2015), p. 431-452; Tott6s, "The Past, the Present and the Future of the Seasonal Workers Directive', Pees Journal of International and European Law (2014), p. 45-60; Verschueren, 'Employment and Social Security Rights of Third-Country Labour Migrants under EU Law. An Incomplete Patchwork of Legal Protection', EJML 18 (2016), p. 373-408; 2.oeteweij-Turhan, The Seasonal Workers Directive; • ... but some are more equal than others"', European Labour Law Journal 8 (2017), p. 28-44. Note that literature in the selected bibliography will be mentioned in an abbreviated version in the text below, referring to the authors(s) and a short title only.

Directive 2014/36/EU of the European Parliament and of the Council of 26 February 2014 on the conditions of entry and stay of third-country nationals for the purpose of employment as seasonal workers Official Journal L 94, 28/03/2014, p. 375-390 THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION, Having regard to the Treaty on the Functioning of the European Union, and in particular points (a) and (b) of Article 79(2) thereof, Having regard to the proposal &om the European Commission, After transmission of the draft legislative act to the national parliaments, Having regard to the opinion of the European Economic and Social CommitteeUl, Having regard to the opinion of the Committee of the Regions< 2l, Acting in accordance with the ordinary legislative procedure OJ

(~I Position of the European Parliament of 5 February 2014, OJ C 93, 24.3.2017, p. 246, and decision of the Council of 17 February 2014.

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Seasonal Workers Directive 2014/36/EU

Art. I

CHAPTER I GENERAL PROVISIONS Article 1 Subject-matter I. This Directive determines the conditions of entry and stay of third-country nationals for the purpose of employment as seasonal workers and defines the rights of seasonal worken. 2. For stays not exceeding 90 days, this Directive shall apply without prejudice to the Schengen acquis, in particular the Visa Code, the Schengen Borders Code and

Regulation (EC) No 539/2001. Content

mn. I I. Introduction and Purpose ······································································I 2. Drafting History.......................................................................................... 3 3. Legal Basis·······································-········--················································· 5

I. General remarks ......................................................·-·····································

I. General remarks 1. Introduction and Purpose

I

Directive 2014/36/EU determines the conditions for the entry and residence of nonEU citizens for the purpose of employment as seasonal workers within the territory of the EU. It addresses their legal status and the rights they are owed by Member States and employers. The Directive has two major objectives:• l. An effective management of migration flows connected to temporary employment possibilities in the Member States. 2 Ensuring decent working and living conditions for third-country seasonal workers, whilst at the same time preventing overstaying and/or temporary stay from becoming permanent. The use of the language of conditions of •stay' throughout the Directive, rather than •residence', is significant as it reflects the desire of the Council to emphasise the temporary nature of the permit (see below MN 4). 2 2 The Directive constitutes an aception to the genenl focus in the legal migration directives on facilitating the migration of •highly skilled' workers. It is characterised by a balancing exercise between the desire to encourage the inflow of seasonal workers in the light of the EU's structural need for low-skilled workers, and the need to protect domestic and third-country national workers from exploitation and social dumping. The recitals to the Directive also highlight inter alia the demographic challenges facing Europe. 3 In the explanatory memorandum to its proposal,◄ the Commission emphasised the potential of the Directive to prevent irregular migration and employment, in Recital 7. As pointed out by Costello/Freedland, Seasonal Workers, p. 14, where they note that the Council insisted on amending the original reference to 'residence' in the Commission proposal, to 'stay'. J Recital 6. • Commission Proposal, COM(2010) 370 final, p. 2, 3. 1

2

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Art. 1

Chp. 15

particular in the agricultural sector, by providing for a possibility of lawful seasonal employment. Moreover, the Commission noted the advantage of achieving a more efficient allocation of seasonal works by replacing the specialised and diverging admission schemes for seasonal workers in the Member States with a common regime.

2. Dnfting History As with many other EU migration law instruments, the adoption of the Seasonal 3 Workers Directive was preceded by tough negotiations and a lengthy decision-making procedure. The need for seasonal workers was already acknowledged in the Commission's 2005 Policy Plan on Legal Migration, which foresaw the adoption of EU legal instruments on four types of third-country workers: highly-skilled workers, seasonal workers, intra-corporate transferees and remunerated trainees. Launched at the same time as the ICT Directive 2014/66/EU and often seen as part of the same legislative package, the Seasonal Workers Directive turned out to be the less problematic of the two. Nevertheless, it took a period of three and a half years before the Commission's proposal, issued in July 2010,5 resulted in the adoption of the Directive in February 2014. The final text of the Directive came into effect on 29 March 2014. The deadline for transposition was 30 September 2016. The lengthy decision-making procedure was at least partially due to the role of the 4 European Parliament as a co-legislator under Article 79(2) TFEU and the determination of the EP's LIBE committee to strengthen the Directive's labour protection elements. The EP's opinion of 3 December 2013 6 placed emphasis on workers' rights before and during residence, for example through information and accommodation requirements, and rules regarding the filing of complaints. The discussions in the Council, on the other hand, show a strong concern for the control of third-country workers and the relationship between the Seasonal Workers Directive and EU visa rules. 7 Crucially, the Council introduced a provision, explicitly empowering the Member States to control the number of third-country national workers entering their territory. The Directive also constituted a source of tension in the subsidiarity review by national parliaments, with a number of Member States questioning the sufficiency of the Commission's reasoning and data on which it was based.A

3. Legal Basis The Directive is based on Article 79(2)(a) and (b) TFEU, which deals with the entry 5 and residence conditions of third-country nationals, including the issue of long-stay visas and residence permits and the definition of rights. lt has been argued in the academic literature9 that the legal basis should possibly 6 have been supplemented by Article 153(1)(g) TFEU, which deals with employment conditions for third-country nationals legally residing in Union territory. 10 The latter provision is subject to a different decision-making procedure, namely unanimous voting in the Council and a mere consultation of the European Parliament. 11 In fact, this argument was also made by Bulgaria during the negotiations on the Directive in the 5 Ibid. • European Parliament doc. A7-0428/2013 of 3 December 2013. 7 See for example Council doc. 1057/11 of 27 May 2011, see also Peers et al., EU Immigration and Asylum Law, p. 176. • Kocharov, Republican Europe (Hart Bloomsbury, 2019), p. 126, 127. 9 Peers et al., EU Immigration and Asylum Law, p. 1n. •• Peers, EU Justice and Home Affairs Law, p. 269, 291. 11 See further, Thym, Legal Framework for EU Immigration Policy, MN 11-18.

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2

Council, 12 as well as by the European Parliament Employment Committee. 13 The EP Committee on Legal affairs, however, convincingly argued for maintaining Article 79(2) (a) and (b) as the sole appropriate legal basis, due to the Directive's primary purpose of prescribing the conditions of entry and residence of third-country nationals for the purposes of seasonal employment and of defining the rights of that category of workers and due to the incompatibility of the decision-making procedures of the two provisions. Similarly, Peers has maintained that Article 153 TFEU would merely be the correct legal base for a matter solely concerning the conditions of employment of third-country nationals, whereas Article 79 should be chosen for instruments where the regulation of conditions of employment is ancillary to a measure regulating the rights of thirdcountry nationals generally. 14

Article 2 Scope I. This Directive shall apply to third-country nationals who reside outside the territory of the Member States and who apply to be admitted. or who have been admitted under the terms of this Directive, to the territory of a Member State for the purpose of employment as seasonal work.en. This Directive shall not apply to third-country nationals who at the time of application reside in the territory of a Member State with the exception of cases referred to in Article 15. 2. When transposing this Directive the Member States shall, where appropriate in consultation with the social partnen, list those secton of employment which include activities that are dependent on the passing of the seasons. The Member States may modify that list, where appropriate in consultation with the social partnen. The Member States shall inform the Commission of such modifications. 3. This Directive shall not apply to third-country nationals who: (a) are carrying out activities on behalf of undertakings established in another Member State in the framework of the provision of services within the meaning of Article 56 TFEU, including third-country nationals posted by undertakings established in a Member State in the framework of the provision of services in accordance with Directive 96/71/EC; (b) are family memben of Union citizens who have exercised their right to free movement within the Union, in conformity with Directive 2004/38/EC of the European Parliament and of the Council< 16l; (c) together with their family memben, and irrespective of their nationality, enjoy rights of free movement equivalent to those of Union citizens under agreements either between the Union and the Member States or between the Union and third countries.

12

Council doc. 1057/11 of 27 May 2011. "European Parliament doc. AL\879782 of 23 November 201 I. 14 Peers, EU Justice and Home Affairs Law, p. 394. 11• 1 Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC. 68/ 360/EEC. 72/194/EEC, 73/148/EEC, 75/34/EEC. 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC (OJ L 158, 30.4.2004, p. n).

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Content mn.

I. Scope of Application·································-··············-·······.. ······················-·· l. Personal scope............................................................................................. 2. Material scope ................................ -........................................................... 3. Territorial scope ............................................. -...........................................

l I 3 4

I. Scope of Application 1. Personal scope Article 2 defines the personal scope of the Directive. The Directive applies to third- l country national seasonal workers during the application procedure as well as after they have been admitted for seasonal employment. The definition of third-country national mirrors that employed in other EU immigration law instruments, referring to any physical person who is not an EU citizen according to Article 20 TFEU. With the exception of seasonal workers extending their stay, the Directive does not 2 apply to third-country nationals who are already residing within the territory of a Member State. This precludes its application to asylum seekers, persons in temporary protection schemes and persons whose expulsion is suspended or who have unclear residence status. Furthermore, third-country nationals carrying out activities within the context of the provision of services under Article 56 TFEU or whose activities are governed by the posted workers directive 1s are not covered. Family members of EU/ EEA citizens exercising the free movement rights are also excluded from the personal scope of the Directive.

2. Material scope In each Member State, the Directive only applies to certain sectors of employment 3

decided upon by national authorities. When implementing the Directive, the Member States must submit a list of sectors of employment that are classified as seasonal work (i.e. categorised as 'depending on the passing of the season'). The social partners may be consulted in this process 16 where appropriate. Later modifications of this list are allowed, as long as the Commission is properly informed. The material scope of the Directive will therefore differ from Member State to Member State, depending on the importance of particular industries as well as different grades of organised labour (see also below on activities depending on the passing of the season). Recital 13 of the preamble suggests that it is particularly aimed at the horticultural and agricultural sectors, as well as the tourism sector. 3. Territorial scope

The Directive applies to all EU Member States, with the exception of Denmark and 4 Ireland.'7

15 Directive 96/71/EC of the European Parliament and of the Council of 16 December 1996 concerning the posting of wor~rs in the framt"WOrk of the provision of services. 1 • 1n this context Anide 152 TFEU is of relevance, according to which the Union recognises and promotes the role of the social partners, taking into accowtl the diversity of national systems. 17 Denmark has a permanent opt-out, whereas the UK and Ireland decided not to opt in (recitals 54 and 55). Sec further, Thym, Legal Framework for EU Immigration Policy, MN 5.

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Art. 3

Seasonal Workers Directive 2014/36/EU

It is spelled out in Article 2( I) of the Directive that for stays not exceeding 90 days in Member States fully applying the Schengen acquis, the Directive has to be applied in conjunction with the Visa Code, the Schengen Borders Code and Regulation No 539/ 2001. This means that third-country nationals who do not enjoy an exemption from the visa requirement have to comply with all relevant rules on the issuing of short-stay visas. For Member States not applying the Schengen acquis in full (Romania, Bulgaria, Croatia and Cyprus), only the Schengen border code applies. The relevant admission rules in each individual case thus depend on the applicant's length of stay (up to 90 days or longer) and on whether the prospective country of residence fully applies the Schengen acquis.

Article 3 Definitions For the purposes of this Directive the following definitions apply: (a) 'third-country national' means any person who is not a citizen of the Union within the meaning of Article 20(1) TFEU; (b) 'seasonal worker' means a third-country national who retains his or her principal place of residence in a third country and stays legally and temporarily in the territory of a Member State to carry out an activity dependent on the passing of the seasons, under one or more fixed-term work contracts concluded directly between that third-country national and the employer established in that Member State; (c) 'activity dependent on the passing of the seasons' means an activity that is tied to a certain time of the year by a recurring event or pattern of events linked to seasonal conditions during which required labour levels are significantly above those necessary for usually ongoing operations; (d) 'seasonal worker permit' means an authorisation issued using the format laid down in Council Regulation (EC) No 1030/20020 7> bearing a reference to seasonal work and entitling its holder to stay and work in the territory of a Member State for a stay exceeding 90 days under the terms of this Directive; (e) 'short-stay visa' means an authorisation issued by a Member State as provided for in point (2)(a) of Article 2 of the Visa Code or issued in accordance with the national law of a Member State not applying the Schengen acquis in full; (0 'long-stay visa' means an authorisation issued by a Member State as provided for in Article 18 of the Schengen Implementing Convention or issued in accordance with the national law of a Member State not applying the Schengen acquis in full; (g) 'single application procedure' means a procedure leading. on the basis of one application for the authorisation of a third-country national's stay and work in the territory of a Member State, to a decision on the application for a seasonal worker permit; (h) 'authorisation for the purpose of seasonal work' means any of the authorisations referred to in Article 12 entitling their holder to stay and work on the territory of the Member Stale that issued the authorisation under this Directive; (i) 'work permit' means any authorisation issued by a Member State in accordance with national law for the purpose of work in the territory of that Member State. 1Pi Council Regulation (EC) No 1030/2002 of 13 June 2002 laying down a uniform format for residence permits for third-country nationals (OJ L 157, 15.6.2002, p. I).

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Content mn.

I. Definitions........................................................................................................ I. Seasonal worker .......................................................................................... 2. Activity depending on the passing of the seasons..............................

I I 5

I. Definitions I. Seasonal worker

The definition of 'seasonal worker' is linked to several conditions. Apart from the status as third-country national, the person concerned needs to reside legally in a Member State in order to carry out an activity that stands and falls ('depending') with the passing of the seasons (see below MN 5). The activity must take place on the basis of one or more fixed-term work contracts concluded between the worker and the employer, who must be established in the Member State where the activity is carried out. The requirement of a mandatory agreement between the worker and a local employer is intended to prevent employers from circumventing relatively high local labour costs by hiring the seasonal worker through an employer of a different Member State with significantly lower local labour costs. For example, an employer from Romania may not hire a seasonal worker on Romanian terms in order to perform seasonal work in Austria. The mandatory 'work contract' must be based on working hours (see Article 5), thus preventing employers from shifting the entrepreneurial risk to the seasonal worker by using a contract form where payment is only made upon meeting a certain level or performance (i.e. by fulfilling a harvest quota). The requirement of a work contract concluded 'directly between employer and third-country national' demands a close organisational proximity between contractual performance and the creditor of seasonal work, but (unlike the ICT Directive 2014/66/ EU, for example) does not prohibit hiring the worker through temporary employment agendes. In fact, recital 12 of the preamble explicitly provides for the admission of seasonal workers through employment or temporary work agencies and merely stipulates that such agencies are covered by the provisions of the Directive. This is despite the fact that employment via temporary work agencies has often been identified as problematic, as it makes workers largely dependent on the agency, which is responsible for housing, transport, insurance etc. This re-enforces the vulnerability of the worker and creates non-transparent conditions for payment and deductions from wages for rent and premiums. 18 Member States that insisted on including employment agencies within the scope of the Directive (Spain, Portugal and Sweden) argued that workers employed through such agencies would be better protected by subjecting agencies to the common rules. 19 The Council has requested Member States to explore the possibility of setting specific requirements for temporary work and recruitment agencies aimed at seasonal and other mobile workers in the EU, so as to ensure that such agencies respect minimum quality standards according to national and EU legislation and (where appropriate) collective agreements, and do not impose excessive or illegal fees on workers. 20

18

Rijkeh, Legal Approaches, p. 448, 449-450. Council doc. 5611/12 of 23 January 2012. 20 Council doc. 11726/2/20 of 9 October 2020, para 30. 19

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2

3

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Chp. 15

Seasonal Workers Directive 2014/36/EU

Art. 4

2. Activity depending on the passing of the seasons 5

The activity must be tied to a certain time of the year by a recurring_ event or pattern of events. Those must be linked to seasonal conditions, 'significantly above' those usually necessary for ongoing operations. 'Seasonal conditions' are not adequately predictable nor can they be decisively influenced, thus requiring flexibility from the entrepreneur to respond to shifting levels oflabour demand. Activities linked to agricultural work and seasonal tourism most certainly fall under this definition. There might, however, be other cases where application of the Directive is questionable. It is not entirely clear whether the concept of 'seasonal conditions' is to be interpreted strictly as an external climatic prerequisite (i.e. warm summer in wine cultivation areas), which makes an increased demand for labour not only possible but inevitable. Christmas trade, for example, is an (ever-) recurring event that is culturally and at least in Europe climatically tied to winter time. The demand for labour industries engaged in Christmas trade is, however, closely connected to the (expected) demand for goods and services, which can be estimated through consumer analysis. Moreover, it has been pointed out that seasonal work in intensive agriculture often takes place outside of 'natural seasons' and is linked to the market for produce on the demand side: in reality, there is an ongoing demand for 'seasonal' agricultural workers for at least 10 months of the year. 21 Research conducted by the European Migration Network suggests that the majority of seasonal workers stay for around 90 days; around a third stay for up to six months; and few stay for longer periods between six and nine months. 22

Article 4 More favourable provisions I. This Directive shall apply without prejudice to more favourable provisions of: (a) Union law, including bilateral and multilateral agreements concluded between the Union or between the Union and its Member States on the one hand and one or more third countries on the other; (b) bilateral or multilateral agreements concluded between one or more Member States and one or more third countries. 2. This Directive shall not affect the right of Member States to adopt or retain more favourable provisions for third-country nationals to whom it applies in respect of Articles 18, 19, 20, 23 and 25. Article 4 confirms the validity of more favourable proV1S1ons for third-country nationals contained in bilateral and multilateral agreements or national legislation. Whilst safeguarding a reliable and efficient source of seasonal labour through partnerships agreements with certain prioritised third countries, the co-existence of various entry routes compromises the objectives of achieving a level playing field and adopting a common approach to the admission of seasonal workers. 23

21

Medland, Misconceiving Seasons, p. 457, 460. European Migration Network, Synthesis Report, p. 197. '' Fudge/Herzfeld Olsson, lbe EU Seasonal Workers Directive, p. 439, 450. 22

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CHAPTER II CONDffiONS OF ADMISSION Article 5 Criteria and requirements for admission for employment as a seasonal worker for stays not exceeding 90 days I. Applications for admission to a Member State under the terms of this Directive for a stay not exceeding 90 days shall be accompanied by: (a) a valid work contract or, if provided for by national law, administrative regulations, or practice, a binding job offer to work as a seasonal worker in the Member State concerned with an employer established in that Member State which specifies: (i) the place and type of the work; (ii) the duration of employment; (iii) the remuneration; (iv) the working hours per week or month; (v) the amount of any paid leave; (vi) where applicable other relevant working conditions; and (vii) if possible, the date of commencement of employment; (b) evidence of having or, if provided for by national law, having applied for sickness insurance for all the risks normally covered for nationals of the Member State concerned for periods where no such insurance coverage and corresponding entitlement to benefits are provided in connection with, or as a result of, the work carried out in that Member State; (c) evidence that the seasonal worker will have adequate accommodation or that adequate accommodation will be provided in accordance with Article 20. 2. Member States shall require that the conditions referred lo in point (a) of paragraph I comply with applicable law, collective agreements and/or practice. 3. On the basis of the documentation provided pursuant to paragraph I, Member States shall require that the seasonal worker will have no recoune to their social assistance systems. 4. In cases where the work contract or binding job offer specifies that the thirdcountry national will exercise a regulated profession, as defined in Directive 2005/ 36/EC of the European Parliament and of the Council< 18>, the Member State may require the applicant to present documentation attesting that the third-country national fulfils the conditions laid down under national law for the exercise of that regulated profession. 5. When examining an application for an authorisation referred to in Article 12 (I), Member States not applying the Schengen acquis in full shall verify that the third-country national: (a) does not present a risk of illegal immigration; (b) intends to leave the territory of the Member States at the latest on the date of expiry of the authorisation.

''"' Directive 2005/36/EC of the European Parliament and of the Council of 7 September 2005 on the recognition of professional qualifications (OJ L 255, 30.9.2005, p. 22).

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Art.

s

Seasonal Workers Directive 2014/36/EU Content

mn. I. General requirements for admission for employment not exceeding 90 days.................................................................................... -1 I. Work contract............................................................................................. I 2. Sickness insurance ..................................................................................... . 6 3. Adequate Accommodation ....................................................................... 8 II. Member State specific requirements ......................................................... . 9 I. Compliance with national labour law, collective agreements and/ or practice .. ......... ......... .... ...... .. ...... .... .... .... ........ .......... .................. ...... 9 2. No recourse to the Member States' social assistance systems.......... 10 3. Additional requirements for Member States not fully applying the Schengen acquis ................................................................................... 11.

I. General requirements for admission for employment not exceeding 90 days I. Work contract

2

3

4

5

The material condition for admission is, above all, a valid work contract. Alternatively, a binding job offer can be sufficient if provided for by the Member State under national law, administrative regulation or practice. Only work contracts or job offers where the employer is established in the Member State are admissible (see above Article 3 MN l and 2). In rare cases where the seasonal worker shall exercise a regulated profession, the Member State must require the seasonal worker to submit documentation proving fulfilment of these conditions according to national law. The term 'regulated profession' is defined in accordance with Directive 2005/36/EC. Article S(l)(a) lists essentialia negotii for a work contract under Directive 2014/36/ EU. The description of place and type of work requires considerable specificity as to where and how the activity shall be carried out. Mere general reference to regions or cities are unlikely to meet that requirement. Typically, a seasonal work contract in the agriculture industry would refer to a specified agricultural area, which is geographically sufficiently determinable. The reference to the type of work to be carried out must include a basic explanation of the contractual obligations of the third-country national. i.e. harvester. The work contract or binding job offer needs to include the time-frame during which the activities are to be carried out. A set-date of commencement is not left to the discretion of the Member State in spite of the wording 'if possible', but depends on the extent to which labour demands may be precisely planned, something which will vary depending on the activity in question. Moreover, the work contract must specify the remuneration of the worker. It is notable that the final version of the Directive does not refer to payment that is equal to or above a certain minimum level, as indicated in the explanatory memorandum to the Commission proposal. 24 Even though the salary of seasonal workers will depend on national law, the requirement of a certain minimum level of payment would have been desirable especially in Member States that do not have a law on minimum wages. 'Other relevant working conditions' may include e.g. overtime payments or the applicability of collective agreements. 2'

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2. Sickness insurance

Article 5(1)(b) requires the applicant to have sickness insurance coverage. If pro- 6 vided for under national law, evidence of having applied for sickness insurance may be sufficient. The insurance must cover all risks that are normally covered for nationals of a Member State that do not stand in relation to work within that Member State. Similar requirements are laid down in Article 5(l)(e) of the Blue Card Directive 2009/ 7 50/EC as well as in Article 6(2)(c) of Directive 2005/7 l/EC and Article 6( 1)(c) of Directive 2004/114/EC. The provisions are intended to prevent possible risks for the Member States' social system emanating from the residence of third-country nationals. The compatibility of similar provisions in earlier Directives with Article 6 of ILO Convention No 97, which requires equal treatment with nationals in this area, has been debated and is open to question, 25 but has been confirmed in Member States where the sickness insurance matches the standard of protection granted under the compulsory health insurance of Member States.26

3. Adequate Accommodation Under Article 5(l)(c) the applicant needs to provide evidence2 7 of having adequate 8 accommodation or demonstrate that such accommodation will be provided by the employer. The adequacy of accommodation is evaluated on the basis of local standards (see Article 20(1 )), which may differ significantly between Member States. As seasonal workers upon first recruitment usually have no social or other connection to the geographical area of the workplace, accommodation as a mandatory condition for work is a sensitive point. Searching for accommodation without a residence permit and usually without strong rent securities places them in a weak position on the housing market At the same time, housing provided by the employer places the seasonal worker in a vulnerable position of dependency (see below Article 20 MN 1).

II. Member State specific requirements 1. Compliance with national labour law, collective agreements and/or practice

Article 5(2) obliges the Member State to require the working conditions of the work 9 contract or the binding job offer to comply with existing applicable employment law, labour agreements between the social partners and/or practice. This is meant to ensure that pre-negotiated labour conditions are not undermined. This may include, in particular, wage levels but also working hours and paid leave as well as non-listed work-related issues, such as job-safety rules and job-related benefits.

2. No recourse to the Member States' social assistance systems Article 5(3) is meant to ensure that the seasonal worker is denied access to national 10 social assistance systems. The seasonal worker shall enjoy no benefits in the form of social assistance by the Member States. This is specifically relevant for Member States in 25 Guild, 'EU Policy on Labour Migration: A first Look at the Commission's Blue Card Initiative', CEPS Policy Brief No 145 (2007), p. 6. 20 Hailbronner/Schmidt, 'Council Directive 2009/50/EC', in: Hailbronner (cd), European Immigration and Asylum Law. A Commentary (Han Publishing. 2010), MN 12. 27 Evidence can be a (valid) rental contract with a third party or a commitment from the employer with the same legal value.

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which social assistance may be added to remuneration in case minimum living expenses would otherwise not be covered. 28

3. Additional requirements for Member States not fully applying the Scbengen aaJUis Article 5(5) is addressed to Member States which do not yet fully apply the Schengen acquis, at present Bulgaria, Croatia, Cyprus and Romania. 29 In addition to verifying the entry conditions listed above, these Member States must ensure that the third-country national does not present a risk of irregular immigration and intends to leave the territory of the Member States upon expiry of his/her seasonal work permit. 12 A risk of irregular immigntion for the purpose of the Directive exists in case of an increased likelihood of crossing EU external borders without legal entitlement, in particular for reasons other than seasonal work. The Directive does not provide examples of specific evidence proving or supporting the assumption of irregular border crossing. However, it must be assumed that irregular border crossing is unlikely once the criteria for employment of seasonal worker as described above are fulfilled. A possible reason for assuming irregular border crossing could be a previous deportation procedure and a presumed intent to re-enter the same Member State. Irregular immigration will occur where a third-country national remains in the EU after the expiry of his or her authorisation. 13 Moreover, Article 5(5) requires verification of the applicant's intention not to overstay his authorised residence period. Though it is not realistic to assume that an applicant would answer truthfully under investigation if overstaying is planned, a proven intention to leave the territory on the day of expiry of the permit (for example by purchasing a return ticket) should be considered sufficient. 11

Article 6 Criteria and requirements for admission as a seasonal worker for stays exceeding 90 days I. Applications for admission to a Member State under the terms of this Directive for a stay exceeding 90 days shall be accompanied by: (a) a valid work contnct or, if provided for by national law, administrative regulations, or practice, a binding job offer to work as a seasonal worker in the Member State concerned with an employer established in that Member State which specifies: (i) the place and type of the work; (ii) the duration of employment; (iii) the remunention; (iv) the working hou.n per week or month; (v) the amount of any paid leave; (vi) where applicable, other relevant working conditions; and (vii) if possible, the date of commencement of employment;

u Note e.g. in Germany the 'Aufttockn'-problem, where social assistance can be paid additionally to work-remuneration in lower paid employer-employee rdationships. 29 lrdand is also not pan of the Schengen area, but has not opted in to the Directive, as was also the case for the UK.

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(b) evidence of having or, if provided for by national law, having applied for, sickness insurance for all the risks normally covered for nationals of the Member State concerned for periods where no such insurance coverage and corresponding entitlement to benefits are provided in connection with, or as a result of, the work carried out in that Member State; (c) evidence that the seasonal worker will have adequate accommodation or that adequate accommodation will be provided, in accordance with Article 20. 2. Member States shall require that the conditions referred to in point (a) of paragraph I comply with applicable law, collective agreements and/or practice. 3. On the basis of the documentation provided pursuant to pangraph I, Member States shall require that the seasonal worker will have sufficient resources during his or her stay to maintain him/herself without having recourse to their social assistance systems. 4. Third-country nationals who are considered to pose a threat to public policy, public security or public health shall not be admitted. S. When examining an application for an authorisation referred to in Article 12 (2), Member States shall verify that the third-country national does not present a risk of illegal immigration and that he or she intends to leave the territory of the Member States at the latest on the date of expiry of the authorisation. 6. In cases where the work contract or binding job offer specifies that the thirdcountry national will exercise a regulated profession, as defined in Directive 2005/ 36/EC, the Member State may require the applicant to present documentation attesting that the third-country national fulfils the conditions laid down under national law for the exercise of that regulated profession. 7. Member States shall require third-country nationals to be in possession of a valid travel document, as determined by national law. Member States shall require the period of validity of the travel document to cover at least the period of validity of the authorisation for the purpose of seasonal work. In addition, Member States may require: (a) the period of validity to exceed the intended duration of stay by a maximum of three months; (b) the travel document to have been issued within the last 10 years; and (c) the travel document to contain at least two blank pages. Content

I. Admission criteria for seasonal workers staying longer than 90 days

mn. I

I. Compulsory documentation of work contract, sickness insurance and accommodation................................................................................... 2. Sufficient resources .................................................................................... . J. No threat to public policy, public security or public health ............ .

I 2 3

I. Admission criteria for seasonal workers staying longer than 90 days I. Compulsory documentation of work contract, sickness insurance and accommodation Just as with seasonal workers entering for shorter stays (Article 5(1 )), the applicant I needs te present documentation of a work contract or binding job offer (if possible according to national law) specifying the items listed under Article 6( I )(a). Even

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though the wording of Article 6( l) is identical to Article 5( l ), the mandatory content of the work contract may differ significantly on the basis of national employment law. For example, national law may distinguish between short-term and longer-term employment as regards the granting of mandatory paid leave (v), working hours per week or month (iv) or other working conditions (vi) that fall under operational safety. The requested evidence for adequate accommodation (Article 6(l)(c)) may differ because of presumably higher rental securities that a rental party is entitled to claim under national law.

2.Sufficientresources 2

In contrast to the regime for short-term stays under Article 5, the applicant n~ds to prove that he/she possesses suffident resources to maintain himself/herself without having recourse to the Member States' social assistance systems. A similar requirement for the issuance, or a possible reason for the withdrawal, of a residence permit can be found in other Directives applicable to third-country nationals, such as the Blue Card Directive 2009/50/EC,:io the former Researchers Directive 2005/71/EC3 1 and the former Students Directive 2004/114/EC. 32 Unlike these legal instruments, the Seasonal Workers Directive does not specify how the adequacy of resources is to be evaluated Moreover, the resources do not have to be 'stable and regular', as required under the Family Reunification Directive 2003/86/EC.33 In line with the objective and purpose of the Directive, 'self-maintenance' should therefore be interpreted widely and should not include more than the capacity to cover costs of food and accommodation, unless the latter is taken care of by the employer. It could be argued that future remuneration claims against the employer must be taken into account.

3. No threat to public policy, public security or public health 3

Just as the Directives on Students, Researchers and Highly Skilled Workers, Article 6 (4) of the Seasonal Workers Directive prohibits admission of the applicant if he/she is 'considered to pose a threat to public policy, public security or public health'. 4 The concept of 'public policy, public security' is subject to discussion. 34 It covers a large spectrum of interests which go further than protection against criminal activities. As Member States are granted limited discretion in this area, the concept of 'public policy' may not be interpreted extensively, especially if a Member State's interpretation would largely circumvent or frustrate the aim of the Directive to harmonise market access of third-country seasonal workers. Labour market considerations of a protective nature can therefore not be relevant in this context. In relation to 'public security', the ECJ has confirmed in the context of the former Students Directive 2004/114/EC, that the competent national authorities enjoy a wide discretion in ascertaining, in the light of all the relevant elements of the situation of that an individual third country national, whether he represents a threat, if only potential, to public security. 35 That assessment may take into account wider considerations than the personal conduct of the applicant.36 Furthermore, it is for the national court to ascertain whether the decision of the Article 9(3)(b) of Directive 2009/50/EC. Article 6(2)(b) of Directive 2005/71/EC. ll Article 7( I )(b) of Directive 20041114/EC. H Article 7(1)(c) of Directive 2003/86/EC. 14 See for example Kluth, 'Der Aufenthalt von Forschem nach § 20 AufenthG', Zeitschrift fur Auslanderrccht und Auslanderpolitik 7 (2008), p. 234, 237. 35 ECJ, Fahimian, C-544/15, EU:C:2017:255. ,. Ibid., para 40. JC

11

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Chp. 15

competent national authorities to refuse to grant the visa is 'based on sufficient grounds and a sufficiently solid factual basis'. 37 It should be noted that the interpretation of the concepts of public policy and public 5 security under the Directive differs from the CJEU regime on derogations from EU free movement law on grounds of public security and public order. Since the Seasonal Workers Directive is directed at third-country nationals and does not contain any link to the exercise of the TFEU's fundamental freedoms, the extensive case law of the Court does not apply. 38 Moreover, unlike the Seasonal Workers Directive, Article 27(2) of Citizenship Directive 2004/38/EC specifically requires that a measure taken in the name of public security must be based exclusively on the personal conduct of the individual concerned and that that conduct must represent a 'genuine, present and sufficiently serious threat' to that fundamental interest of society. 39

Article 7 Volumes of admission This Directive shall not affect the right of a Member State to determine the volumes of admission of third-country nationals entering ita territory for the purpose of seasonal work. On this basis, an application for an authorisation for the pwpose of seasonal work may be either considered inadmissible or be rejected. According to Article 7, Member States have the competence to determine the volume of admission of third-country national seasonal workers and may reject an application on such grounds. The Blue Card Directive 2009/50/EC contains a similarly worded provision,40 but does not explicitly classify volumes of admission as a consideration for inadmissibility or a ground for rejection. 41 The Blue Card Directive 2009/50/EC does state in its preamble, however, that Member States may decide not to grant residence permits for employment in general or for certain professions. economic sectors or regions.42 Whilst this possibility is not specified in the Seasonal Workers Directive, it is implied in the possibility to reject or declare inadmissible applications on the basis of specific volumes of admission. Article 7 thus provides a strong tool for Member States to control the quantity of residence permits issued for the purpose of seasonal work. In combination with the possibility to verify whether vacancies can be filled by nationals, EU citizens or resident third-country nationals (Articles 8(3) and 15(6)), this provision may have the effect of Member States maintaining or adopting strict migration policies and essentially preventing the entry of third-county national seasonal workers, thereby reducing the application and impact of the Directive. In practice, research indicates that while most Member States have quotas for seasonal workers, in the majority of Member States these were not fulfilled in 2018. 43 In order to facilitate re-entry, previous admission as seasonal workers may be taken into account when deciding on admission under a set quota. 44 r, Ibid., para 44. For detailed comments, see Thym, ugal Framework for EU Immigration Policy. MN 42a-42d. l" Hailbronner/Schmidt. 'Council Directive 2009/50/EC', in Hailbronner (ed), European Immigration and Asylum Law. A Commentary (Han Publishing. 2010), MN IS. )9 As pointed out by the EC) in Fahimian, C-544/15, EU:C:2017:255, para 40. 40 Article 6 of Blue Card Directive 2009/50/EC. 41 See Thym, Legal Framework for EU Immigration Policy. MN 26-27. 42 Recital 7 of Directiff 2009/ SO/EC. 0 European Migration Network, Synthesis Report, p. 197. .. Article 16(2)(d).

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Article 8 Grounds for rejection I. Member States shall reject an application for authorisation for the purpose of seasonal work where: (a) Articles 5 or 6 are not complied with; or (b) the documents presented for the purpose of Articles 5 or 6 were fraudulently acquired, or falsified, or tampered with. 2. Member States shall, if appropriate, reject an application for authorisation for the purpose of seasonal work where: . (a) the employer has been sanctioned in accordance with national law for undeclared work and/or illegal employment; (b) the employer's business is being or has been wound up under national insolvency laws or no economic activity is taking place; or (c) the employer has been sanctioned under Article 17. 3. Member States may verify whether the vacancy in question could be filled by nationals of the Member State concerned or by other Union citizens, or by thirdcountry nationals lawfully residing in that Member State, in which case they may reject the application. This paragraph shall apply without prejudice to the principle of preference for Union citizens as expressed in the relevant provisions of the relevant Acts of Accession. 4. Member States may reject an application for authorisation for the purpose of seasonal work where: (a) the employer has failed to meet its legal obligations regarding social security, taxation, labour rights, working conditions or terms of employment, as pro· vided for in applicable law and/or collective agreements; (b) within the 12 months immediately preceding the date of the application, the employer has abolished a full-time position in order to create the vacancy that the employer is trying to fill by use of this Directive; or (c) the third-country national has not complied with the obligations arising from a previous decision on admission as a seasonal worker. 5. Without prejudice to paragraph I, any decision to reject an application shall take account of the specific circumstances of the case, including the interests of the seasonal worker, and respect the principle of proportionality. 6. Grounds for refusing the issuing of a short-stay visa are regulated in the relevant provisions of the Visa Code.

Content I. Compulsory grounds for rejection.............................................................. I. Non-compliance with conditions for admission................................. 2. i:raud/misrepresentation in the application process .......................... 3. Employer-related grounds for rejection ................................................ 4. Refusal grounds for the issuing of short-stay visas............................ II. Discretionary grounds for rejection............................................................ I. Labour market test and community preference principle ................ 2. Employer-related grounds........................................................................ 3. Non-compliance with obligations arising from previous admission 4. Individual case clause................................................................................

974

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mn. I I 2 3 4 5 5 6 7 8

Art.

s Chp. 15

I. Compulsory grounds for rejection 1. Non-compliance with conditions for admission

Non-compliance with any of the criteria for admission laid down in Articles 5 and 6 represents a compulsory ground for rejection. The wording does not allow for exceptions and, according to Article 8(5), the specific circumstances of the case must be taken into account.

2. Fraud/misrepresentation in the application process Article 8(l)(b) deals with cases where an application formally fulfils the admission 2 criteria of Articles 5 and 6 but where (one of) the relevant documents was fraudulently acquired, falsified or tampered with. Even though the wording of the provision refers to 'documents', it follows from the objective and purpose of the provision that the submission of one falsified document must be sufficient to justify mandatory rejection, at least if the document was fundamental to the granting of the permit. The wording does not speak of the applicant as a perpetrator, but focuses on the documents to be submitted. Consequently, it is conceivable that third parties are involved in the fraud or falsification. The Directive does not address the question of whether mandatory rejection also applies in case of third party involvement and good faith of the applicant.

3. Employer-related grounds for rejection Article 8(2) stipulates grounds for rejection solely related to the (future) employer of 3

the applicant. A previous sanctioning of the employer for undeclared work and/or illegal employment under national law or under the Directive form a compulsory ground for rejection, as does the insolvency of the employer or the absence of any economic activity. In such cases, rejection is however only required if 'appropriate' and the individual circumstances of the case must be taken into account. Thus, in spite of being a mandatory ground for rejection, Article 8(2) effectively leaves national authorities a considerable margin of discretion. It is unclear if the 'appropriateness' of a national withdrawal decision is to be interpreted in accordance with national law or whether it is to be applied in light of the EU principle of proportionality.

4. Refusal grounds for the issuing of short-stay visas For the issuing of short-stay visas, the mandatory grounds of refusal contained in 4 Article 32 of the Visa Code Regulation (EC) No 810/2009 are also applicable. These include inter alia the failure to provide proof of sufficient means of subsistence and travel insurance.

II. Discretionary grounds for rejection I. Labour market test and community preference principle

Article 8(3) allows Member States to reject applications for the purpose of seasonal S work if the vacancy could be filled by Member State nationals, other Union citizens or lawfully !"esiding third-country nationals. This provision is intended to ensure that Member States have the possibility to apply a labour market test, demonstrating that

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Art.

a

Seasonal Workers Directive 2014/36/EU

the position cannot be filled from within the domestic labour market. 45 In order to accommodate the concerns of newly acceding Member States whose nationals are subject to temporary restrictions on freedom of movement, the Directive specifies that the principle of Community preference, as expressed in the Acts of Accession; has to be respected. Migrant workers from third countries may thus not be treated more favourably than EU migrant workers who are subject to transitional provisions. 46

2. Employer-related grounds 6

Member States are allowed to reject an application for a seasonal worker's permit on grounds of the employer having failed to meet national legal obligations regarding social security, taxation, labour rights, working conditions or terms of employment. In_ addition, the Member States may reject an application if it can be shown that the vacancy to be filled by using the Directive has been created by the employer by abolishing a full-time position within the 12 months immediately preceding the date of the application. This requires a causal link between the abolition of a full-time position and the intention to replace this position with a third-country seasonal worker. This may cause problems in cases where employers factually or allegedly abolished full time positions due to other operational reasons. A legal presumption that every abolition of a full-time position within 12 months before the date of application for a seasonal workers permit was done in order to 'abuse' the provisions of the Directive does not follow from the wording of the provision. 3. Non-compliance with obligations arising from previous admission

7

Member States may reject an application on the basis of the applicant's failure to comply with obligations arising from a previous decision on admission as seasonal worker. This applies in particular to cases where the third-country national has not complied with the obligation to leave the territory of the Member State on the expiry of an authorisation for the purpose of seasonal work. 47 Non-compliance with previous permits and overstaying was initially meant to be a mandatory reason for rejection, but became optional upon insistence of the European Parliarnent. 48 4. Individual case clause

8

Article 8(5) obliges Member States to take into account the specific circumstances of each individual case, including the interests of the seasonal worker, and to respect the principle of proportionality. The case law of the ECJ on the Directive on Family Reunification (2003/86/EC) illustrates the importance of an individual case clause in the application of the Directive. 49 The Court has emphasised the obligation of Member States to make a comprehensive assessment of all relevant facton in each individual case. As opposed to the Directive on Family Reunification, 50 the Seasonal Workers Directive does not specify what kind of circumstances are to be taken into account, 0 Recital 23. The European Migration Network notes that sixteen Member States apply a labour market test to seasonal workers to determine whether the labour market situation justifies the employment of third-country nationals. In ~rmany, a 'needs analysis' is carried out. European Migration Network. Synthesis Report, p. 14. 46 See for example Annex V para 2 et seqq. Of the Act of Accession for Croatia of December 5"' 2011. 41 Recital 24. •• Council doc. 15033/13 of 25 October 2013. 49 ECJ. 0. & S., C-356/11 and C-357/11, EU:C:2012:776, para 81. 50 Article I 7 of Directive 2003/86/ EC.

976

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Chp. 15

which may make it more difficult for third-country nationals to rely upon it. Moreover, the margin of discretion in applying the conditions for admission must be interpreted strictly and may not be used by the Member States in a manner which would undermine the objective and the effectiveness of the directive to facilitate temporary employment of third-country workers in the EU. 51

Article 9 Withdrawal of the authorisation for the purpose of seasonal work I. Member States shall withdraw the authorisation for the purpose of seasonal work where: (a) the documents presented for the purpose of Articles 5 or 6 were fraudulently acquired, or falsified. or tampered with; or (b) the holder is staying for purposes other than those for which he or she was authorised to stay. 2. Member States shall, if appropriate, withdraw the authorisation for the purpose of seasonal work where: (a) the employer has been sanctioned in accordance with national law for undeclared work and/or illegal employment; (b) the employer's business is being or has been wound up under national insolvency laws or no economic activity is taking place; or (c) the employer has been sanctioned under Article 17. 3. Member States may withdraw the authorisation for the purpose of seasonal work where: (a) Articles 5 or 6 are not or are no longer complied with; (b) the employer has failed to meet its legal obligations regarding social security, tuation, labour rights, working conditions or terms of employment, as provided for in applicable law and/or collective agreements; (c) the employer has not fulfilled its obligations under the work contract; or (d) within the 12 months immediately preceding the date of the application, the employer has abolished a full-time position in order to create the vacancy that the employer is trying to fill by use of this Directive. 4. Member Stales may withdraw the authorisation for the purpose of seasonal work if the third-country national applies for international protection under Directive 2011/95/EU of the European Parliament and of the Councilll 9 l or for protection in accordance with national law, international obligations or practice of the Member State concerned. 5. Without prejudice to paragraph I, any decision to withdraw the authorisation shall take account of the specific circumstances of the case, including the interests of the seasonal worker, and respect the principle of proportionality. 6. Grounds for annulment or revocation of a short-stay visa are regulated in the relevant provisions of the Visa Code.

~• See by analogy ECJ. Chakroun, C-578/08, ECLl:EU:C:2010:117, para 43. Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted (OJ L 337, 20.12.2011, p. 9). l 191

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Seasonal Workers Directive 2014/36/EU

Art. 9 Content

mo. I. Compulsory grounds for withdrawal ......................................................... II. Disaetionary grounds for withdrawal....................................................... Ill. Individual case clause.....................................................................................

I 2 5

I. Compulsory grounds for withdrawal I

Article 9(1) and (2) stipulates compulsory grounds for the Member State to withdraw the authorisation for the purpose of seasonal work, which are similar to the compulsory grounds for rejection. The rules on withdrawal oblige Member Slates to resolve an earlier unlawful decision on issuing the authorisation if facts that would have led to compulsory rejection only become known after authorisation. This applies to fraud and falsified documents as well as to infractions by the employer. Moreover, the withdrawal of a permit is mandatory if it appears that the third-country national is staying in the Member State for purposes other than seasonal work. In this context, Member States are obliged to monitor, assess and possibly inspect the employment of seasonal workers in accordance with Article 24. It is, however, up to the Member States to decide whether they withdraw the permit of seasonal workers who cease to comply with the conditions of admission (see below).

II. Discretionary grounds for withdrawal Non-compliance with Articles 5 and 6 of the Directive after the granting of an authorisation for seasonal work are legal grounds for discretion-based withdrawal. This is a major difference to the listing of non-compliance as a compulsory refusal ground for authorisation under Article 8(1 )(a). In particular, it is notable that withdrawal is not mandatory in case the seasonal worker becomes a threat to public policy, public security or public health after admission. 3 The possibilities for national authorities to withdraw a permit in cases where the employer does not fulfil its legal obligations or where it is detected that the vacancy was created in order to replace a full-time position are identical to the corresponding grounds for refusal of admission as described above. In addition, the withdrawal of a permit is possible if the employer does not fulfil its contractual obligations towards the seasonal worker. However, due to the possible personal consequences for the seasonal worker (withdrawal of the authorisation to work). this provision cannot be considered to apply in cases where an employer deliberately fails to comply with contractual obligations in order to incite withdrawal. Such an interpretation would run counter to the purpose of the Directive to address the especially vulnerable situation of third-country national seasonal workers and to provide for an effective protection of rights. 52 4 Article 9(4) allows Member States to consider a discretion-based withdrawal of the application if the person concerned applies for international protection under the Asylum Qualification Directive 2011/95/EU or in accordance with international obligations or national law and practice. Hence, national authorities receiving an application for protection from a seasonal worker are entitled (but not obliged) to withdraw the authorisation for seasonal work. The Directive does not address the possible consequences of such a withdrawal in relation to the initiated asylum procedure, nor does it

2

51

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Recital 43.

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explicitly allow or prohibit a combination of the withdrawal of the authorisation procedure and the asylum procedure.

III. Individual case clause The requirement to take into account the specific circumstances of each case as 5 described above also applies to the withdrawal of a seasonal worker permit. The interests of the seasonal workers could be especially relevant in cases where an employer's noncompliance with their obligations leads to withdrawal (see above Article 8 MN 8).

Article 10 Obligation of cooperation Member States may require the employer to provide all relevant information needed for issuing, extending or renewing the authorisation for the purpose of seasonal work.

Article 10 permits Member States to place a specific obligation of cooperation on the employer to provide all relevant information in an admission or an extension/ renewal procedure. This obligation will be particularly relevant in cases where the Member State has determined that the application is to be submitted by the employer according to Article 12(3).

CHAPTER III PROCEDURE AND AUTHORISATIONS FOR THE PURPOSE OF SEASONAL WORK

Article 11 Access to information I. Member States shall make easily accessible to applicants the information on all documentary evidence needed for an application and information on entry and stay, including the rights and obligations and the procedural safeguards of the seasonal worker. 2. When Member States issue third-country nationals with an authorisation for the purpose of seasonal work, they shall also provide them with information in writing about their rights and obligations under this Directive, including complaint proce-

dures. C.ontent

mn. I. Information obligations of Member States prior to application.......... II. Obligation to inform about rights and obligation upon admission....

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Seasonal Workers Directive 2014136/EU

Art. 12

I. Information obligations of Member States prior to application Article 11 (I) obliges Member States to provide 'easily accessible' information on all documentary evidence needed for an application (Article 12) and information on entry and stay, including the rights (Article 22 ff.) and obligations as well as the procedural safeguards (Article 18) of the seasonal worker. The Commission has emphasised that unclear or missing information about the rights and obligations of seasonal workers and their employers has a direct consequence for their protection.53 In contrast to Article 11(2), requiring written form, Article l 1(1) leaves open to Member States which form or technical means they prefer to use in order to provide information, as long as all information can be retrieved without great effort by the potential applicant. The wording 'easily accessible', is however subject to interpretation and may vary from applicant to applicant. Internet, for example, may not be readily accessible and usable by certain categories of third-country nationals. Moreover, there is no specific requirement to provide information in the language of the potential applicant, although the objective and purpose of the information requirement could imply that the requirements for a successful application should at least be available in English.

II. Obligation to inform about rights and obligation upon admission 2

Article 11 (2) obliges Member States to provide third country nationals with information about their rights and obligations under this Directive, including complaint procedures in written form at the time of issuing an authorisation for the purpose of seasonal work. In a European Migration Network study, five EU Member States, and the UK, specifically reported that information on seasonal worker rights and duties is provided along with their employment contract or authorisation. 54 It is unclear if Article 11(2) only covers first-time authorisations or also renewals and extensions.

Artidel2 Authorisations for the purpose of seasonal work 1. For stays not exceeding 90 days, Member States shall issue third-country nationals who comply with Article S and do not fall within the grounds set out in Article 8 one of the following authorisations for the purpose of seasonal work, without prejudice to the rules on the issuing of short-stay visas as laid down in the Visa Code and in Council Regulation (EC) No 1683/95< 201 : (a) a short-stay visa, indicating that it is issued for the purpose of seasonal work; (b) a short-stay visa and a work permit indicating that they are issued for the purpose of seasonal work; or (c) a work permit indicating that it is issued for the purpose of seasonal work, where the third-country national is exempted from the visa requirement in 5·' Commission Communication, Guidelines on seasonal workers in the EU in the context of the COVID-19 outbreak, C(2020) 2051, p. 12. 5• European Migration Network, Synthesis Report, p. 28. 1201 Council Regulation (EC) No 1683/95 of 29 May 1995 laying down a uniform format for visas (OJ L 164, 14.7.1995, p. I).

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Chp. 15

accordance with Annex II of Regulation (EC) No 539/2001 and the Member State concerned does not apply Article 4(3) of that Regulation to him or her. When transposing this Directive, Member States shall provide for either the authorisations referred to in points (a) and (c) or the authorisations referred to in points (b) and (c). 2. For stays exceeding 90 days, Member States shall issue third-country nationals who comply with Article 6 and do not fall within the grounds set out in Article 8, one of the following authorisations for the purpose of seasonal work: (a) a long-stay visa, indicating that it is issued for the purpose of seasonal work; (b) a seasonal worker permit; or (c) a seasonal worker permit and a long-stay visa, if the long-stay visa is required under national law for entering the territory. When transposing this Directive, Member States shall provide for only one of the authorisations referred to in points (a), (b) and (c). 3. Without prejudice to the Schengen acquis, Member States shall determine whether an application is to be submitted by the third-country national and/or by the employer. The obligation on the Member States to determine whether the application is to be submitted by a third-country national and/or by the employer shall be without prejudice to any arrangements requiring both to be involved in the procedure. 4. The seasonal worker permit referred lo in points (b) and (c) of the fint subparagraph of paragraph 2 shall be issued by the competent authorities of the Member States using the format laid down in Regulation (EC) No I030/2002. Member States shall enter a reference on the permit stating that it is issued for the purpose of seasonal work. 5. In the cue of long-stay visas, Member States shall enter a reference stating that it is issued for the purpose of seasonal work under the heading 'remarks' on the visa sticker in accordance with point 12 of the Annex to Regulation (EC) No 1683/95. 6. Member States may indicate additional information relating to the employment relationship of the seasonal worker in paper format, or store such data in electronic format as referred to in Article 4 of Regulation (EC) No I030/2002 and in point (a) 16 of the Annex thereto. 7. Where a visa is required for the sole purpose of entering the territory of a Member State and the third-country national fulfils the conditions for being issued with a seasonal worker permit under point (c) of the fint subparagraph of paragraph 2, the Member State concerned shall grant the third-country national every facility to obtain the requisite visa. 8. The issuing of a long-stay visa referred to in point (a) of the fint subparagnph of paragraph 2 shall be without prejudice to the possibility for Member States to issue a prior authorisation to work in the Member State concerned. Content

mn. I. Authorisations not exceeding 90 days........................................................ II. Authorisations exceeding 90 days............................................................... Ill. Formal requirements......................................................................................

Wiesbrock/Murphy

I 2 3

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Chp. 15

Art. 13

Seasonal Workers Directive 2014136/EU

I. Authorisations not exceeding 90 days 1

An authorisation for the purpose of seasonal work for stays not exceeding 90 days can take one of three specified formats, as decided upon by the Member States when transposing the Directive into national law: Article 12(l)(a) short-stay visa, Article 12(2)(a) seasonal work permit for third-country nationals exempted from the visa requirement or Article 12(3)(a) combination of visa and seasonal work permit. All documents must specify that they are issued for the purpose of seasonal work.

II. Authorisations exceeding 90 days 2

The format of an authorisation for seasonal work for stays exceeding 90 days is also to be decided upon by the Member States when implementing the Directive. The options include a seasonal workers permit and a long-stay visa indicating that it is granted for the purpose of seasonal work. A third option allows for the combination of both types of documents, but only if a long-stay visa is required for entry under national law.

III. Formal requirements 3

Article 12(3-7) stipulates formalities regarding the application and authorisation procedure. It is up to the Member States to decide whether the application must be submitted by the employer, the applicant seasonal worker or both parties combined. The requirement to take the individual circumstances of the case and the interests of the seasonal worker into account (Article 8(5)) may, however, require an involvement of the applicant even in cases where Member States have opted for exclusive submission by the employer.

Article 13 Applications for a seasonal worker permit I. Member States shall designate the authorities competent to receive and decide on applications for and to issue seasonal worker permits. 2. An application for a seasonal worker permit shall be submitted in a single application procedure.

Article 13(1) obliges the Member States to designate the authorities competent to receive and decide on applications and to issue seasonal worker permits. As in the case of the Blue Card Directive 2009/50/EC, the designation of responsible authorities depends on the national division of competences (migration/labour) and may vary from Member State to Member State. 2 Regardless of such division of competences under national law, Member States must provide for a single application procedure. This is in line with the overall objective of simplifying and harmonising application procedures in the Member States and providing for a more efficient procedure for migrants and future employers as pursued by the I

982

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Art. 14

Chp. 15

Single Permit Directive 2011/98/EU. 55 Hence, in cases where more than one authority appears competent under national law, the Member States may be required to reallocate competences in the implementation process, so as to ensure that a single authority is responsible for receiving and issuing seasonal worker permits. In relation to the processing of residence permits generally, an applicant for a permit has a right of access to personal data concerning them which are processed by the national administrative authorities, in order that they may become aware of those data and to check that they are accurate and processed in compliance with EU data protection obligations. 56

Article 14 Duration of stay I. Member States shall determine a maximum period of stay for seasonal workers which shall be not less than five months and not mon: than nine months in any 12-month period. After the expiry of that period, the third-country national shall leave the territory of the Member State unless the Member State concerned has issued a residence permit under national or Union law for purposes other than seasonal work. 2. Member States may determine a maximum period of time within any 12-month period, during which an employer is allowed to hire seasonal worken. That period shall be not less than the mwmum period of stay determined pursuant to

paragraph I. Contmt mn.

I. Maximum period of stay............................................................................... II. Maximum period of employment...............................................................

I 3

I. Maximum period of stay Article 14(1) obliges transposing Member States to determine maximum periods of 1 stay for seasonal workers. The temporal scope must be not less than five months and not more than nine months within a 12-month period. It appears from the wording of the provision, which was changed from 'per calendar year' in the Commission proposal to 'within a 12-month period' in the final version of the Directive,57 that the yearly intervals are not necessarily linked to the calendar year. It is unclear, however, whether this also permits Member States to specify certain periods of stay (e.g. April to August 2016). The maximum duration of stay per year and the explicit obligation to return after 2 that period is intended to prevent overstaying of third-country seasonal workers. One of the key practical reasons that seasonal workers experience difficulties in enforcing employment rights and social benefits is the short-term or temporary nature of their stay (see further, MN 17 and MN 23 below). Yet, even though the third-country national must in principle leave the territory of the Member States upon expiry of that 55

Recital J of Directive 2011/98/1:.U. ECJ,"Y.S., C-141/12, EU:C:2014:2081. 57 Moreover, the maximum period of stay of 9 months in the final version of the Directive is longer than the six months initially envisaged by the European Commission. 56

Wiesbrockl Murphy

983

Chp. 15

Art. ts

Seasonal Workers Directive 2014/36/EU

period, the provision allows for an extended stay on the basis of other types of residence permits under national or Union law.

II. Maximum period of employment 3

In addition, Member States may decide to impose a temporal limitation on the employer for the hiring of seasonal workers. This period must at least be as long as the maximum period of stay for individual seasonal workers. For example, if seasonal workers are allowed to stay for a period of up to nine months, the Member States may only limit the employment of seasonal workers by individual employers to the same period of time. Whereas the concept of 'hiring' is not defined in the Directive, the purpose of connecting periods of stay with periods of carrying out seasonal work speaks for the factual integration of the third-country national into the business of the employer.

Article 15 Extension of stay or renewal of the authorisation for the purposes of seasonal work I. Within the maximum period referred to in Article 14( I) and provided that Articles Sor 6 are complied with and the grounds set out in point (b) of Article 8(1), Article 8(2) and, if applicable, Article 8(4) are not met, Member States shall allow seasonal worken one extension of their stay, where seasonal workers extend their contract with the same employer. 2. Member States may decide, in accordance with their national law, to allow seasonal workers to extend their contract with the same employer and their stay more than once, provided that the maximum period referred to in Article 14(1) is not exceeded. 3. Within the maximum period referred to in Article 14( l) and provided that Articles Sor 6 are complied with and the grounds set out in point (b) of Article 8(1), Article 8(2) and, if applicable, Article 8(4) are not met, Member States shall allow seasonal workers one extension of their stay to be employed with a different employer. 4. Member States may decide, in accordance with their national law, to allow seasonal workers to be employed by a different employer and to extend their stay more than once, provided that the maximum period referred to in Article 14(1) is not exceeded. 5. For the purposes of paragraphs I to 4, Member States shall accept the submission of an application when the seasonal worker admitted under this Directive is on the territory of the Member State concerned. 6. Member States may refuse to extend the stay or renew the authorisation for the purpose of seasonal work when the vacancy in question could be filled by nationals of the Member State concerned or by other Union citizens, or by third-country nationals lawfully residing in the Member State. This paragraph shall apply without prejudice to the principle of preference for Union citizens as expressed in the relevant provisions of the relevant Acts of Accession.

984

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Art. 1s

Chp. 15

7. Member States shall refuse to extend the stay or renew the authorisation for the purpose of seasonal work where the muimum duntion of stay as defined in Article 14(1) has been reached. 8. Member States may refuse to extend the stay or renew the authorisation for the purpose of seasonal work if the third-country national applies for international protection under Directive 2011/95/EU or if the third-country national applies for protection in accordance with national law, international obligations or pnctice of the Member State concerned. 9. Article 9(2) and points (b), (c) and (d) of Article 9(3) shall not apply to a seasonal worker who applies to be employed by a different employer in accordance with pangraph 3 of this Article when those provisions apply to the previous employer. 10. Grounds for extension of a short-stay visa are regulated in the relevant provisions of the Visa Code. 11. Without prejudice to Article 8(1), any decision on an application for an extension or renewal shall take account of the specific drcwnstances of the case, including the interests of the seasonal worker, and respect the principle of proportionality. Content

mn. I. Compulsory extension of stay or renewal of the authorisation ........... II. Discretionary extension of stay or renewal of the authorisation......... III. Discretion to refuse extensions of stay or renewing the authorisation (Article 15(6). (8))...........................................................................................

I 2 3

I. Compulsory extension of stay or renewal of the authorisation Article 15(1) and (3) obliges Member States to allow seasonal workers one extension of their stay if they manage to extend their work contract with the same employer or can secure a work contract with a different employer, provided that the conditions for admission are complied with and no mandatory or discretionary grounds for rejection apply. The provision that makes one extension mandatory, whilst allowing for more than one (see below MN 2) was a compromise between the European Parliament's desire to grant seasonal workers the right to change employers and the Council's opposition.>11 An extension of stay is possible only within the maximum duration of stay of between 5 and 9 months as decided upon by the Member States. By way of derogation to the rule that applications are to be submitted in the applicant's country of origin, seasonal workers cannot be required to leave the territory of the Member State when applying for an extension of their permit.

II. Discretionary extension of stay or renewal of the authorisation The Member States enjoy discretion to allow for more than one extension, as long as 2 the maximum duration of stay is respected. It is notable that the Directive does not specify that conditions for admission and grounds for refusal are equally applicable in case of a second or third extension.

WI

Fudge/Herzfeld Olsson, The EU Seasonal Workers Directive, p. 439,461.

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985

Chp. 15 Art. 16

Seasonal Workers Directive 2014136/EU

III. Discretion to refuse extensions of stay or renewing the authorisation (Article 15(6), (8)) 3

Article I 5(6) and (8) grants Member States discretion to refuse to extend the stay or renew the authorisation for the purpose of seasonal work if the vacancy concerned could be filled by a Member State national. by a legally residing third-country national or by a Union citizen, or if the seasonal worker applied for international protection under the Asylum Qualification Directive 2011/95/EU or in accordance with national law, international obligation or practice of the Member State. The provisions are identical to the discretionary grounds for refusing or withdrawing an authorisation for seasm:ial work (Articles 8(3) and 9(4)). Thus, Member States that have decided not to make use of a labour market test when granting the initial authorisation to stay may nonetheless give preference to the domestic workforce when deciding upon an extension of stay. Yet, national authorities may enjoy a more limited scope of discretion in such cases, as the seasonal worker's interests may carry more weight (see Article 15(1 l))S 9 and the Member State can reasonably be required to demonstrate why such considerations were not relevant at the time of granting the permit.

Article 16 Facilitation of re-entry I. Member States shall facilitate re-entry of third-country nationals who were admitted to that Member State as seasonal worken at least once within the previous five yean, and who fully respected the conditions applicable to seasonal workers under this Directive during each of their stays. 2. The facilitation referred to in paragraph l may include one or more measures such as: (a) the grant of an exemption from the requirement to submit one or more of the documents referred to in Articles 5 or 6; (b) the issuing of several seasonal worker permits in a single administrative ad; (c) an accelerated procedure leading to a decision on the application for a seasonal worker permit or a long stay visa; (d) priority in e:umining applications for admission as a seasonal worker, including taking into account previous admissions when deciding on applications with regard to the exhaustion of volumes of admission.

I. Mandatory facilitation of re-entry Article 16(1) obliges Member States to facilitate the re-entry of a third-country national if he/she has been admitted as seasonal worker at least one time within the previous five years and fully respected the conditions applicable to seasonal workers under the Directive during each stay. The reference to re-entry to 'that' (same) Member State indicates that Article 16 applies only to the Member State that previously admitted the third-country national concerned. In order to demonstrate that he/she has fully

" This may for example be the case if the seasonal worker has proved his or her reliability regarding obligations deriving from this Directive.

986

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Art. 11

Chp. 15

respected the conditions applicable to seasonal workers, the person concerned must have complied with all temporal and behavioural obligations connected to a previous stay, such as those enumerated in Article 9(1)-(4) of the Directive. The facilitated re-entry procedure for a subsequent season is one of the key 2 provisions of the Directive. It aims to encourage legal migration for seasonal work and to promote circular migration of seasonal workers between the EU and their home countries. Such circular migration is seen to be in the interest of Union employers in being able to rely on a more stable and already trained workforce, as well as leading to a reliable flow of remittances and transfer of skills60 and investment to third countries, thus reducing poverty and contributing to the EU's development policy Article 16(2) contains a list of possible facilitation measures, which include exempt- 3 ing the seasonal worker from the requirement to submit a certain document, issuing several seasonal worker permits at a time, accelerating the application procedure, or making it a priority during examination of applications. The provision does not, however, demand any concrete commitments from the Member States to promote circular migration. In its initial proposal, the European Commission envisaged the possibility of issuing a 'multi-seasonal worker' permit, which would have been valid for up to three subsequent seasons. 61 The current list of possible facilitation measures, on the contrary, merely constitutes a non-binding and non-conclusive list of examples. The effectiveness of this provision in encouraging circular migration thus depends entirely on the discretion of the Member States. There is no limit to the number of times that third-country workers can re-enter a 4 country for the purpose of seasonal work. This carries the risk of seasonal workers being granted a succession of seasonal permits, without ever obtaining the possibility to apply for a long-term residence permit or another more secure residence status. Overall, the model of short-term stays coupled with re-entry conditions provided for in the Seasonal Workers Directive stands in contrast to the more flexible, migrant-led approach to circular migration enshrined in the Blue Card Directive 2009/50/EC.62

Article 17 Sanctions against employers l. Member States shall provide for sanctions against employers who have not fulfilled their obligations under this Directive, including the exclusion of employers who are in serious breach of their obligations under this Directive from employing seasonal workers. Those sanctions shall be effective, proportionate and dissuasive. 2. Member States shall ensure that, if the authorisation for the purpose of seasonal work is withdrawn pursuant to Article 9(2) and points (b), (c) and (d) of Article 9 (3), the employer shall be liable to pay compensation to the seasonal worker in accordance with procedures under national law. Any liability shall cover any outstanding obligations which the employer would have to respect if the authorisation for the purpose of seasonal work had not been withdrawn.

"" Recital 34. 61 Commission Proposal, COM(2010) 379 final. 61 Vankova. Circular Migration and the Rights of Migrant Workers in Central and Ea.stem Europe: The EU Promise of a Triple Win Solution (Springer, 2019), p. 72.

Wiesl,rock/Murphy

987

Chp. 15

Seasonal Workers Directive 2014/36/EU

Art. 11

3. Where the employer is a subcontractor who has infringed this Directive and where the main contractor and any intermediate 111bcontrador have not undertaken due diligence obligations as defined by national law, the main contractor and any intermediate subcontractor may: (a) be subject to the sanctions referred to in paragraph I; (b) in addition to or in place oftbe employer, be liable to pay any compensation due to the seasonal worker in accordance with paragraph 2; (c) in addition to or in place of the employer, be liable to pay any back payments due to the seasonal worker under national law. Member States may provide for more stringent liability rules under national law. Content mn.

I. Sanctions for employers .............................................................................. .. II. Liability and compensation ..........................................................................

3

III. Sanctions for subcontractor as employers.................................................

6

I. Sanctions for employers Article 17( I) obliges Member States to install a sanction mechanism for employen not fulfilling their obligations laid down in this Directive. A serious breach of obligations shall necessarily entail the exclusion of employers from employing seasonal workers under the Directive. What constitutes a 'serious breach' is not defined. It may cover cases where employers deliberately and/or systematically breach their obligations or verifiably had or have no intention of complying with them. Obligations for the employers arise amongst others from Article 9(2) and (3)(b)(c) and (d). The listing of these provisions in para 2 of Article 17 may be seen as an indication that an infringement of such obligations constitutes a serious breach. For instance, the non-punctual payment of the worker could be considered a serious breach, in particular where such practice is part of the business model of the employer or if he/she systematically takes advantage of the vulnerable position of the worker(s). 2 In line with general EU law, the Directive leaves the choice of types of sanctions to the Member States, respecting the autonomy of Member States to establish their own penalties (civil, criminal, administrative, restorative, pecuniary or non-pecuniary). When devising sanctions the Member States may employ measures provided for in Article 7 of the Employers Sanctions Directive 2009/52/EC,63 including exclusion from entitlement to public benefits, aid or subsidies, recovery of such benefits or even temporary or permanent closure of the company or withdrawal of a business license. The Directive therefore does not explicitly request Member States to criminalise the breach of an obligation under this Directive or to sharpen already existing criminal norms. It must, however be guaranteed that the sanctions are effective, dissuasive and proportionate in line with CJEU case law. The challenges of ensuring the effectiveness of sanctions in terms of reducing the vulnerability of the worker are shown by the experience with similar provisions present in the Employers Sanctions Directive 2009/ 52/EC, which have either not been transposed by the Member States into their national laws, or have remained ineffective. 64

63

Recital 36.

"'Zoeteweij-Turhan, The Seasonal Workers Directive, p. 36.

988

Wiesbrock/Murphy

Art. 11

Chp. 15

II. Liability and compensation Applicable sanctions must include liability of the employer to pay compensation to 3 seasonal workers whose authorisation for seasonal work is withdrawn on grounds related to the misconduct of the employer (see Articles 9(2) and 9(3)(b-d)). The provision does not only prescribe the existence of the compensation claim, but also its effective legal enforcement The necessary mechanisms should be in place to enable seasonal workers to obtain the compensation to which they are entitled even if they are no longer on the territory of the Member State in question. This is particularly important for seasonal workers in their position as temporary migrants and replicates the approach of the Employers Sanctions Directive 2009/SUEC. 'Outstanding obligations' covered by the compensation are those the employer would have to comply with if the authorisation had not been withdrawn, which may include payments for hypothetically performed work by the employee. It is questionable whether the provisions on liability and compensation are suffi- 4 cient to prevent abuse of seasonal workers in the Member States. The provisions in the Directive fail to address the problem that it is often extremely difficult in practice for seasonal workers to receive the compensation they are entitled to. Temporary workers often lack the necessary knowledge and awareness of their rights and are reluctant to start a procedure against their own employer. Moreover, the temporariness of their stay and the complicated nature of complaint procedures in many Member States often constitute barriers for initiating an action against abusive employers. In addition, liability to pay compensation to the seasonal worker is dependent on 'procedures under national law' and the effectiveness of this provision may therefore vary between Member States. As highlighted by the European Commission within the context of an evaluation of the 5 Employer Sanctions Directive 2009/52/EC.65 protecting third-country nationals from abusive and hazardous working conditions requires not only complaint procedures, but also an effective system of inspections. As emphasised by the Commission, 'without proper inspections. any sanction may remain a theoretical threat'. It is questionable whether the Directive's provisions on monitoring (Article 24), which require Member States to monitor and sanction infringements of this Directive, but provide for systematic inspections only in accordance with national law and practice provide sufficient safeguards to prevent abuse (see below Article 24).

III. Sanctions for subcontractor as employers In t,he case of subcontracting, the chain of liability for infringements under the 6 Directive extends to the main contnctor as well as intermediate sub-contractors if they have failed to comply with due diligence obligations under national law. The entrepreneurial risk to employ seasonal workers is therefore partially extended to any contractual party that directly or indirectly profits from the workers' performance. Such parties can be subject to employers' sanctions as well as being liable to pay compensation and back payments to the seasonal worker. The definition of due diligence obligations is left to Member State legislation and national practice.

•5

Commission Communication, COM(2014) 286 final, p. 9.

WiesbrocklMurphy

989

Chp. 15

Art. 1s

Seasonal Workers Directive 2014/36/EU

Article 18

Procedural safeguards I. The competent authorities of the Member State shall adopt a decision on the application for authorisation for the purpose of seasonal work. The competent authorities shall notify the decision to the applicant in writing, in accordance with the notification procedures under national law, as soon as possible but not later than 90 days from the date on which the complete application was submitted. 2. In the case of an application for an extension of stay or for the renewal of the authorisation pursuant to Article 15, Member States shall take all reasonable steps to ensure that the seasonal worker is not obliged to interrupt his or her employment relationship with the same employer, or prevented from changing employer, due to on-going administrative procedures. Where the validity of the authorisation for the purpose of seasonal work expires during the procedure for extension or renewal, in accordance with their national law, Member States shall allow the seasonal worker to stay on their territory until the competent authorities have taken a decision on the application, provided that the application was submitted within the period of validity of that authorisation and that the time period referred to in Article 14(1) has not expired. Where the second subparagraph applies, Member States may, inter alia, decide to: (a) issue national temporary residence permits or equivalent authorisations until a decision is ta.ken; (b) allow the seasonal worker to work until that decision is ta.ken. During the period of examination of the application for extension or renewal, the relevant provisions of this Directive shall apply. 3. Where the information or documentation supplied in support of the application is incomplete, the competent authorities shall notify the applicant within a reasonable period of the additional information that is required and set a reasonable deadline for providing it. The period referred to in paragraph I shall be suspended until the competent authorities have received the additional information required. 4. Reasons for a decision declaring inadmissible an application for authorisation for the purpose of seasonal work or rejecting an application for authorisation for the purpose of seasonal work or refusing an extension of stay or renewal of the authorisation for the purpose of seasonal work shall be given in writing to the applicant. Reasons for a decision withdrawing the authorisation for the purpose of seasonal work shall be given in writing to both the seasonal worker and, if provided for in national law, the employer. 5. Any decision declaring inadmissible an application for authorisation for the purpose of seasonal work or rejecting the application, refusing an extension of stay or renewal of an authorisation for the purpose of seasonal work or withdrawing an authorisation for the purpose of seasonal work shall be open to legal challenge in the Member State concerned, in accordance with national law. The written notification shall specify the court or administrative authority with which an appeal may be lodged and the time-limit for lodging the appeal. 6. Procedural safeguards concerning short-stay visas are regulated in the relevant provisions of the Visa Code.

990

Wiesbrock/Murphy

Art. 19

Chp. 15

Content

mn. I. Procedural safeguards.................................................................................... IL Right to stay during an extension or renewal procedure......................

I 2

I. Procedural safeguards The procedural safeguards in the Seasonal Workers Directive are similar to those to be found in other EU migration law instruments, such as the Blue Card Directive 2009/50/ EC and the Students and Researchers Directive (EU) 2016/801. As in the case ofhighlyskilled migrants, national authorities must take a decision on admission within 90 days and have to inform the applicant in case of incomplete information or insufficient supporting documents. The Commission's proposal for a fast-track procedure, which would have required a decision on an application within 30 days, was not adopted in the final version of the Directive. Any negative decision regarding initial admission or renewal/extension of stay has to be issued in writing and is open to appeal according to national procedures.

II. Right to stay during an extension or renewal procedure A seasonal worker who makes use of his right to extend his stay or have his 2 authorisation renewed must be permitted to stay in the Member State concerned during the procedure for extension or renewal. At first sight it appears from the wording of Article 18(2) that the Member States are not obliged to allow the seasonal worker to continue working until a decision is reached, since this is only mentioned as one of the possible measures that Member States 'may' take during the period of examination of the application for renewal or extension. The Directive does, however, specify that the Member States are obliged to 'take all reasonable steps' to ensure that the third-country worker concerned can continue working with the same employer without interruption or change to a different employer without delays caused by administrative procedure. Hence, in most scenarios national authorities will be obliged to grant seasonal workers not only the right to stay but also the right to continue working during the procedure of renewal or extension.

Article 19 Fees and costs I. Member States may require the payment of fees for the handling of applications in accordance with this Directive. The level of such fees shall not be disproportionate or excessive. Fees for short-stay visas are regulated in the relevant provisions of the Schengen acquis. Where those fees are paid by the third-country national, Member States may provide that they are entitled to be reimbursed by the employer in accordance with national law. 2. Member States may require employers of seasonal workers to pay for: (a) the cost of travel from the seasonal workers' place of origin to the place of work in tlie Member State concerned and the return journey;

Wiesbrock/Murphy

991

Chp. 15

Art. 20

Seasonal Workers Directive 2014/36/EU

(b) the cost of sickness insurance referred to in point (b) of Article 5(1) and point

(b) of Article 6(1). When paid by the employers, such costs shall not be recoverable from the seasonal workers. The provisions on fees and costs related to the seasonal employment constitute a compromise between the intention to protect migrant workers and prevent their exploitation, whilst at the same time accommodating Member States' interests in covering administrative costs without placing burdensome conditions on the employer. 66 During the negotiation of the Directive, the European Parliament argued for a provision which would have imposed the obligation to pay for application fees upon employers rather than employees. 67 The Council could, however, not agree on such a requirement and the final version of the Directive therefore leaves it to the discretion of the Member States whether or not to charge fees for the handling of applications and to require the employer to reimburse the employee for such costs. In addition, employers may be required to reimburse the workers for travel costs and sickness insurance premiums. Considering the tendency of Member States to use high fees as a mechanism to deter the entry of third-country nationals, it is unlikely that many Member States will make use of the option to free seasonal workers from the obligation to pay fees or to place that obligation on employers. In any case, as a general requirement of EU law and in light of the spirit and purpose of the Directive, any fees to be charged must be proportionate and may not be excessive. 68 This is also specified in Article 19( I) of the Directive.

Article 20 Accommodation 1. Member States shall require evidence that the seasonal worker will benefit from accommodation that ensures an adequate standard of living according to national law and/or practice, for the duration of his or her stay. The competent authority shall be informed of any change of accommodation of the seasonal worker. 2. Where accommodation is arranged by or through the employer: (a) the seasonal worker may be required to pay a rent which shall not be excessive compared with his or her net remuneration and compared with the quality of the accommodation. The rent shall not be automatically deducted from the wage of the seasonal worker; (b) the employer shall provide the seasonal worker with a rental contract or equivalent document in which the rental conditions of the accommodation are clearly stated; (c) the employer shall ensure that the accommodation meets the general health and safety standards in force in the Member State concerned. The accommodation requirement in Article 20 is linked to Article 6(l)(c), which requires evidence that the seasonal worker will have adequate accommodation as a .. Council Doc. 15033/13 of 25 October 2013. 67 Council Doc. 6651/ l 2 of 27 February 2012 . .. In Case: C-508/10, the CJEU held that the excessive and disproportionate administrative charges applied to third-country nationals seeking long-term term residence in the Netherlands amounted to an obstacle to the exercise of rights conferred by Directive 2003/109/EC concerning the status of thirdcountry nationals who are long-term residents and was therefore not in conformity with the Directive. EC,, Commission v. Netherlands, C-508/10, ECLl:EU:C:2012:243.

992

Wiesbrockl Murphy

Art. 22

Chp. 15

condition for admission. Inadequate living conditions of temporary migrant workers have been a concern in many Member States. Especially in the agricultural sector, employers often provide poor quality accommodation to seasonal workers and in many cases deduct the rent from the wages of the employees. Such practices are no longer possible under the Directive, which requires Member States to ensure that seasonal workers receive adequate accommodation. The definition of 'accommodation that ensures an adequate standard of living' is, however, open to widely divergent interpretation across the Member States.69 The Commission has noted that the Covid-19 pandemic 'gave more visibility' to the precarious living conditions of seasonal workers, and 'in some cases, exacerbated them', raising questions about the effectiveness of the legal provisions. 70 More explicitly with regard to employers who arrange accommodation, Article 20(2) prohibits overcharging seasonal workers for the accommodation provided and does not allow for an automatic deduction of rent from wages. Moreover, employers must respect national health and safety standards and are obliged to provide seasonal workers with a rental contract. However, the Directive does not address the issue that employer-organised accommodation, especially in the agricultural sector, is often located on the premises of the employer, placing the third-country worker in a vulnerable position of dependency.

Article 21 Placement by public employment services Member States may determine that the placement of seasonal workers shall only be carried out by public employment services. Article 21 allows Member States to place the exclusive competence for the placement of seasonal workers in the hands of public employment services. This mechanism of control has been in place in several Member States, such as Germany and Austria, prior to the adoption of the Directive and is primarily aimed at protecting the rights of migrant workers and preventing exploitation.

CHAPTER IV RIGHTS Article 22 Rights on the basis of the authorisation for the purpose of seasonal work During the period of validity of the authorisation referred to in Article 12, the holder ihall enjoy at least the following rights: (a) the right to enter and stay in the territory of the Member State that issued the authorisation; (b) free access to the entire territory of the Member State that issued the authorisation in accordance with national law; (c) the right to exercise the concrete employment activity authorised under the authorisation in accordance with national law. "" European Migration Network. Synthesis Repon, p.32. '" Commission Communication. C(2020) 2051, p. I.

Wiesbrockl Murphy

993

Chp. 15

Art. 23

Seasonal Workers Directive 2014136/EU

Article 22 embodies the basic rights attached to an authorisation of seasonal work, namely the right to enter, stay and freely move within the territory of a Member State and to carry out a specific employment activity. In addition to free movement within the territory of the Member State that issued the authorisation, seasonal ·workers may move freely between Member States applying the Schengen acquis in full.7 1 Reflecting Member State control over which sectors they will open up to seasonal workers, the Directive makes no provision for intra-EU mobility of seasonal workers, in contrast to the ICT Directive 2014/66/EU and the Blue Card Directive 2009/50/EC. 72

Article 23 Right to equal treatment I. Seasonal workers shall be entitled to equal treatment with nationals of the host Member State at least with regard to: (a) terms of employment, including the minimum working age, and working conditions, including pay and dismissal, working hours, leave and holidays, as well as health and safety requirements at the workplace; (b) the right to strike and take industrial action, in accordance with the host Member State's national law and practice, and freedom of association and affiliation and membership of an organisation representing workers or of any organisation whose members are engaged in a specific occupation, including the rights and benefits conferred by such organisations, including the right to negotiate and conclude collective agreements, without prejudice to the national provisions on public policy and public security; (c) back payments to be made by the employers, concerning any outstanding remuneration to the third-country national; (d) branches of social security, as defined in Article 3 of Regulation (EC) No 883/2004; (e) access to goods and services and the supply of goods and services made available to the public, except housing, without prejudice to the freedom of contract in accordance with Union and national law; (0 advice services on seasonal work afforded by employment offices; (g) education and vocational training; (h) recognition of diplomas, certificates and other professional qualifications in accordance with the relevant national procedures; (i) tax benefits, in so far as the seasonal worker is deemed to be resident for tax purposes in the Member State concerned. Seasonal workers moving to a third country, or the survivors of such seasonal workers residing in a third-country deriving rights from the seasonal worker, shall receive statutory pensions based on the seasonal worker's previous employment and acquired in accordance with the legislation set out in Article 3 of Regulation (EC) No 883/2004, under the same conditions and at the same rates as the nationals of the Member States concerned when they move to a third country. 2. Member States may restrict equal trabnent: (i) under point (d) of the first subparagraph of paragraph I by excluding family benefits and unemployment benefits, without prejudice to Regulation (EU) No 1231/2010;

71

Recital 42. "Costello/Freedland, Seasonal Workers, p. 14.

994

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Art. 23

Chp. 15

(ii) under point (g) of the first subparagraph of paragraph I by limiting its application to education and vocational training which is directly linked to the specific employment activity and by excluding study and maintenance grants

and I011118 or other grants and loans; (iii) under point (i) of the first subparagraph of paragraph 1 with respect to tax benefits by limiting its application to cases where the registered or usual place of residence of the family members of the seasonal worker for whom he/she claims benefits, lies in the territory of the Member State concerned. 3. The right to equal treatment provided for in paragraph I shall be without prejudice to the right of the Member State to withdnw or to refuse to extend or renew the authorisation for the purpose of seasonal work in accordance with

Articles 9 and 15. Content

mn. I. General Remarks and Drafting History..................................................... II. Right to equal treatment ............................................................................... I. Social security benefits............................................................................... 2. Back payments and pension rights......................................................... 3. No right to family reunification.............................................................. 4. Funher restrictions of equal treatment .................................................

I

4 5 6 8 9

I. General Remarks and Drafting History As a consequence of the sectoral approach to labour migration, the degree of I application of equality of treatment in EU migration law is tied to the skills level of migrants, with more rights afforded to skilled than less skilled third-country nationals. A comparison of the equal treatment provisions in the Article 14 of the Blue Card Directive 2009/50/EC with those in the Seasonal Workers Directive, however, reveals the success of the European Parliament during the negotiation process in securing a set of robust equal treatment guarantees in the Seasonal Workers Directive.73 Considering the especially vulnerable situation of third-country national seasonal 2 workers and the temporary nature of their assignment, there is a need to provide effective protection of their rights and to check regularly for compliance with the principle of equal treatment and the concept of the same pay for the same work in the same workplace. 74 The preamble specifically refers to the applicability of international labour law instruments (the European Social Charter and the European Convention on the Legal Status of Migrant Workers) as well as national arbitration decisions, collective agreements and contracts in addition to the relevant legislative, administrative and regulatory provisions. 75 In the Commission proposal. Article 16(1) did not provide for equal treatment with 3 nationals of the host Member States as regards working conditions. This was criticised by the ILO, which noted that !LO Conventions No 97 and No 143 espouse the equal treatment principle between migrant workers and nationals in respect of working conditions, and employment and occupation. Equal treatment in employment and occupation is also one of the !LO fundamental principles and rights at work, and the subject of a core ILO legally binding instrument, namely the Discrimination (Employ7J

Stt generally, Fudge/Herzfeld Olsson, The EU Seasonal Workers Directive, p. 439.

74

Recital 43. Recitals 44 and 45.

7 ;

Wiesbrock/Murphy

995

Chp. 15 Art.

Seasonal Workers Directive 2014136/EU

23

ment and Occupation) Convention, 1958 (No 111) which addresses non-discrimination with respect to inter alia conditions of employment and has been ratified by all 28 EU Member States. 76 The failure to include equal treabnent with respect to working conditions in the Commission proposal was highlighted as being prima facie incompatible with Article 15(3) of the Charter which provides that TCNs authorised to work in the EU are 'entitled to working conditions equivalent to those of citizens of the Union'.77 The right to equal treatment was, however, considerably strengthened by amendments proposed by the European Parliament, which introduced most of the equal treabnent rights listed below. The EU political process thus resulted in the inclusion of more worker-protective measures in the Directive than in the case of the JCT Directive 2014/66/EU, for example which assimilates the worker to the position of a posted worker. 78

II. Right to equal treatment 4

Under the final version of the Directive, seasonal workers enjoy equal treatment rights that are very similar to those granted to highly-skilled workers under the Blue Card Directive 2009/50/EC. They must be granted equal treatment with nationals with regards to terms of employment, minimum working age, working hours. leave and holidays. the right to strike and to take industrial action, access to public goods and services, education and vocational training. recognition of diplomas and other professional qualifications, tax benefits (provided that the seasonal worker is deemed to be resident for tax purposes) and advisory services offered by employment services regarding seasonal work.

1. Social security benefits 5

Seasonal workers must be granted equal treatment with regards to those branches of social security that are listed in Article 3 of the Social Security Coordination Regulation (EC) No 883/2004, including sickness benefits, maternity and equivalent paternity benefits, invalidity benefits, old-age benefits, survivors' benefits. benefits in respect of accidents at work and occupational diseases, death grants and pre-retirement benefits. Member States may, however, refuse seasonal workers equal treatment with nationals in respect of family and unemployment benefits. This restriction was introduced upon insistence of the Council and is justified by referring to the temporary nature of the stay of seasonal workers. 19 The Directive therefore derogates from the two ILO migrant workers conventions, which provide for equal treatment with respect to unemployment and family responsibilities. 80 Given that seasonal workers do not enjoy a right to family reunification, the permitted derogation from equal treatment in respect of family benefits is nonetheless unsurprising. More generally, it should be noted that case-law indicates that derogations from the principle of equal treatment can be relied on only if the authorities in the Member State concerned have stated clearly that they intended to rely on them. 81

1• 77

Council doc. 9564/11 of 2 May 2011. Peers et al., EU Immigration and Asylum Law, p. 181. 71 Costello/Freedland, Seasonal Workers, p. 2. " Recital 46. 80 Fudge/Herzfeld Olsson, The EU Seasonal Workers Directive, p. 438, 458. 9 1 See ECJ, Kamberaj, C-571110, EU:C:2012:233, paras 86 and 87; ECJ, Martina Silva, C-449/16, EU: C:2017:485, para 29; ECJ, INPSIV.R~ C-303/19, EU:C:2020:958, para 23.

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Wiesbrodc/Murphy

Art. 23 Chp. 15

2. Back payments and pension rights

The inclusion of a right to back payment as one of the enumerated categories 6 requiring equal treatment was the result of an amendment from the European Parliament. Recital 36 of the preamble provides that the necessary mechanisms should be in place to enable seasonal workers to obtain the compensation to which they are entitled even if they are no longer on the territory of the Member State in question. This is similar to the requirement articulated in Article 6(4) of the Employers Sanction Directive 2009/52/EC. In addition to any outstanding back payments, the Directive ensures that seasonal 7 workers moving to a third country as well as their survivors will not lose their entitlements to receive statutory pensions based on previous employment and acquired in accordance with Article 3 of the Social Security Coordination Regulation (EC) No 883/ 2004, however only insofar as this is provided for on behalf of nationals of the Member State involved and at the same rate applied to them. This right to 'export' pensions is an important provision given that it also applies in situations where there is no bilateral social security agreement between the States involved. However, there are inconsistencies between the language used in the legal migration Directives in relation to the export of pensions. The ICT Directive 2014/66/EU refers to 'the payment of old age, invalidity and death statutory pensions', the Blue Card Directive 2009/50/EC to 'statutory pensions in respect of old age' and the Seasonal Workers' Directive to 'statutory pensions based on previous employment'. In contrast, the Long-Term Residents Directive 2003/109/EC contains no provisions on the right to export pensions to a third country. 3. No right to family reunification

Article 23(1), in particular the provisions contained in Article 23(1)(a), (b), (g) and 8 (h) are very similar and sometimes identical to the corresponding provisions in the Blue Card Directive 2009/50/EC. However, the rights of seasonal workers differ from those of highly skilled workers in one important respect: the Seasonal Workers Directive does not provide for a right to family reunification. 82 The absence of the right to family reunification was criticised by a coalition of NGOs. 83 One justification for the absence of a right to family reunification from the Directive, apart from the temporary nature of seasonal workers' stay, could be the aim stated in recital 7 of the preamble to prevent overstaying and to prevent temporary stay from becoming permanent. It also clearly illustrates the circular migration aspect of the Directive. As Verschueren notes, 'Further integration into the society of the host State is dearly not what this directive aims at.' 84 More broadly, potential gendered implications of the Directive and the exclusions from equal treatment do not seem to have been considered.85 It is also worth noting that seasonal workers are the only category of labour migrant excluded from the scope of the Family Reunification Directive 2003/86/EC.

4. Further restrictions of equal treatment In addition to the absence of a right to family reunification and no mandatory equal 9 treatment in terms of family and unemployment benefits, the Member States may ll See recital 46 . ., Joint NGO Statement, EU Seasonal Migrant Workers' Directive: Full Respect of Equal Treatment Necessary; 20 April 201 I. 84 Verschueren, Employment and Social Security Rights, p. 390. 15 See generally Palumbo/Sciurba, The Vulnerability to Exploitation.

Wiesbrockl Murphy

997

Chp. 15

Art. 24

Seasonal Workers Directive 2014/36/EU

limit the application of equal treatment in relation to education and vocational training as well as tu benefits. These limitations are supposed to be justified on grounds of the temporary nature of the seasonal workers' stay. 86 Finally, under the definition of seasonal worker in Article 3(b), the seasonal worker 'retains his or her principal place of residence in a third country'. This could potentially restrict access to some social benefits under the national legislation of the Member State, including health care. 87

Article 24 Monitoring, assessment and inspections 1. Member States shall provide for measures to prevent possible abuses and to sanction infringements of this Directive. Measures shall include monitoring, assessment and, where appropriate, inspection in accordance with national law or administrative practice. 2. Member States shall ensure that services in charge of inspection of labour or competent authorities and, where provided for under national law for national worken, organisations representing workers' interests have access to the workplace and, with the agreement of the worker, to the accommodation.

Article 24 contains an obligation for Member States to provide for measures preventing abuse and to sanction infringements of the Directive. This requirement is linked to Article 17, which provides for sanctions of the employer. Even though the monitoring and sanctioning of employers is a key requirement for safeguarding the rights of seasonal workers, the provision fails to impose any specific obligations on national authorities in this respect. Even though possible measures must include monitoring and assessment and may include inspections, such measures are to be applied 'in accordance with national law or administrative practice'. The effectiveness of monitoring and inspection mechanisms will therefore largely depend on the discretion of the Member States. 2 The European Parliament pushed for more concrete obligations of the Member States in terms of monitoring and inspections, but was ultimately unsuccessful. It proposed to include a provision that Member States shall ensure that at least 10 % of employers offering seasonal employment established on their territory are subject to inspections every year, as well as a paragraph providing that the selection of employers to be inspected shall be based on a risk assessment to be drawn up by the competent authorities in the Member States taking into account factors such as the sector in which a company operates and any past record of infringement. The latter condition, which is similar to Article 14 of the Employer Sanctions Directive 2009/52/EC, is now only to be found in the preamble to the Directive (recital 49). In the context of the COVID-19 pandemic, the Commission asked Member States to strengthen the field inspections necessary to ensure the proper application of the occupational safety and health norms in respect of seasonal workers. 88 Similarly, the Council has called on Member States to 'evaluate whether the inspections currently in place are sufficient to enforce the existing EU and national legislation'.89 l

116

Recital 46. Verschueren, Employment and Social Security Rights. p. 390. 88 Commission Communication, C(2020) 2051, p. 5. .. Council doc. 11726/2/20 of 9 October 2020. p. 8. •7

998

W iesbrocklMurphy

Art. 2s

Chp. 15

Moreover, the Directive does not prescribe an active role for trade unions or other 3 organisations representing workers' rights in the process of monitoring and assessment. It is merely provided that organisations that enjoy such competences under national law should be granted access to the workplace and the accommodation with the workers' consent. The suggestion of the European Economic and Social Committee that the social partners, as key players in the national labour market, should be intimately involved in monitoring activities 90 was thus not taken up in the final version of the Directive.

Article 25 Facilitation of complaints l. Member States shall ensure that there are effective mechanisms through which seasonal worken may lodge complaints against their employers directly or through third parties which have, in accordance with the criteria laid down by their national law, a legitimate interest in ensuring compliance with this Directive, or through a competent authority of the Member State when provided for by national law. 2. Member States shall ensure that third parties which have, in accordance with the criteria laid down by their national law, a legitimate interest in ensuring compliance with this Directive, may engage either on behalf of or in support of a seasonal worker, with his or her approval, in any administrative or civil proceedings, eiu:luding the procedures and decisions concerning short-stay visas, provided for with the objective of implementing this Directive. 3. Member States shall ensure that seasonal workers have the same access as other workers in a similar position to measures protecting against dismissal or other adverse treatment by the employer as a reaction to a complaint within the undertaking or to any legal proceedings aimed at enforcing compliance with this Directive.

Article 25 obliges Member States to put in place effective mechanisms through which seasonal workers may seek legal redress and lodge complaints directly or through relevant third parties such as trade unions or other associations. Such mechanisms are considered necessary to address situations where seasonal workers are unaware of the existence of enforcement mechanisms or hesitant to use them in their own name, out of fear of possible consequences.~ 1 This requirement, which mirrors an almost identical provision in the Employer Sanctions Directive 2009/52 (Article 13(1 )), was not contained in the original Commission proposal, which was only directed at third parties (Article 13(2)), but introduced as an amendment by the Parliament. Moreover, the Member States must give third parties with a legitimate interest the 2 possibility to support seasonal workers in administrative or civil proceedings, except for procedures and decisions concerning short-stay visas. In the case of short-stay visas, the procedural safeguards are governed by the relevant provisions of the Schengen acquis. 92 Seasonal workers should also have access to judicial protection against victimisa- 3 lion as a result of a complaint being made. 93 They must therefore be granted access to ""EESC opinion doc. SOC/392 of 8 April 201 I. 91 Recital 50. •i Recital 38. •i Recital 50.

Wiesbrock/Murphy

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Chp. 15

Seasonal Workers Directive 2014/36/EU

Art. 26

measures protecting against dismissal and other adverse treatment by the employer in retaliation to a complaint or any legal proceedings aimed at enforcing compliance with the Directive.

CHAPTERV FINAL PROVISIONS Article 26 Statistics I. Member States shall communicate to the Commission statistics on the number of authoruations for the purpose of seasonal work issued for the fint time and, as far as possible, on the number of third-country nationals whose authorisation for the purpose of seasonal work has been extended, renewed or withdnwn. Those statistics shall be disaggregated by citizenship, and as far as possible by the period of validity of the authorisation and the economic sector. 2. The statistics referred to in paragraph l shall relate to reference periods of one calendar year and shall be communicated to the Commission within six months of the end of the reference year. The first reference year shall be 2017. 3. The statistics referred to in paragraph I shall be communicated in accordance with Regulation (EC) No 862/2007 of the European Parliament and of the Coundi< 21 l.

Article 27 Reporting Every three years, and for the fint time no later than 30 September 2019, the Com.mission shall submit a report to the European Parliament and to the Council on the application of this Directive in the Member States and shall propose any amendments necessary.

Article 28 Transposition I. Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by 30 September 2016. They shall forthwith communicate the text of those measures to the Commission. When Member States adopt those measures, they shall contain a reference to this Directive or be accompanied by such a reference on the occasion of their official publication. Member States shall determine how such reference is to be made. 2. Member States shall communicate to the Commission the text of the main provisions of national law which they adopt in the field covered by this Directive.

cm Regulation (EC) No 862/2007 of the European Parliament and of the Council of 11 July 2007 on Community statistics on migration and international protection and repealing Council Regulation (EEC) No JI 1/76 on the compilation of statistics on foreign workers (OJ L 199, Jl.7.2007, p. 2J).

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Art. 30

Chp. 15

Article 29 Entry into force This Directive shall enter into force on the day following that of its publication in the Official Journal of the European Union.

Article 30 Addressees This Directive is addressed to the Member States, in accordance with the Treaties.

Wiesbrock/Murphy

100)

Chapter 16. Intra-Corporate Transfer Directive 2014/66/EU Select Blbliographr- Bayreuther, 'Arbeitsrecht im Richtlinienvorschlag zur konzeminternen Versendung von Drittstaatsangehorigen (ICT-Richtlinie)', l.eitschrift fur europaisches Sozial- und Arbeitsrecht (2012), p. 405-410; Brinkmann, 'Gleichbehandlung von Drittstaatsangehorigen nach den EU-Migrationsrichtlinien', in: Beichel-Benedetti/)anda (eds), Hohenheimn- Horizonte. Festschrift for K/aw Barwig (Nomos, 2018), p.99-115; Janda, 'Zugang zu Sozialleistungen rur Drittstaatsangehorige', in: Wollenschlager (ed), Enzyklopddie Europarecht, Band X: Europiii.schn- Freizugiglceitsraum. Unionsburgerschaft und Migrationsrecht, 2nd edn (Nomos, 2020), § 25; Klaus, 'Die ICT-Richtlinie - Ende einer europiii.schen Odyssee', l.eitschrift fur Auslanderrecht (2015), p. 1-12; Lutz, Transposition of the ICT Directive 2014166/EU: Perspective of the Commission', in: Minderhoud/de Lange (eds), The Intra Corporate Transferee Directive (Wolf, 2018), p.19-34; Peers, 'Legislative Update: EU Immigration and Asylum Competence and Decision-Malting in the Treaty of Lisbon', E)ML 2008 (IO), p. 219-247; Tottos, 'Negotiations in the Council', in: Minderhoud/de Lange (eds), The Intra Corporate Transferee Directive (Wolf, 2018), p. 5-18; Verschueren, 'Employment and Social Security Rights of Third-Country Labour Migrants under EU Law. An Incomplete Patchwork of Legal Protection', EJML 18 (2016), p. 373-408; Verschueren, The Role of Employment and Social Security Rights in the Intra-Corporate Transfer Directive', in: Minderhoud/de Lange (eds), The Intra Corporate Transferee Directive (Wolf, 2018), p. 35-54; von Harbou, 'Arbeits- und Aushildungsmigration', in: Wollenschlli.ger (ed), Enzylclopiidie Europarecht, Band X: Europiiischn- Freizi.igigkeitsraum. Unionsburgerschaft und Migrationsrecht, 2nd edn (Nomos, 2020), § 18. Note that literature in the selected bibliography will be mentioned in an abbreviated version in the text below, referring to the authors(s) and a short title only.

Directive 2014/66/EU of the European Parliament and of the Council of 15 May 2014 on the conditions of entry and residence of third-country nationals in the framework of an intra-corporate transfer Official Journal L 157, 27/05/2014, p. 1-22 THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on the Functioning of the European Union, and in particular points (a) and (b) of Article 79(2) thereof, Having regard to the proposal from the European Commission, After transmission of the draft legislative act to the national parliaments,

Having regard to the opinion of the European Economic and Social Committee">, Having regard to the opinion of the Committee of the Regions< 2>, Acting in accordance with the ordinary legislative procedure(ll, Whereas: (

... )

HAVE ADOPTED THIS DIRECTIVE:

OJ C 218, 23.7.2011, p. IOI. C 166, 7.6.201 I, p. 59. 1i1 Position of the European Parliament of 15 April 2014 (not published in the Official Journal) and decision of the Council of 13 May 2014. 01

121 OJ

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Art. I

Chp. 16

CHAPTER I GENERAL PROVISIONS

Article 1 Subject-matter This Directive lays down: (a) the conditions of entry to, and residence for more than 90 days in, the territory of the Member States, and the rights, of third-country nationals and of their family members in the framework of an intra-corporate transfer; (b) the conditions of entry and residence, and the rights, of third-country nationals, referred to in point (a), in Member States other than the Member State which first grants the third-country national an intra-corporate transferee permit on the basis of this Directive. Content mn. I II. Drafting history of the Directive................................................................. 5

I. General remarks and purpose of the Directive........................................

I. General remarks and purpose of the Directive Article I offers a general description of the Directive's basic content, i.e. legal immigration of third-country nationals and their family members into the EU, without, however, containing any details on the particular nature of its framework, the intracorporate transfer. The article rather reflects the Directive's legal basis, Article 79(2)(a) and (b) TFEU, 1 and delimits its scope from the EU visa regime by determining that only transfers for more than 90 days are covered. It becomes evident only from other provisions, such as the complex definition of an 2 'intra-corporate transfer' in Article 3(b) or the numerous mandatory admission criteria in Article S( I), that this Directive covers a very specific part of labour m.igration: 2 it merely concerns the temporary migration (cf. Recital 7) of managers, specialists and trainee employees of branches and subsidiaries of multinational corporations into and, where applicable, within the EU. 3 It had been found that, as a result of the globalisation of business, such migration had 3 increased over the years and that it was hampered by the complexity and diversity of the rules in the EU Member States, in particular regarding work permit requirements, intraEU mobility and family reunification. By setting up a harmonised legal framework, this Directive's purpose is to facilitate intra-corporate transfers and thereby to boost the competitiveness of the EU economy. 4 ' For a discussion on the Directive's correct legal base see Peers/Guild/Tomkin, EU Immigration and Asylum Law (Martinus Nijjoff, 2012), p. 105-106. 'Cf. von Harbou, in Wollenschlager (ed), Enzyklopadie Europarecht, Band X. § 18, para 56. ' Thus, the Directive is another example of the sectoral approach in EU immigration law which is criticised for producing results that run counter to Article 79( I) TFEU, see e.g. Couronne, 'L'immigration economique au sens du droit de ('Union europeenne', in: lcard/Olivier-Leprince (eds), Les Flwc migratoires·au sein de /'Union Europeenne (Bruylant, 2017). p. 69-73. 'See Recitals 3-7 and Commission Proposal, COM(2010) 378, p. 2-3; for a closer look at the business needs for facilitated intra-corporate transfers as well as a first preliminary assessment of the Directive

Li:irges

1003

Chp. 16 4

Art. 1

Intra-Corporate Transfer Directive 2014/66/EU

About five years after the end of its transposition period,5 the overall Impact of this Directive seems to be rather limited. Data so far available indicates that the annual numbers of ICTs remain considerably below the Commission's estimate.6 It appears likely that this is due not only to the Directive's restricted scope, but also to its considerable complexity. The Directive does play an important role in EU regulation: Its new and, despite its intricate character, comparatively flexible intra-EU mobility scheme7 independent from the Schengen regime was adopted, with appropriate modifications, in the Students and Researchers Directive (EU) 2016/801 and also found its way in the Commission proposal for a new Blue Card Directive. 8 However, first numbers of mobile ICT permits9 raise doubts about the proportionality of regulation at EU level, which might grow in case of persistent Member States' concerns about the practicability and possible misuse of the scheme 10 as well as in the event of any possible future 'recalibration' of labour migration policy at EU level. 11

II. Drafting history of the Directive 5

This Directive forms part of a long-term process at EU level which is to lead to a comprehensive immigration policy. 12 In 2005, the European Commission announced in its Communication on a Policy Plan on Legal Migration that it would present five proposals on labour migration, one of them concerning the category of ICTs. 13 However, the proposal for this Directive was published only on 13 July 2010. 6 The proposal was negotiated extcnaively. After the European Parliament and the Council had determined their positions in January 2012 resp. May 2012, the negotiations in the informal trilogue lasted almost another two years. Finally, the Parliament from this perspective, see Anloons/Ghimis/Sullivan, 'The Intra-Corporate Transfer Permit and Mobility in the European Union: The Business Perspective, in: Minderhoud/de Lange (eds), The Intra Corporate Tramferee Directive, p. 67 et seq; in contrast, the demand-driven approach to temporary labour migration is criticised e.g. by Howe/Owens, 'The Regulatory Challenges', in: ibid. (eds), Temporary Labour Migration in the Global Era the Regulatory Challenges (Hart, 2016), p. 3 et seq. 5 The transposition period ended on 29 :-.iovember 2016 (Article 27(1)) with only four Member States having notified full transposition in time and with an average transposition delay of more than seven months, see Lutz. in Minderhoud/de Lange (eds), The Intra Corporate Transferee Directive, p. 19. • In the summary of the impact assessment accompanying the proposal, the Commission had estimated the number of ICTs 'to be roughly 16 500 a year' throughout the EU, see Commission Document, SEC (2010) 885, p. 7. Data from Eurostat and the German Federal Office for Migration and Refugees (BAMF, annual 'Wanderungsmonitoring: Bildungs- und Erwerbsmigralion nach Deulschland') for 2017 lo 2019 let assume, however, that the number of ICT permits issued and renewed by EU member stales per year is a very low five-digit number, with a tendency lo rise slightly. 7 See Peers/Guildrfomkin, EU Immigration and A.sylum Law (Martinus Nijhoff, 2012), p. 108, and also the somewhat overenthusiastic assessment ('milestone', 'quantum leap') by Klaus, Die ICT-Richtlinie, p. I. • See Articles 27 to 32 Students and Researchers Directive (EU) 2016/801 as well as Commission Proposal, COM(2016) 378, p. 44-48. 9 ln Germany, the EU's biggest economy, a total of IS mobile ICT permits for long-tenn mobility were handed out in 2018 and 2019. 10 Such concerns, already present during the negotiations, led to the Commission's obligation to focus their regular reports particularly on the intra-EU mobility scheme (Artide 25). 11 Cf. Menz, 'EU Labor Immigration Policy. From Silence to Salience', in: RipoU Serventffrauner (eds), The Routledge Handbook of Justice and Home A.ffairs Research (Routledge, 2018), p. 130, whose critical analysis does not even comprise the Covid-19 pandemic and its incalculable consequences since it was written in 2017. 12 See for further details Commission Proposal, COM(2010) 378, p. 2, and Thym, Legal Framework for EU Immigration Policy, MN 1-4. 11 See Commission Communication, COM(2005) 669, p. 4-8.

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Lorges

Art. 2 Chp. 16 adopted its position at first reading on 15 April 2014, which was approved by the Council on 13 May 2014. After its publication in the Official Journal of the European Union on 27 May 2014, the Directive eventually entered into force on 28 May 2014. During nearly four years of negotiations, the most contested parts of the Directive 7 were the admission conditions, the rights to equal treatment and the design of intra-EU mobility. While only a few extra articles were added, the length of the text almost doubled, resulting in some excessively long provisions (e.g. Article 22).

Article 2 Scope I. This Directive shall apply to third-country nationals who reside outside the territory of the Member States at the time of application and apply to be admitted or who have been admitted to the territory of a Member State under the terms of this Directive, in the framework of an intra-corporate transfer as managers, specialists or trainee employees. 2. This Directive shall not apply to third-country nationals who: (a) apply to reside in a Member State as researchers, within the meaning of Directive 2005/71/EC, in order to carry out a research project; (b) under agreements between the Union and its Member States and third countries, enjoy rights of &ee movement equivalmt to those of Union citizens or are employed by an undertaking established in those third countries; (c) are posted in the framework of Directive 96/71/EC; (d) carry out activities as self-employed workers; (e) are assigned by employment agencies, temporary work agencies or any other undertakings engaged in making available labour to work under the supervision and direction of another undertaking; (f) are admitted as full-time students or who are undergoing a short-term supervised practical training as part of their studies. 3. This Directive shall be without prejudice to the right of Member States to issue residence permits, other than the intra-corporate transferee permit covered by this Directive, for any purpose of employment for third-country nationals who fall outside the scope of this Directive. Content mn.

l. General remarks and drafting history........................................................ II. Scope of the Directive (Article 2( I)).......................................................... III. Exclusion from the scope of the Directive (Article 2(2)) ...................... IV. Other residence permits for the purpose of employment

I 3 5

(Article 2(3)) ....................................................................................................

9

I. General remarks and drafting history The description of the Directive's scope in Article 2 is not precise. It can be understood properly only in connection with the definition of an 'intra-corporate transfer' (Article 3{b)) and does not indicate at all that this Directive solely applies to transfers that last longer than 90 days.

Lorges

1005

Chp. 16 2

Art. 2

Intra-Corporate Transfer Directive 2014/66/EU

Furthermore, Article 2 is not explicit as to the question if Member States may provide for additional national schemes for ICTs. It is argued here that indeed they may: Despite the drafting history of Article 2(3), 14 the decisive wording of Article 2(1) suggests flexibility for the Member States since only third-country nationals who apply to be admitted or who have been admitted 'under the terms of this Directive' are covered. A comparison with the Commission proposal supports this interpretation, since the explicit reference to 'the terms of this Directive' was added during the negotiations, limiting the scope to third-country nationals who use the Directive's specific migration channel. The possibility for Member States to admit on easier terms third-country nationals that plan an intra-corporate transfer only to the tenitory of one country is also in line with the Directive's main objective: In this way, the Member States may set additional incentives and, thereby, make intra-corporate transfers more attractive on the whole. Last but not least, parallel national schemes do not significantly interfere with the aim of making the legal framework more transparent: With this Directive, third-country nationals have a guaranteed way of entry to all participating Member States. It can only be in their interest if a Member State offers additional, easier ways. Third-country nationals that meet the criteria of this Directive and, at the same time, fulfil the conditions of national schemes or other directives may choose which permit to apply for.

II. Scope of the Directive (Article 2(1)) 3

Article 2(1) explicitly stipulates that applications are only possible when the thirdcountry national is residing 'outside the territory of the Member States'. This rule is due to the specific (usually circular) nature of migration under this Directive. With a view to the corresponding wording of Article 3(b) and the Directive's main objective to regulate the 'conditions of entry to ... the tenitory of the Member States' (Article l(a)), it is not relevant that the wording of Article 11(2) is broader, seemingly allowing also applications from third-country nationals residing in other Member States ('residing outside the tenitory of the Member State to which admission is sought'). 4 Applications from third-country nationals residing in a Member State that is not taking part in the adoption of this Di.rective 15 are not covered by this Directive. However desirable the opposite might be, any teleological interpretation cannot overcome the unambiguous wording. 16

III. Exclusion from the scope of the Directive (Article 2(2))

s

Researchen (Article 2(2)(a), see also Recital 43) and posted workers (Article 2(2)(c), see also Recital 37 and note that Directive 96/71/EC was amended on 28 June 2018 by Directive (EU) 2018/957, involving a slight clarification as to the Directive's scope) are excluded from the Directive's scope only as far as they fall under the legal instrument referred to. In contrast, the exclusion of students (Article 2(2)(f)) goes beyond the scope of the former Student Directive 2004/114/EC. 6 The exclusion of persons who enjoy rights of free movement equivalent to those of Union citizens (Article 2(2)(b)) concerns, due to the Agreement on the European 14 See Council doc. 6667/13 of 22 February 2013, p. 38. 1s After the United Kingdom left the EU, this applies to Ireland and Denmark, see Recitals 47 and 48. •• See however Klaus, Die ICT-Richtlinie, p. I, 3 fn. 26.

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Economic Area, the citizens of Iceland, Liechtenstein and Norway as well as, on the basis of a bilateral agreement, those of Switzerland. However, any other third-country national might also be excluded by Article 2(2)(b) as long as he or she is employed by an undertaking that is established in one of those four countries. The wording of the exclusion of activities u self-employed workers, which was 7 proposed by the Parliament 17 due to concerns that the Directive's scope was too broad, suggests a rather broad interpretation of Article 2(2)(d): ICTs may not engage in any self-employed activity in addition to the obligations resulting from his or her work contract. In order to prevent employment or temporary work agencies from abusing the 8 rules of the Directive, both the Parliament and the Council suggested the explicit exclusion of third-country nationals that are assigned by undertakings engaged in making available labour to work under the supemsion and direction of another undertaking (Article 2(2)(e)). 18 However, third-country nationals that work within such agencies as their own managers, specialists and trainee employees are not excluded. 19

IV. Other residence permits for the purpose of employment

(Article 2(3)) Article 2(3), in combination with Article 2(1), allows Member States to provide for 9 national admission schemes for third-country nationals willing to do an intra-corporate transfer. This comprises not only (more favourable) national admission schemes for managers, specialists and trainee employees (see above MN 2), but also national schemes for intra-corporate transfers of other employees. 20 Furthermore, the Directive does not interfere with the Member States' competence to 10 regulate short-term intn-corponte tnnsfen of up to 90 days, which is only subject to the EU's international trade commitrnents. 21 Theoretically, Member States also remain free to allow in-country applications for ICTs in their national law,22 which, however, would seem to conflict to a certain extent with the application's subject-matter, namely the transfer.

Article 3 Definitions For the purposes of this Directive, the following definitions apply: (a) 'third-country national' means any person who is not a citizen of the Union, within the meaning of Article 20(1) TFEU; (b) 'iiltn-corponte tnnsfer' means the temponry secondment for occupational or tnining purposes of a third-country national who, at the time of application for an intn-corponte transferee permit, resides outside the territory of the Member States, from an undertaking establlshed out.side the territory of a See Council doc. 6667/13 of 22 February 2013, p. 37. See Council doc. 6667/13 of 22 February 2013, p. 37. 1• See Klaus, Die 1(,7·-Richtlinie, p. 1, 4 fn. 37. !II Such· as unqualified employees, see Klaw, Die ICT-Richtlinir, p. 1, 4. 21 Peers/Guild/Tomkin, EU Immigration and Asylum Law (Martinw Nijhoff, 2012), p. 96. ll See ibid., p. 96. 17

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(c)

(d)

(e)

(t)

(g)

(h) (i)

(j)

(k)

(I)

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Member State, and to which the third-country national is bound by a work contract prior to and during the transfer, to an entity belonging to the undertaking or to the same group of undertakings which is established in that Member State, and, where applicable, the mobility between host entities- established in one or several second Member States; 'intra-corporate transferee' means any third-country national who resides outside the territory of the Member States at the time of application for an intracorporate transferee permit and who is subject to an intra-corporate transfer; 'host entity' means the entity to which the intra-corporate transferee is transferred, regardless of its legal form, established, in accordance with national law, in the territory of a Member State; 'manager' means a person holding a senior position, who primarily directs the management of the host entity, receiving general supervision or guidance principally from the board of directors or shareholders of the business or equivalent; that position shall include: directing the host entity or a department or subdivision of the host entity; supervising and controlling work of the other supervisory, professional or managerial employees; having the authority to recommend hiring, dismissing or other personnel action; 'specialist' means a person working within the group of undertakings possessing specialised knowledge essential to the host entity's areas of activity, techniques or management. In assessing such knowledge, account shall be taken not only of knowledge specific to the host entity, but also of whether the person has a high level of qualification including adequate professional experience referring to a type of work or activity requiring specific technical knowledge, including possible membership of an accredited profession; 'trainee employee' means a person with a university degree who is transferred to a host entity for career development purposes or in order to obtain training in business techniques or methods, and is paid during the transfer; 'family members' means the third-country nationals referred to in Article 4(1) of Council Directive 2003/86/ECO•>; 'intra-corporate transferee permit' means an authorisation bearing the acronym 'ICT' entitling its holder to reside and work in the territory of the first Member State and, where applicable, of second Member States, under the terms of this Directive; 'permit for long-term mobility' means an authorisation bearing the term 'mobile ICT' entitling the holder of an intra-corporate transferee permit to reside and work in the territory of the second Member State under the terms of this Directive; 'single application procedure' means the procedure leading, on the basis of one application for the authorisation for residence and work of a thirdcountry national in the territory of a Member State, to a decision on that application; 'group of undertakings' means two or more undertakings recognised as linked under national law in the following ways: an undertaking, in relation to another undertaking directly or indirectly, bolds a majority of that undertaking's subscribed capital; controls a majority of the votes attached to that undertaking's issued share capital; is entitled to appoint more than half of the members of that

1141 Council Directive 2003/86/EC of 22 September 2003 on the right to family reunification (OJ L 251, 3.10.2003, p. 12).

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undertaking's administrative, management or supervisory body; or the undertakings are managed on a unified basis by the parent undertaking; (m) 'fint Member State' means the Member State which first issues a third-country national an intra-corporate tn.nsferee permit; (n) 'second Member State' means any Member State in which the intra-corporate tn.nsferee intends to exercise or exercises the right of mobility within the meaning of this Directive, other than the fint Member State; (o) 'regulated profession' means a regulated profession as defined in point (a) of Article 3(1) of Directive 2005/36/EC. Content

mo.

I. General remarks and drafting history ................. _..................................... II. Definitions........................................................................................................ I. 'Intra-corporate transfer' and 'intra-corporate transferee' (Article 3(b) and (c)) ................................................................................. 2. 'Host entity' (Article 3(d)) ........................................................................ 3. 'Manager' (Article 3(e))............................................................................. 4. 'Specialist' (Article 3(f))............................................................................. 5. 'Trainee employee' (Article 3(g)) ............................................................ 6. 'Intra-corporate transferee permit' (Article 3(i))................................. 7. 'Permit for long-term mobility' (Article 3(j)) ...................................... 8. 'Group of undertakings' (Article 3(1))....................................................

I 3 4 6 7 9 11 12 13 14

I. General remarks and drafting history Article 3 defines fifteen key terms used in this Directive. It aims at ensuring a l uniform understanding and application of the legal act in the Member States. Given the resulting significance of this Article, it is not surprising that parts of it were 2 the subject of intensive discuuions during the negotiations. This concerned in particular the definitions of the terms 'intra-corporate transfer', 'manager', 'specialist' and 'trainee employee', 23 which the Member States wanted to be as close as possible to the GATS provisions. 24

II. Definitions For some of the terms, standard definitions were introduced. They explicitly refer to 3 (Article 3(a), (h) and (o)) or equal (Article 3(k), (m) and (n)) the content of other provisions. 25

For a comparison of the different positions, see Council doc. 6667/13 of 22 February 2013, p. 39-42. See Tottos, in Minderhoud/de Lange (eds), The Intra Corporate Transferee Directive, p. 8, as well as Recital 13 which clarifies in this regard that the 'definition [of managers, specialists and trainee employees) should build on specific commitments of the Union under the General Agreement on Trade in Services (GATS) and bilateral trade agreements .... However, the scope of the intra-corporate transfers covered by this Directive should be broader than tha.t implied by trade commitments, as the transfers do not necessarily take place within the services sector and may originate in a third country which is not party to ·a trade agreement'. 25 See in particular with respect to Article 3(k), (m) and (n) the similar definitions in Article 2(d) Single Permit Directive 2011/98/EU and Article 2(d) and (e) Blue Card Directive 2009/50/EC. 23

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I. 'lntra-corponte transfer' and 'intra-corponte tnnsferee' (Article 3(b) and (c))

The key definition of the 'intn-corporate transfer' builds on specific· EU-25 commitments under the GATS and bilateral trade agreements. 26 It contains the main three characteristics of this specific type of migration: ( l) the link between the migrating third-country national and an undertaking which is established outside the Member States,27 (2) the link between this undertaking and one (or several) undertaking(s) established inside the EU and (3) the temporary secondment of the third-country national from the former to the latter undertaking(s) in the framework of his or her employment. 28 . 5 While the subject of an intra-corporate transfer, i.e. the 'intra-corporate transferee' or the 'ICT', may also be seconded to further host entities in the first and in second Member States (see Articles 5( l)(c)(i) and l 7(c)) and work, in accordance with national law, at the site of clients within the respective Member State(see Recital 36), the concept of an intra-corporate transfer does not comprise direct postings from an undertaking established outside the EU to clients based in the Member States.29

4

2. 'Host entity' (Article 3(d)) 6

Despite the definition's wording ('the entity to which the intra-corporate transferee is transferred'), an ICT might be transferred to several (host) entities established in the same Member State. This follows from the unambiguous wording of Article 17(c) ('in any host entity') as well as from the Directive's objective to facilitate intra-corporate transfers by setting up a more flexible framework. 30 3. 'Manager' (Article 3(e))

Although single words differ, this definition corresponds with the respective definition in the EU commitments schedule under the GATS. 31 The duties and rights required in order to qualify as a manager under this Directive again illustrate its restricted scope. 8 The Parliament proposed to add a specific reference to project managen32 which, however, was rejected in order to avoid any significant divergence from the GATS definition. Still, project managers might qualify as managers under this Directive if they fulfil the requirements of the definition.

7

26 See Commission Propmal, COM(2010) 378, p. 9; for a closer analysis of the international pattern of labour migration see Engblom/Kountouris/Odin Ekman, 'Temporary Labour Migration and the Trade in Services. European and Global Perspectives in an Age of Economic Integration', in: Howe/Owens (eds), Temporary Labour Migration in the Global Era tht Regulatory Challenges (Han, 2016), p. 65-90. 27 As clarified during the negotiations, this link has to exist 'prior to and during the transfer'; thus, a change of employer is not possible, which is already implicit in the nature of an intra-corporate transfer, see Peen/Guild/romkin, EU Immigration and Asylum Law (Martinus Nijhoff, 2012), p. 100. za According to private international law, the law applicable to the ICT's employment relationship normally remains the law of the non-EU country where the ICT used to carry out his job or from where he used to carry out his job, see Verschueren, Employment and Social Security Rights, p. 392, 395. 19 See Klaus. Die ICT-Richtlinie, p. l, 3. 10 See also Article 5(1 )(c)(i) ('... the location of the host entity or entities .. .') as well as the Commission Proposal, COM(2010) 378. p. 9. 11 See World Trade Organization, Council for Trade in Services. Communication from the European Communities and its Member States, S/C/W/273, 9 October 2006, p. 32-33. n See Council doc. 6667/13 of 22 February 2013, p. 40-41.

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4. 'Specialist' (Article 3(t)) The Parliament suggested to align the definition with the tenninology of the Blue Card 9 Directive_ll However, in the end a (broader and less precise) definition equivalent to the one in the GATS framework was chosen. The slightly different wording ('specialised' instead of 'uncommon' knowledge required, 'adequate professional experience' as an additional criterion) is not considered as a change of the meaning, as the Commission fonnally stated on the occasion of the Directive's adoption by the Council. 34 The fact that the third-country national has to possess 'specialised knowledge' which 10 is 'essential to the host entity's areas of activity, techniques or management' shows that only key personnel is covered (see Recital 6). In case of doubt, the definition is to be interpreted restrictively: this results not only from the narrow definitions of the other groups of persons covered by this Directive, but also from legitimate concerns of misuse should the definition be understood too extensively. 35

S. 'Tninee employee' (Article 3(g)) Unlike the previous one, this is a rather clear-cut definition, covering only remuner- 11 ated trainees possessing a university degree. According to the wording, the transfer has not to be linked exclusively to the preparation for a managerial position within the specific company. 36 However, with a view to the Directive's objective, this should generally be the case, and the Member States may require this specific link according to Article 5(6).

6. 'Intra-corporate transferee permit' (Article 3(i)) The suggestion by the Council to delete Article 3(i) in view of the more detailed 12 'definition' provided by Article 13 was rejected during the negotiations. It was considered important to include a proper definition since the term is constantly used throughout the Directive and, unlike Article 13, it lays down also the basic rights resulting from the permit.

7. 'Permit for long-term mobility' (Article 30)) If Member States opt for the application procedure for long-term mobility (Article 22(2) 13 to (7)), they have to introduce this Directive's second specific type of permit. Article 22(4) contains further specifications in addition to the permit's basic characteristics contained in this definition. The definition is clear about the fact that the permit does not grant the right to short-term mobility in the sense of Article 71. Such a right might, however, exist according to the Schengen rules. 8. 'Group of undertakings' (Article 3(1))

It is the national (company) law of the Member State that has received the 14 application which is decisive for assessing if one of the four possible links between the employer and the host entity exists, since it is this state that is asked to admit the thirdcountry national for an intra-corporate transfer. The notion of 'undertaking' should, "See Council doc. 6667/13 of 22 February 2013, p. 41-43. J4 See Council doc. 9346/14 ADD I of 5 May 2014, p. 2. 15 See Bayreuther, Arbeitsrecht im Richtlinienvorschlag. p. 405-406. l6 See however Commission Proposal, COM(2010) 378, p. 19.

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Art. 4

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with a view to the aims and objective of the Directive, be interpreted in a broad sense, covering also internationally active NGOs, cooperatives or other non-profit making undertakings. 17

Artide4 More favourable provisions l. This Directive shall apply without prejudice to more favourable provisions of: (a) Union law, including bilateral and multilateral agreements concluded between the Union and its Member States on the one hand and one or more third countries on the other; (b) bilateral or multilateral agreements concluded between one or more Member States and one or more third countries. 2. This Directive shall not affect the right of Member States to adopt or retain more favourable provisions for third-country nationals to whom it applies in respect of point (h) of Article 3, and Articles 15, 18 and 19.

1

Article 4 determines where derogations from this Directive are possible by means of more favourable provisions. No significant changes were made during the negotiations.38 In particular, the provisions listed in Article 4(2) remained the same, although it was discussed to add provisions such as Article S(l)(b). 2 Article 4( l) refers to more favourable provisions contained in existing as well as future EU law, bilateral and multilateral agreements. 19 In particular, the interaction with the GATS rules is not very clear and will have to be solved in practice on a case-bycase basis.40 3 In Article 4(2), Member States are given the limited possibility to provide for more favourable provisions in respect of Articles 3(h), IS, 18 and 19. Thus, in general, Member States may not provide for more favourable admission conditions, since those would affect all other Member States via the mobility rules (however, easier admission conditions for ICTs in purely national schemes are possible, see above Article 2 MN 2). 4 A problematic exception in this respect is Article 3(h) (as well as Article 11 (7)(a), see below Article 11 MN 6): Since it is mentioned in Article 4(2), Member States may extend their undentanding of 'family memben' beyond the one of Article 4( l) Family Reunification Directive 2003/86/EC in the national context only. This may lead to the unsatisfactory situation that family members of an ICT that have been accepted in the first Member State may not be allowed to accompany the ICT during his or her long-term mobility to a (more restrictive) second Member State. In the spirit of this Directive's objective, such Member States should consider to provide for an exception on the basis of Article 3(5) Family Reunification Directive 2003/86/EC.

"Cf. Lutz, in Minderhoud/de Lange (eds), The Intra Corporate Transferee Directive, p. 21. ll See Commission Proposal, COM(2010) 378, p. 20. •• For an analysis of how provisions in the EU's international agreements with third countries, constituting a sort of intra-corporate transfer regime prior to this Directive, may still determine the conditions of entry and residence of ICTs under this Directive via Article 4(l)(b), see Guild, 'IntraCorporate Transferees: Between the Directive and the EU's International Obligations', in: Minderhoud/de Lange (eds), The Intra Corporate Transferee Directive (Wolf, 2018), p. 55 el seq. 40 See Peers/Guild/Tomkin, EU Immigration and Asylum Law (Martinus Nijhoff, 2012), p. 106-107, and Klaus, Die ICT-Richtlinie, p. I, 2 note 9.

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CHAPTER II CONDITIONS OF ADMISSION Article 5 Criteria for admission 1. Without prejudice to Article 11(1), a third-country national who applies to be admitted under the terms of this Directive or the host entity shall: (a) provide evidence that the host entity and the undertaking established in a third country belong lo the same undertaking or group of undertakings; (b) provide evidence of employment within the same undertaking or group of undertakings, from at least three up to twelve uninterrupted months immediately preceding the date of the intra-corporate transfer in the case of managers and specialists, and from at least three up to six uninterrupted months in the case of trainee employees; (c) present a work contract and, if necessary, an assignment letter from the employer containing the following: (i) details of the duration of the transfer and the location of the host entity or entities; (ii) evidence that the third-country national is taking a position as a manager, specialist or trainee employee in the host entity or entities in the Member State concerned; (iii) the remuneration as well as other terms and conditions of employment granted during the intra-corporate transfer; (iv) evidence that the third-country national will be able to transfer back to an entity belonging to that undertaking or group of undertakings and established in a third country at the end of the intra-corporate transfer; (d) provide evidence that the third-country national has the professional qualifications and experience needed in the host entity to which he or she is to be transferred as manager or specialist or, in the case of a trainee employee, the university degree required; (e) where applicable, present documentation certifying that the third-country national fulfils the conditions laid down under the national law of the Member State concerned for Union citizens to exercise the regulated profession to which the application relates; (f) present a valid travel document of the third-country national, as determined by national law, and, if required, an application for a visa or a visa; Member States may require the period of validity of the travel document to cover at least the period of validity of the intra-corporate transferee permit; (g) without prejudice to existing bilateral agreements, provide evidence of having, or, if provided for by national law, having applied for, sickness insurance for all the risks nonnally covered for nationals of the Member State concerned for periods where no such insurance coverage and corresponding entitlement to benefits are provided in connection with, or as a result of, the work carried out in that Member State. Member States may require the applicant to present the documents listed in pomts (a), (c), (d), (e) and (g) of paragraph I in an official language of the Member State concerned.

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3. Member States may require the applicant to provide, al the latest at the time of the issue of the intra-corporate transferee permit, the address of the third-country national concerned in the territory of the Member State. 4. Member States shall require that: (a) all conditions in the law, regulations, or administrative provisions and/or universally applicable collective agreements applicable to posted workers in a similar situation in the relevant occupational branches are met during the intracorporate transfer with regard to terms and conditions of employment other than remuneration. In the absence of a system for declaring collective agreements of universal application, Member States may base themselves on collective agreements which are generally applicable to all similar undertakings in the geographical arta and in the profession or industry concerned, and/or collective agreements which have been concluded by the most representative employers and employee organisations at national level and which are applied throughout their national territory; (b) the remuneration granted to the third-country national during the entire intracorporate transfer is not less favourable than the remuneration granted to nationals of the Member State where the work is carried out occupying comparable positions in accordance with applicable laws or collective agreements or practices in the Member State where the host entity is established. 5. On the buis of the documentation provided pW'Suanl to paragraph 1, Member States may require that the intra-corporate transferee will have sufficient resources during his or her stay to maintain himself or herself and his or her family members without having recourse to the Member States' social assistance systems. 6. In addition lo the evidence required under paragraph I, any third-country national who applies lo be admitted as a trainee employee may be required lo present a training agreement relating to the preparation for his or her future position within the undertaking or group of undertakings, including a description of the training programme, which demonstrates that the purpose of the stay is to tnin the trainee employee for career development purposes or in order to obtain training in business techniques or methods, its duration and the conditions under which the trainee employee is supervised during the programme. 7. Any modification during the application procedure that affects the criteria for admission set out in this Article shall be notified by the applicant to the competent authorities of the Member State concerned. 8. Third-country nationals who are considered to pose a threat to public policy, public security or public health shall not be admitted for the purposes of this Directive. Content mn. I. General remarks and drafting history........................................................ I II. Mandatorv criteria for admission (Article 5( I), (4), (7) and (8))........ 3 I. Same u~dertaking or group of undertakings (Article 5(1)(a))......... 4 2. Minimum duration of current employment within the same undertaking or group of undertakings (Article 5(1 )(b)) ................... 5 3. Work contract and, if necessary, assignment letter (Article 5( I )(c)) 6 4. Professional qualifications and experience (Article 5( I )(d)) ............ 7 5. Terms and conditions of employment (Article 5(4))......................... 8 6. Modifications affecting the criteria for admission (Article 5(7)) .... IO 7. No threat to public security (Article 5(8)) ............................................ !Oa III. Facultative criteria for admission (Article 5(2), (3), (5) and (6)) ........ 11

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I. General remarks and drafting history Article 5 lays down numerous, mostly mandatory criteria for admission which 1 'mainly serve to prevent that other migration, labour and social law regulations are bypassed using the JCT title'. 41 In case that they are not complied with, the application 42 has to be rejected (Article 7(l)(a)). In contrast, even if the criteria of Article 5 are fulfilled, this does not entail a right of the third-country national to be admitted: the application might still be rejected, in particular on the grounds laid down in Articles 6 and 7, where the authorities have a discretion when assessing the relevant facts in order to determine whether those conditions are met. 43 Given the importance of the admission criteria, it is not surprising that the details of 2 Article 5 were discussed intensively during the negotiations. This concerned in particular Article 5( l)(b) and (4).

II. Mandatory criteria for admission (Article 5(1), (4), (7) and (8)) The mandatory requirements to comply, where applicable, with regulated profession 3 rules (Article 5(l)(e) in conjunction with Article 3(o)), to present a valid travel document and, if required, an application for a visa or a visa (Article 5(1)(0), to have or, if provided for by national law, to have applied for sickness insurance (Article S(l)(g)) as well as the requirement of not being considered to pose a threat to public policy, public security or public health (Article 5(8)) are, due to their general nature, common to other comparable directives in the field of migration law.4-4 1. Same undertaking or group of undertakings (Article S(l)(a))

This requirement is an elementary criterion to ensure that the transfer to the EU is of 4 an intra-corporate nature. Given the potential complexity of the matter, in particular where a group of undertakings (Article 3(1)) is involved, the evidence has to show in a comprehensible and verifiable way how the different entities are linked, in order to enable the Member State's authorities to properly assess if this criterion is fulfilled.

2. Minimum duration of current employment within the same undertaking or group of undertakings (Article S(l)(b)) This requirement is vital to ensure that the skills of the JCT are specific to the host S entity (see Recital 16) and that the alleged intra-corporate transfer is not, in fact, a concealed recruitment of a third-country national. The wording does not require the former employment and the one during the transfer to be in the same position, and it is primarily up to the undertakings how to tap their human resources. However, in case the positions differ considerably, the Member States' authorities should take a closer look. especially when assessing if applicant has the professional qualifications and 41 Von Harbou, in WoUenschlager (ed), Enzyklopidie Europarecht, Band X, § 18 para 60. " The Member States have to determine by whom applications are to be submitted (Article 11 (I)). 0 See ECJ, Ben Alaya, C-491/13, EU:C:2014:2187, para 33, also Tewocht, Drittstaatsangrhi:irige im europaischen Migrationsrecht (Nomos, 2016), p. 402. It is argued here that the Directive leaves the

Member States a certain discrn.ion to reject the admission on further grounds, see below Article 7 MN 2. .. See in particular Article S(l)(b), (d), (e) and (0 Blue Card Directive 2009/50/EC; for further annotations regarding those requirements see above Herzog-Schmidt/Lehner, Blue Card Directive 2009/ SO/EC. Article 5 MN 4, 6-8.

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experience according to Article 5(l)(d). The evidence might be provided with the working contract referred to in Article 5(l)(c).

3. Work contnct and. if necessary, assignment letter (Artide 5(1)(c)) 6

The requirement to provide the information and evidence listed in Article 5(1)(c) is to guarantee that the third-country national enters the EU in the framework of an intracorporate transfer. Thus, the authorities have to be shown, by means of either the thirdcountry national's work contract or an additional assignment letter, how long and where the transfer is going to take place (Article S(l)(c)(i)),45 which position the thirdcountry national will hold (Article 5(l)(c)(ii)),46 which remuneration and other terms and conditions the employment involves (Article S(l)(c)(iii))47 and that th_e thirdcountry national will be able to transfer back to a third country within the corporation at the end of the intra-corporate transfer (Article 5(1 )(c)(iv)). 48

4. Professional qualifications and experience (Article 5(l)(d)) 7

As this Directive targets (highly) qualified migration, it is important to establish that the third-country national possesses the professional qualifications and experience needed for the intra-corporate transfer (compare the similar requirements in Articles 2 (b), 2(g), 2(i) and 5(l)(c) Blue Card Directive 2009/50/EC). The trainee employee's university degree does not need to be linked to the training during the transfer (see Article 3(g): 'a university degree'). The qualifications should be assessed in a comparable and transparent manner by making use of the European Qualifications Framework for lifelong learning (Recital 14).

5. Terms and conditions of employment (Article 5(4)) This obligation of the Member States to ensure equal treatment of ICTs with posted workers as defined by Directive 96/71/EC with regard to terms and conditions of employment is of particular importance since the effective enforcement of the corresponding individual rights in Article 18 may well be hampered by the fact that the employer to which the ICT is bound by a contract during the transfer is established outside the Member States.49 9 With regard to the remunenUon granted to the ICT during the entire transfer, Member States even have to require equal treatment with nationals occupying comparable positions. Article 18 does not contain a corresponding individual right in this regard. As a compensation, and in order to protect workers and guarantee fair competition, Member States are 'responsible for checking the remuneration granted to the intra-corporate transferees during their stay on its territory' (Recital 15).

8

6. Modifications affecting the criteria for admission (Article 5(7)) 10

It is vital for an accurate application procedure that any modification during the procedure affecting the criteria for admission are notified without undue delay. In case 4s This also includes details on mobility to other Member States, as far as it is known already, see Article 21(2)(a). 46 See in this respect the definitions in Article 3(e), (0 and (g) as well as Recital 13. 47 See Article 5(4). The information should comprise at least the aspects listed in Article 3 Posted Work£n Directive 96/71/EC. see Commission Proposal, COM(2010) 378, p. 9. 41 This requirement is due to the fact that the scheme focuses specifically on temporary migration, see Commission Proposal, COM(2010) 378, p. 10. •• See Bayreuther, Arbeitsrecht im Richtlinienvorschlag, p. 405, 407.

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of non-compliance with this obligation, an application has to be rejected in accordance to Article 7( 1)(a). Later modifications affecting the conditions for admission (i.e. during the stay) are covered by Article 14.

7. No threat to public security (Article 5(8)) In Fahimian, the ECJ set out in detail the conditions under which the application of a IOa third-country national to be admitted to the EU may be rejected because he poses a threat to public security. 50 In particular, the Court made clear that the Member States' authorities have a wide margin of discretion and that a potential threat to public security suffices, as long as the authorities' considerations are based on an overall assessment of all the (factual) elements of that person's situation. 51 Judicial review is limited to the ascertainment of a 'sufficiently solid factual basis', the absence of a 'manifest error' when assessing the facts and the compliance with procedural guarantees. 52

III. Facultative criteria for admission (Article 5(2), (3), (5) and (6)) Member States that want to exercise more control may require the ICT's address in 11 their territory or a trainee employee's detailed training agreement in order to ensure that he or she 'will benefit from genuine training and not be used as a normal worker' (Recital 20). With the aim of protecting their social assistance systems, the Member States may also require (without asking for supplementary documentation, however) the evidence of sufficient resources. Eventually, Member States have the possibility to oblige the applicant to provide certain documents in their respective official language, in order to facilitate their procedure.

Article 6 Volumes of admission This Directive shall not affect the right of a Member State to determine the volumes of ad.mission of third-country nationals in accordance with Article 79(5) TFEU. On that basis, an application for an intn-corporate transferee permit may either be considered inadmissible or be rejected.

On the basis of Article 6, which fully reflects Article 79(5) TFEU, Member States may I determine a quota, i.e. a maximum number of intra-corporate transferee permits to be issued in a certain period of time. They may limit the number of ICT permits for certain professions, economic sectors or regions only53 or even reduce the numbers to zero. 54 Me,nber States may also take other measures in order to protect their national labour 2 market. In view of the wording of Article 79(5) TFEU ('volumes'), one might argue that Member States may fix quotas only. This, however, would deprive Member States whose immigration systems do not know such quotas of any possibility to control the access to 50 EC), Fahimian, C-544/15, EU:C:2017:255; for a more comprehmsive account of the 'public policy' exception in EU immigration and asylum law, see Thym, Legal Framework for EU Immigration Policy, MN 42a-42d. 51 ECJ, Fahimian, C-544/15, EU:C:2017:255, paras 40, 43. 52 Ibid:, paras 45, 46. 5' See Recital 17 of the Commission Proposal, COM(20IO) 378, p. 15. 54 See the position of the European Parliament in Council doc. 6667/ 13 of 22 February 2013, p. 60.

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their national labour markets. As it is the overall objective of Article 79(5) TFEU to provide Member States with effective means to protect their labour markets, the provision has to be understood in a broader sense. 55 3 In particular, such measures may consist of labour market tests. Indeed; unlike Article 8(2) Blue Card Directive 2009/50/EC, this Directive does not explicitly provide for it, and in Recital 21 Member States are rather prevented from requiring a labour market test. Furthermore, the Commission argues that a labour market test would be in contradiction with the purpose of setting up a transparent and simplified scheme of admission of skilled ICTs. 56 However, all this cannot deprive the Member States of a right (of such fundamental importance) which is guaranteed to them by primary law. One might argue only that, having regard to the ECJ in Sommer, Member States may take into account the situation of the labour market solely in exceptional circumstances and if it is justified and proportionate with regard to the aim being pursued. 57 4 That said, in practice Member States would be not well advised to resort to this instrument very much: on the one hand, the Member States covered by the EU's commitments under the GA TS and under bilateral trade agreements would run counter those commitments. And on the other hand, the need and the effects of a labour market test for ICTs seem to be rather limited due to the Directive's confined scope (see above Article l MN 2, 4) as well as the qualification and specialisation of the third-country nationals in question. 5 Member States may also apply limitations in the framework of mobility (see below Article 20 MN 5). In contrast, Article 6 is not applicable in case of an application for renewal of an ICT permit because in that case the third-country national is already part of the national labour market.

Article 7 Grounds for rejection I. Member States shall reject an application for an intra-corporate tnnsferee permit in any of the following cases: (a) where Article 5 is not complied with; (b) where the documents presented were fraudulently acquired, or falsified, or tampered with; (c) where the host entity was established for the main purpose of facilitating the entry of intra-corporate tnnsferees; (d) where the maximum duration of stay as defined in Article 12(1) has been reached. 2. Member States shall, if appropriate, reject an application where the employer or the host entity has been sanctioned in accordance with national law for undeclared work and/or illegal employment. 3. Member States may reject an application for an intra-corporate transferee permit in any of the following cases: (a) where the employer or the host entity has failed to meet its legal obligations regarding social security, taution, labour rights or working conditions; (b) where the employer's or the host entity's business is being or has been wound up under national insolvency laws or no economic activity is taking place; ss See Thym, Legal Framework for EU Immigration Policy, MN 26-27. 56 See Commission Proposal, COM(2010) 378, p. 10. 57 Cf. ECJ, Sommer, C-15/11, EU:C:2012:371. para 42.

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(c) where the intent or effect of the temporary presence of the intn-corporate transferee is to interfere with, or otherwise affect the outcome of, any labour management dispute or negotiation. 4. Member States may reject an application for an intra-corporate transferee permit on the ground set out in Article 12(2). 5. Without prejudice to paragraph I, any decision to reject an application shall take account of the specific circwmtanccs of the case and respect the principle of proportionality. C.Ontent

I. General remarks and drafting hi.story........................................................

II.

Mandatory grounds for rejection (Article

7(1)).......................................

mn. I

4

III. Discretionary ground for rejection (Article 7(2))....................................

8

Facultative grounds for rejection (Article 7(3) and (4)) ........................

10

rv.

I. General remarks and drafting history Together with Article 6, the grounds for rejection contained in Article 7 represent a I list of 'negative requirements' that must not be given or exercised by the authorities for an application to be successful: according to Article 13(1), no ICT permit will be issued until a positive decision is taken by the authorities. The Directive is not definite as to the question whether Member States have a certain 2 discretion to refuse the admission on further grounds. Indeed, Article 5 to 7 contain an extensive list of requirements. Furthermore, in view of the ECJ ruling in the Ben Alaya case, 58 it could be argued that the possibility for Member States to provide for additional admission conditions would be in conflict with the Directive's objective to harmonise and facilitate the admission of ICTs. However, such interpretation would ignore the fact that e.g. with Article 11(3), the Directive contains a ground for rejection that is not mentioned in Article 7 (neither in Article 8). Moreover, Article 13(1) and Recital 32 distinguish between the fulfilment of the 'admission criteria set out in Article 5' and the positive decision by the competent authorities. Therefore, even if the admission criteria of Article 5 are fulfilled and no ground of rejection according to Article 6 and 7 is given, Member States may reject an application, as long as it is compatible with the Directive's objectives and not done on arbitrary grounds. 59 Due to the importance of the grounds for rejection, it is not surprising that they have 3 been a key area of the negotiations (as to the question whether the Member States should be allowed to require a labour market test, see above Article 6 MN 2-4) and undergone various changes during the negotiations. 60

II. Mandatory grounds for rejection (Article 7(1)) The reference to the (mandatory and facultative) admission criteria of Article 5 in 4 Article 7(1 )(a) proves their pivotal nature (see also Article I 5(2)).

;a

ECJ, Ben Alaya, C-491/13, EU:C:2014:2187, see in particular paras 23-32.

;., See also Peers/Guildffomkin, EU Immigration and Asylum Law (Martinus !llijhoff, 2012), p. 98, as well as Klaus, Die ICT-Richtlinie, p. I, 10. 60

See for an overview Council doc. 6667/13 of 22 February 2013, p. 58-60.

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S

Article 7( I )(b) ensures that the acquisition of the evidence supporting the application as well as the evidence itself is correct.61 6 Article 7(l)(c) also aims at fighting possible abuses of the provisions of this Directive.62 Important criteria to assess and prove an abuse are the period of time that the host entity already exists, 63 the scope of its business activities, the number of its personnel as well as the number of applications for intra-corporate transfers to this entity. 7 Article 7(l)(d) covers the rare case that the duration of the transfer provided according to Article 5(1 )(c)(i) is longer than the maximum duration prescribed by Article 12( I). Such an application would have to be rejected, but a new application could be submitted, with an adapted duration of the transfer.

III. Discretionary ground for rejection (Article 7(2)) The sanctions referred to in Article 7(2) include, but go beyond, the ones covered by the Employer Sanctions Directive 2009/52/EC.64 As with regard to the provision's objective it does not make a difference if the employment was illegal with regard to a third-country national or to a citizen of the respective Member State, it even seems that the tenn 'illegal employment' is to be understood wider than the definition of Article 2 (d) Employer Sanctions Directive 2009/52/EC. 65 9 Article 7(2) contains a new type of regulation ('shall, if appropriate, reject'): On the one hand, the Member States have to transpose this ground for rejection into their national law. On the other hand, the wording requires that, while doing so, they should give their authorities a particular margin of discretion (not to be confused with the possibility to act arbitrarily) when those consider to apply this provision to a specific case. The principles stipulated in Article 7(5) limit the margin of discretion.

8

IV. Facultative grounds for rejection (Article 7(3) and (4)) Article 7(3)(a) and (b) contain grounds for rejection with a rather extensive scope of application and no direct link to the specific intra-corporate transfer in question. Therefore, the authorities have discretion if they draw consequences for the concrete application. The principle of proportionality is of particular importance with regard to the grounds of Article 7(3)(a): insignificant statutory violations should not, as a general rule, lead to a rejection (see also Article 7(5)). 11 The same applies to Article 7(3)(c): the more the interests involved in a present or foreseeable labour management dispute or negotiation would be affected by the intracorporate transfer, the more the authorities should tend to deny the admission of the third-country national concerned. This ground for rejection was introduced due to fears

10

61 See for further details above Herzog-Schmidt/Lehner, Blue Card Directive 2009/50/EC, Article 8 MN2. 62 See Recital 24. As to sanctions against those who attempt to or do facilitate the unauthorised entry of ICrs, see Article 9, MN 4 a. 63 With regard to the dear wording in Article 3(b ), the entity in the receiving State has to exist already before the JCT application is submitted, see Lutz, in Minderhoud/de Lange (eds). The Intra Corporate Transferee Directi\·e, p. 23. 64 See, in contrast, Peers/Guildffomkin, EU Immigration and Asylum Law (Martinus Nijhoff, 2012), p. 98. 65 See however above Herzog-Schmidt/Lehner, Blue Card Directive 2009/50/EC, Article 8 MN 7.

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that multinational companies could misuse the Directive by transferring 'strike-breakers' at short notice to an undertaking concemed. 66 Article 7(4) ensures that, if a Member State has opted for a period according to 12 Article 12(2), this period is abided by. In case that it is not, it would seem only logical that Member States provide for the automatic, or at least the regular, rejection of a precipitate application for another intra-corporate transfer by the same third-country national.

Article 8 Withdrawal or non-renewal of the intra-corporate transferee permit I. Member States shall withdraw an intra-corporate transferee permit in any of the following cases: (a) where it was fraudulently acquired, or falsified, or tampered with; (b) where the intra-corporate transferee is residing in the Member State concerned for purposes other than those for which he or she was authorised to reside; (c) where the host entity was established for the main purpose of facilitating the entry of intra-corporate transferees. 2. Member States shall, if appropriate, withdraw an intra-corporate transferee permit where the employer or the host entity has been sanctioned in accordance with national law for undeclared work and/or illegal employmenL 3. Member States shall refuse to renew an intra-corporate transferee permit in any of the following cases: (a) where it was fraudulently acquired, or falsified, or tampered with; (b) where the intra-corporate transferee is residing in the Member State concerned for purposes other than those for which he or she was authorised to reside; (c) where the host entity was established for the main purpose of facilitating the entry of intra-corporate transferees; (d) where the maximum duration of stay as defined in Article 12(1) has been reached. 4. Member States shall, if appropriate, refuse to renew an intra-corporate transferee permit where the employer or the host entity has been sanctioned in accordance with national law for undeclared work and/or illegal employment. 5. Member States may withdraw or refuse to renew an intra-corporate transferee permit in any of the following cases: (a) where Article 5 is not or is no longer complied with; (b) where the employer or the host entity has failed to meet its legal obligations regarding social security, taxation, labour rights or worlcing conditions; (c) where the employer's or the host entity's business is being or has been wound up under national insolvency laws or if no economic activity is taking place; (d) where the intra-corporate transferee has not complied with the mobility rules set out in Articles 21 and 22. 6. Without prejudice to paragraphs I and 3, any decision to withdraw or to refuse to renew an intra-corporate transferee permit shall take account of the specific circumstances of the case and respect the principle of proportionality.

"'See Bayreuther, Arbeitsrecht im Richtlinienvorschlag. p. 405, 409-410.

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I. General remarks.............................................................................................

mn. 1

II. Mandatory grounds for withdrawal and non-renewal (Article 8(1) and (3))..................................................................................... Ill. Discretionary ground for withdrawal and non-renewal (Article 8(2) and (4))...................................................................................... IV. Facultative grounds for withdrawal and non-renewal (Article 8(5)).....

2

7 8

I. General remarks I

Article 8 contains a non-exhaustive list67 of the grounds for withdrawal ·and the grounds for non-renewal of the ICT permit. Contrary to what it seems at first glance, the grounds are identical, with the sole exception of Article 8(3)(d).

II. Mandatory grounds for withdrawal and non-renewal (Article 8(1) and (3)) 2 3

4

5 6

Article 8(1) and (3) contain three identical mandatory grounds for withdrawal and non-renewal: The wording of Article S(l)(a) and (3)(a) is partly similar to Article 7(1)(b), but here it refers to the ICT permit, not to the evidence. Thus, in case that the process of acquisition of the permit as well as the permit itself is not correct, the authorities have to withdraw or refuse to renew the permit. The cases encompassed by Article 7(1)(b) are covered by the first alternative of Article 8(I)(a). Article S(l)(b) and (3)(b) are important measures to sanction misuse of this Directive. It may not be applied as Jong as the intra-corporate transfer is the primary purpose of the residence of the third-country national. However, despite the wording ('purposes'), one other purpose dominating the residence would seem to be sufficient to fulfil the criterion. Article 8(l)(c) and (3)(c) are identical with Article 7(1)(c) (see above Article 7 MN6). Article 8(3)(d) serves to ensure that the maximum duration of the transfer according to Article 12(1) is not exceeded. It complements Article 13(2) and Article 15(5). As these provisions guarantee that no ICT permit which is valid for a longer period than the one defined by Article 12( l) may exist, no corresponding ground for withdrawal in Article 8( I) was needed.

III. Discretionary ground for withdrawal and non-renewal (Article 8(2) and (4)) 7

The ground for withdrawal and non-renewal provided for in Article 8(2) and (4) is identical to the one of Article 7(2) (see above Article 7 MN 8-9).

67 See, above Artide 7 MN 2 and, arguing for the contrary, Peers/Guild/Tomkin, EU Immigration and Asylum Law (Maninus Nijhoff, 2012), p. 98.

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IV. Facultative grounds for withdrawal and non-renewal (Article 8(5)) Article 8(5)(a) means that the criteria of admission do not have to be fulfilled during 8 the entire transfer (except for Article 5(4)(b) where it is explicitly stated). However, Member States' authorities need to take into account the significance of the admission criteria, in particular of the mandatory ones. This follows from their objective, Article 7 (l)(a) and the fact that such decisions might affect other Member States via intra-EU mobility. Therefore, the reasons why an ICT permit is renewed or not withdrawn although Article 5 is not or is no longer complied with have to be very well founded and outweigh the importance of the admission criteria (see also Article 8(6)). Article 8(5)(b) and (c) are identical with Article 7(3)(a) and (b) (see above Article 7 9 MN IO). Article 8(5)(d) contains the possibility for Member States to sanction third-country 10 nationals for any non-compliance with the mobility rules set out in Articles 21 and 22. 68 Other sanctions than the withdrawal or the non-renewal of the ICT permit may be provided for on the basis of Article 9(3).

Article 9 Sanctions I. Member States may hold the host entity responsible for failure to comply with the conditions of admission, stay and mobility laid down in this Directive. 2. The Member State concerned shall provide for sanctions where the host entity is held responsible in accordance with paragraph I. Those sanctions shall be effective, proportionate and dissuasive. 3. Member States shall provide for measures to prevent possible abuses and to sanction infringements of this Directive. Measures shall include monitoring, assessment and, where appropriate, inspection in accordance with national law or administrative practice.

Article 9 contains general rules on measures to prevent and penalise infringements and abuse of the Directive. The Employer Sanctions Directive 2009/52/EC complements Article 9(1) and (2), but has to be considered as lex specialis in relation to the wide and general scope of Article 9(3). Article 9(1) and (2) leave it to the discretion of the Member States to provide for 2 sanctions against the host entity in case that the conditions of admission, slay and mobility are not complied with. If they decide to do so, however, those sanctions must be eff~tive, proportionate and dissuasive. Articles 11(9) and 23(7) are Jex specialis to these provisions. Article 9(3) obliges Member States to at least monitor, assess and, where appro- 3 priate, inspect whether the transposed provisions of the Directive are abused or infringed. In addition, Article 9(3) functions as a general clause which enables the Member 4 States to provide for any further measures in order to prevent abuse and to sanction violations of the Directive. Recital 29 specifies that such measures could, in particular, 68 Member States may also pro\ide for possible sanctions against the host entity according Articles 23(7) and 9( I) and (2).

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consist of financial sanctions or measures as listed in Article 7 of the Employer Sanctions Directive 2009/52/EC. All sanctions have to be effective, proportionate and dissuasive. Recital 12 clarifies that, on the basis of national law, sanctions may be directed against an ICT's employer established in a third country. 4a Article 7(l)(c) indicates that an obvious abuse of this Directive is the scenario where the host entity was established for the main purpose of facilitating the entry of intra-corporate transferees. In Paoletti et al., the ECJ stated with regard to a comparable situation that EU law, in particular the principles of legality and proportionality according to Article 49 CFR, have to be observed when punishing any person who facilitated the unauthorised entry of a third-country national or attempted to do so. 69

CHAPTER III PROCEDURE AND PERMIT Article JO Access to information I. Member States shall make easily aaessible to applicants the information on all the documentary evidence needed for an application and information on entry and residence. including the rights, obligations and procedural safeguards, of the intracorporate transferee and of bis or her family memben. Member States shall also make easily available information on the procedures applicable to the short-term mobility referred to in Article 21(2) and to the long-term mobility referred to in Article 22(1). 2. The Member States concerned shall make available information to the host entity on the right of Member States to impose sanctions in accordance with Articles 9 and 23.

I

The information requirements for the Member States were extended considerably during the negotiation process. 70 With a view to the complexity of the intra-EU mobility scheme and the multiple options for transpositions contained therein, it was particularly important that the obligation to inform about the respective procedures was added. 71 2 Article 10(1) now obliges Member States to make available all information on admission, entry, residence and mobility procedures that is essential to ICTs and their family members. Apart from prescribing that access to information shall be easy, the provision contains no further specifications on how the information is to be made accessible. In the digital age, a central website in simple, at least English language seems to constitute the minimum in this respect. 3 In order to enhance their effect, information on possible sanctions under this Directive has to be made available to the host entities (Article 10(2)). Besides the sanctions provided for in Articles 9 and 23, this obligation should also include, where applicable, the sanctions according to Article 11(9).

,,. ECJ, Paoletti et al., C-218/15, EU:C:2016:748. Compare Article 9 of the Commission Proposal. COM(2010) 378, p. 23. 71 See Klaus. Die ICT-Richtlinie, p. I, 7.

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Article 11 Applications for an intra-corporate transferee permit or a permit for long-term mobility I. Member States shall determine whether an application is to be submitted by the third-country national or by the host entity. Member States may also decide to allow an application from either of the two. 2. The application for an intra-corporate transferee permit shall be submitted when the third-country national is residing outside the territory of the Member State to which admission is sought. 3. The application for an intra-corporate transferee permit shall be submitted to the authorities of the Member State where the first stay takes place. Where the first stay is not the longest, the application shall be submitted to the authorities of the Member State where the longest overall stay is to take place during the transfer. 4. Member States shall designate the authorities competent to receive the application and to issue the intra-corporate transferee permit or the permit for long-term mobility. 5. The applicant shall be entitled to submit an application in a single application procedure. 6. Simplified procedures relating to the issue of intra-corporate transferee permits, permits for long-term mobility, permits granted to family members of an intra-corporate transferee, and visas may be made available to entities or to undertakings or groups of undertakings that have been recognised for that purpose by Member States in accordance with their national law or administrative practice. Recognition shall be regularly reassessed. 7. The simplified procedures provided for in paragraph 6 shall at least include: (a) exempting the applicant from presenting some of the evidence referred to in Article 5 or in point (a) of Article 22(2); (b) a fast-track admission procedure allowing intra-corporate transferee permits and permits for long-term mobility to be issued within a shorter time than specified in Article 15(1) or in point (b) of Article 22(2); and/or (c) facilitated and/or accelerated procedures in relation to the issue of the requisite visas. 8. Entities or undertakings or groups of undertakings which have been recognised in accordance with paragraph 6 shall notify to the relevant authority any modification affecting the conditions for recognition without delay and, in any event, within 30 days. 9. Member States shall provide for appropriate sanctions, including revocation of recognition, in the event of failure to notify the relevant authority. Content I. General application procedures (Article II (I) to (5))............................ II. Facultative simplified procedures (Article 11(6) to (9)) ........................

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I. General application procedures (Article 11(1) to (5)) Concerning the procedure generally applicable to applications for permits under this Directive, this article determines by whom (Article 11(1)), from where (Article 11(2))i2 and to which authority (Article 11(4)) of which Member State (Article 11(3)) such applications have to be submitted. 2 In particular, Article 11(3) is of crucial importance to prevent circumvention of a Member State's admission conditions by intra-EU mobility. It results from the provision that ICTs may start their transfer in a Second Member State, but only if an JCT permit has been issued by the first Member State (see Article 21 MN 7). Member States.have to reject an application for an JCT permit or a permit for long-term mobility if Article 11 (5) is not observed. Consistently, Article 22(5) provides that this rule even applies in case of a renewal of a permit for long-term mobility, and infringements might also be sanctioned according to Article 23(7)(c). This entails a certain reduction of flexibility as it effectively prevents renewals of an JCT permit where the need to stay in the second Member State for a longer period than in the first Member State arises only after the admission by the first Member State. Without such a rule, however, companies could pick too easily a Member State with low admission conditions and (mis)use intra-EU mobility to send ICTs to the Member State where in fact they want them. 3 Article 11(5) guarantees the applicant's right to a procedure that, on the basis of one application, leads to a decision on the rights of residence and work (see Article 3(k) as well as Recital 30).

II. Facultative simplified procedures (Article 11 (6) to (9)) 4

s

Member States may provide for simplified procedures for the issuance of permits and visa under this Directive. The basis, and compensation, for simplification is the previous recognition of the involved entities or undertakings for this pwpose. Apart from the specifications in Article 11(6), (8) and (9) (see also Recital 31), the Member States have a v.ide discretion how to design the recognition procedures. The fact that Article l l(7)(a) allows Member States to exempt the applicant from presenting some of the evidence otherwise compulsively required for admission according to Article 5 might provoke Member States to opt for the more restrictive mobility rules (Articles 21(2) to (7) and 22(2) to (7)) and thus lead, paradoxically, to a more complicated EU-wide regime on the whole.

Article 12 Duration of an intra-corporate transfer I. The maximum duration of the intn-corporate transfer shall be three years for managen and specialists and one year for tninee employees after which they shall leave the territory of the Member States unless they obtain a residence permit on another basis in accordance with Union or national law. 72 With a view to Articles 2(1) and 3(b), Article 11(2) should in fact read 'when the third-country national is residing outside the territory of the Member States', see above Article 2 MN 3. For applications for mobile ICT permits, see Article 22(2)(c) and (e).

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2. Without prejudice to their obligations under international agreements, Member States may require a period of up to six months to elapse between the end of the maximum duration of a transfer referred to in pangraph I and another application concerning the same third-country national for the purposes of this Directive in the same Member State.

With a maximum duration 73 and a (facultative) waiting period, Article 12 determines a basic feature of this Directive's subject matter: in conformity with the EU-25 commitments under the GA TS, intra-corporate transfers are designed as temporary migration only. Applications that do not respect the maximum duration are to be rejected (Article 7 (l)(d)). Due to the temporary nature of the stay, the Long-Term Residents Directive 2003/109/EC does not apply to ICTs. 74 However, the temporary nature is not absolute: Firstly, ICTs may stay in (Article 12(1)) 2 or apply for immediate re-entry to the territory of the same Member State after the end of their transfer on the basis of a different residence permit. 75 In general, ICTs should have good chances to qualify for a Blue Card under Directive 2009/50/EC. Secondly, ICTs are not prevented from immediately applying for an intra-corporate transfer in another Member State.76 Thirdly, having regard to the ECJ in Payir and Article 4(l)(a), the temporary 2a character is considerably diminished for Turkish ICTs who may stay on in the EU on the basis of Article 6( 1) of Decision No 1/80 of the Association Council of 19 September 1980 on the development of the Association since 'the reasons for which [a Turkish national] was first granted the right to enter that territory or any temporal limitations attached to his right to work' cannot be invoked against an application for another work permit. 77 The provision's significance was enhanced during the negotiations when it was made 3 an independent article and the waiting period (Article 12(2)) was added. 78 It remains astounding that the waiting period is limited to the rather short period of up to six months and, moreover, that it is of facultative nature only, since it is a necessary complement to the maximum duration of Article 12(1). Without it, ICTs can simply leave the EU and immediately apply again, making their stay de facto permanent. This would contravene the temporary nature of the intra-corporate transfer and enable misuse, e.g. by permanently replacing a proper job by an JCT.

Article 13 Intra-corporate transferee permit I. Intra-corporate transferees who fulfil the admission criteria set out in Article 5 and for whom the competent authorities have taken a positive decision shall be issued· with an intra-corporate transferee permit. 2. The period of validity of the intra-corporate transferee permit shall be at least one year or the duration of the transfer to the territory of the Member State " In case of several consecutively issued !CT permits, the durations of the permits are to be cumulated (Recital I 7). ' 4 See Anicles 3(2)(e) and 4(2) Long-Term Residents Directive 2003/109/EC. ,s Peers/Guild/Tomkin, EU Immigration and Asylum Law (Maninus Nijhoff, 2012), p. JOO. ' 6 Cf. Lutz, in Minderhoud/de Lange (eds), The Intra Corporate Transferee Directive, p. 24. r. ECJ, Payir, C-294/06, EU:C:2008:36, para 43. '"Compare the original Anide 16(3) of the Commission Proposal, COM(2010) 378, p. 28.

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concerned, whichever is shorter, and may be mended to a muimum of three yean for managers and specialisu and one year for trainee employees. 3. The intra-corporate transferee permit shall be issued by the competent authorities of the Member State using the uniform format laid down in Regulation (EC) No 1030/2002. 4. Under the heading 'type of permit', in accordance with point (a) 6.4 of the Annex to Regulation (EC) No 1030/2002, the Member States shall enter 'ICT'. Member States may also add an indication in their official language or languages. 5. Member States shall not issue any additional permits, in particular work permits of any kind. 6. Member States may indicate additional information relating to the employment activity during the intra-corporate transfer of the third-country national in paper format, and/or store such data in electronic format as referred to in Article 4 of Regulation (EC) No 1030/2002 and point (a)l6 of the Annex thereto. 7. The Member State concerned shall grant third-country nationals whose application for admission has been accepted every facility to obtain the requisite visa. Content

I. The specific intra-corporate transferee permit (Anicle 13(1) and (5)) II. Specifications concerning the JCT permit (Article 13(2) to (4) and (6)) Ill. Facilitation to obtain requisite visa (Article 13(7)) .................................

mn. I 3 4

I. The specific intra-corporate transferee permit (Article 13(1) and (5)) Article 13(1) obliges the Member States to introduce a specific permit for lCTs. Together with the prohibition to issue any additional permits (Article 13(5)), this brings about clarity and harmonization which is important for the mobility scheme where the permit issued by the first Member State plays a crucial role (see Article 20). However, a designation under the heading 'remarks' would have been sufficient to serve the purpose. 2 The distinction in Article 13( 1) between the fulfilment of the admission criteria and the positive decision by the authorities indicates that the Member States are given a certain discretion beyond the Articles 5 to 7 (see above Article 7 MN 2).

II. Specifications concerning the ICT permit (Article 13(2) to (4) and (6)) 3

Furthermore, Article 13 contains detailed specifications on the JCT permit, namely on its period of validity (Article 13(2); see also Article 12(1)), its format (Article 13(3)), the mandatory and facultative entries under the heading 'type of permit' (Article 13(4)) as well as possible indication of additional information relating to the employment activity (Article 13(6); see also Recital 35).

III. Facilitation to obtain requisite visa (Article 13(7)) 4

With respect to the Member States' obligation to make it as easy as possible within the existing legal framework for the ICT to obtain a necessary visa once a positive decision on admission has been taken (Article 13(7); see also Recital 33), third-country 1028

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nationals who are lawfully present in a Member State's territory may not be required to leave and apply in his or her country of residence for that visa.

Article 14 Modifications affecting the conditions for admission during the stay Any modification during the stay that affects the conditions for admission set out in Article 5 shall be notified by the applicant to the competent authorities of the Member State concerned. Article 14 complements Articles 5(7) and S(S)(a). It is a crucial precondition for ensuring that the conditions for admission are fulfilled during the whole stay of the third-country national. If this is not the case (any more), the Member States may (or, with a view to the significance of the admission criteria, rather should) withdraw or refuse to renew an ICT permit (see above Article 8 MN 8). As the obligation to notify modifications is important for fighting misuse of the 2 Directive, it is to be interpreted rather extensively in case of doubt. Furthermore, given the provision's significance, it would seem only reasonable if 3 Member States provided for sanctions on the basis of Article 9(3) in the event of failure to notify the relevant authorities, all the more since Article 11(9) explicitly provides for sanctions in a comparable situation.

Article 15

Procedural safeguards 1. The competent authorities of the Member State concerned shall adopt a decision on the application for an intra-corporate transferee permit or a renewal of it and notify the decision to the applicant in writing, in accordance with the notification procedures under national law, as soon as possible but not later than 90 days from the date on which the complete application was submitted. 2. Where the information or documentation supplied in support of the application is incomplete, the competent authorities shall notify the applicant within a reasonable period of the additional information that is required and set a reasonable deadline for providing it. The period referred to in paragraph I shall be suspended until the competent authorities have received the additional information required. 3. Reasons for a decision declaring inadmissible or rejecting an application or refusing renewal shall be given to the applicant in writing. Reasons for a decision withdrawing an intra-corporate transferee permit shall be given in writing to the intra-corporate transferee and to the host entity. 4. Any decision declaring inadmissible or rejecting the application, refusing renewal, or withdrawing an intra-corporate transferee permit shall be open to legal challenge in the Member State concerned, in accordance with national law. The written notification shall specify the court or administrative authority with which an appeal may be lodged and the time-limit for lodging the appeal. 5. Within the period referred to in Article 12(1) an applicant shall be allowed to submit an application for renewal before the expiry of the intra-corporate transferee permit.· Member States may set a maximum deadline of 90 days prior to the expiry of the intra-corporate transferee permit for submitting an application for renewal.

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6. Where the validity of the intra-corporate tranaferee permit expires during the procedure for renewal, Member States aball allow the intra-corporate transferee to stay on their territory until the competent authorities have taken a decision on the application. In such a case. they may issue, where required under national law, national temporary residence permits or equivalent authorisations. 1

2

2a

2b

3

Article 15 provides for the usual 79 procedural specifications which mainly serve as safeguards for the applicant: the time frame (modified in case of an incomplete application), the form and the addressees of the decision and of its reasons in case that it is negative, and the requirement that any negative decision may be legally challenged. It applies accordingly to applications by family members (Article 19(4)). Although the Directive differentiates between visa and ICT permits (see Article· 5(1 )(0) and the wording of Article 15 refers to the latter only, the procedural safeguards apply also to visa that equal ICT pemlits with respect to its requirements (see Articles 3(i) and 13).80 Article 15(3) obliges the Member States authorities to give reasons for a negative decision in writing. With regard to Article 15(4), the essential considerations for a negative decision should be stated in a detailed manner unless exceptional circwnstances such as public security matters arise. However, neither from this Directive nor from EU data protection law follows the right to be informed about the entire administrative file or have access to the file itself.81 Even though the Directive is silent about it and regardless of national procedural law in question, the addressee of a negative decision has a right to be beard before the decision is taken. 82 Changes during the negotiations concerned in particular a considerable prolongation of the maximum processing time (Article 15(1)) and the addition of Article 15(5) and (6) as proper provisions on the renewal of a permit.83 Apart from the latter, however, in general the requirements and the procedure for renewal are identical to those for the initial application for admission (see e.g. Article 15(3) and (4)).

Article 16 Fees Member States may require the payment of fees for the handling of applications in accordance with this Directive. The level of such fees shall not be disproportionate or excessive.

1

Article 16 explicitly allows Member States to charge fees for the handling of applications, namely for the first issuance and the renewal of permits (see Articles 5, 19, 22 and 15(5)) and, where required, visas. In contrast, fees for the handling of notifications according to Article 21 may not be based on this article. 2 In principle, the Member States have a wide discretion as to the level of the fees since they know best the equivalent value for the administrative handling of a certain type of ;,, See c. g. Article 11 Blue Card Directive 2009/50/EC and Article 18 Seasonal Workers Directive 2014/ 36/EU. 80

See Klaus. Die ICT-Richtlinie, p. I, 5.

Cf. ECJ. Y.S., C-141/12, EU:C:2014:2081, paras 46-48, 50-60. See ECJ, &nsada Benallal, C-161/15, EU:C:2016:175, para 33 . ., See for an overview Council doc. 6667/13 of 22 February 2013, p. 75-80. •1

ai

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application. However, Article 16 expressly states that the fees may not exceed an ultimate absolute or rdative level. In particular, Member States may not provide for an amount of fees that has the effect of creating a substantial and decisive obstacle to the obtaining of the permits under this Directive.114

CHAPTER IV

RIGHTS Article 17 Rights on the basis of the intra-corporate transferee permit During the period of validity of an intra-corporate transferee permit, the holder shall enjoy at least the following rights: (a) the right to enter and stay in the territory of the fint Member State; (b) free access to the entire territory of the fint Member State in accordance with its national law; (c) the right to exercise the specific employment activity authorised under the permit in accordance with national law in any host entity belonging to the undertaking or the group of undertakings in the fint Member State. The rights referred to in points (a) to (c) of the fint paragraph of this Article shall be enjoyed in second Member States in accordance with Article 20. Article 17 guarantees those core rights to the holders of a valid ICT permit which are indispensable for executing the intra-corporate transfer. In second Member States, the exercise of these rights may be subject to additional requirements (see Articles 20 to 23). The ICT's right to work (Article l 7(c)) is limited, formally, by the respective 2 authorisation and, substantively, by the essential objective of the transfer. However, and despite the use of the term 'host entity', the ICT is generally not confined to work only in 'the entity to which the intra-corporate transferee is transferred' (see the definition of 'host entity' in Article 3(d)). In fact, he or she may exercise the employment in 'any' entity belonging to the undertaking or to the group of undertakings in the respective Member State (see Article 21(1) and above Article 3 MN 6) as well as, in accordance with national law, at the site of clients.85

Article 18 Right to equal treatment 1. Whatever the law applicable to the employment relationship, and without prejudice to point (b) of Article 5(4), intra-corporate transferees admitted under this Directive shall enjoy at least equal treatment with persons covered by Directive 96/71/ EC with regard to the terms and conditions of employment in accordance with Article 3 of Directive 96/71/EC in the Member State where the work is carried out. 2. Intn-corporate transferees shall enjoy equal treatment with nationals of the Member State where the work is carried out as regards: 94 See the (loo extensive) iudgmenl of the ECJ in Commi.ssion v. Netherlands, C-508/10, EU:C:2012:243, paras 69.:. 73, where already a 'significant financial impact' of the charged fees is declared to be unlawful. "' See Recital 36 as weU as Luiz, in Minderhoud/de Lange (eds), The Intra Corporate Transf~ree Directive, p. 25.

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(a) freedom of association and affiliation and membenhip of an organisation representing workers or employers or of any organisation whose members are engaged in a specific occupation, including the rights and benefits conferred by such organisations, without prejudice to the national provisions on public policy and public security; (b) recognition of diplomas, certificates and other professional qualifications in accordance with the relevant national procedures; (c) provisions in national law regarding the branches of social security defined in Article 3 of Regulation (EC) No 883/2004, unless the law of the country of origin applies by virtue of bilateral agreements or the national law of the Member State where the work is carried out, ensuring that the intra-corporate transferee is covered by the social security legislation in one of those countries. In the event of intra-EU mobility, and without prejudice to bilateral agreements ensuring that the intra-corporate transferee is covered by the national law of the country of origin, Regulation (EU) No 1231/2010 shall apply accordingly; (d) without prejudice to Regulation (EU) No 1231/2010 and to bilateral agreements, payment of old-age, invalidity and death statutory pensions based on the intracorporate transferees' previous employment and acquired by intra-corporate transferees moving to a third country, or the survivors of such intra-corporate transferees residing in a third country deriving rights from the intra-corporate transferee, in accordance with the legislation set out in Article 3 of Regulation (EC) No 883/2004, under the same conditions and at the same rates as the nationals of the Member State concerned when they move to a third country; (e) access to goods and services and the supply of goods and services made available to the public, except procedures for obtaining housing as provided for by national law, without prejudice to freedom of contract in accordance with Union and national law, and services afforded by public employment offices. The bilatenl agreements or national law referred to in this paragraph shall constitute international agreements or Member States' provisions within the meaning of Article 4. 3. Without prejudice to Regulation (EU) No 1231/2010, Member Slates may decide that point (c) of paragraph 2 with regard to family benefits shall not apply to intra-corporate transferees who have been authorised to reside and work in the territory of a Member State for a period not exceeding nine months. 4. This Article shall be without prejudice to the right of the Member State to withdraw or to refuse to renew the permit in accordance with Article 8. Content

mn. I. General remarks and drafting history........................................................ I II. Equal treatment with regard to terms and conditions of employment (Article 18(1)).......................................................................... 5 III. Equal treatment with nationals of the host Member State (Article 18(2) and (3)) ................................................................................... 7 IV. Without prejudice to the right of the Member State to withdraw or to refuse to renew the JCT permit (Article 18( 4)) .................................. 11

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I. General remarks and dnfting history Article 18 determines in which areas and at what levels ICTs have a right to equal treatment. 86 It follows from the extensive display of rights and the explicit references to other legal instruments that it is an exclusive provision at EU level.87 At the same time, Article 18 is a minimum standard provision (see Article 4(2)): at national level, Member States may provide for higher standards with regard to terms and conditions of employment (see Article 18(1): 'at least') and grant equal treatment with nationals with regard to more areas than those listed in Article 18(2). Article 18 establishes individual rights for ICTsM and corresponding duties for Member States as well as, with regard to the working conditions, for private employers. The provision has to be transposed in a way that ICTs may enforce their rights in court. 89 As this enforcement might be hampered by the fact that the ICT's employer is established in a third country, the examination of the working conditions during the admission procedure (Article 5(4)) is of crucial importance in order to effectively guarantee these rights. The provision was the subject of intensive discussions during the negotiations. 90 In particular, the Parliament demanded general equal treatment with nationals of the Member State where the ICT is transferred to (hence also with respect to the working conditions), but the differing positions of the Commission and the Council led to the compromise contained in Article 18(1) and Article 5(4).91 Moreover, the exclusion of family benefits from the right of equal treatment was controversial until the end of the negotiations between members of the Council (demanding a complete exclusion) and the Parliament (fully opposed to such option), resulting in the compromise of Article 18(3). Some argue that the equal treatment clauses of EU labour migration directives such as this Directive violate international and European human rights law because they do not provide for equal treatment with nationals of the host member state on the whole. 92 However, this argument is not supported here since there are, at least regarding this Directive, sufficient and reasonable grounds for the differentiated equal treatment regime (see below MN 5, 9).

I

2

3

4

4a

II. Equal treatment with regard to terms and conditions of employment (Article 18(1)) Since ICTs are in a working situation comparable to the one of posted workers in S terms of Directive 96/71/EC,93 Article 18(1) guarantees them the right to terms and 16 As to the question which country's employment law is applicable, see Article 3 MN 4 footnote 29. " For a critical, in-depth analysis of Article 18 and its relation to other legal instruments see Verschueren, in Minderhoud/de Lange (eds), The Intra Corporate Transferee Directive, p. 44 et seq. a H~er, the right to equal treatment does not convey a right to entry and stay, see Brinkmann, in Beichel-Benedetti/Janda (eds), Hohenheimer Horizonte, p. 113. 19 See Bayreuther, Arbeitsrecht irn Richtlinienvorschlag, p. 405, 406. 90 For a detailed account of the negotiations, see Tottos, in Minderhoud/de Lange (eds), The Intra Corporate Transferee Directive, p. 10-13. 91 See for an overview Council doc. 6667/ l 3 of 22 February 2013, p. 82, as well as Peers/Guild/Tomkin, EU Immigration and Asylum Low (Martinus Nijhoff, 2012), p. 108-110 (arguing for the Parliament's position). ' 2 See e.g. FriOriksdottir, What Happened to Equality? The Construction of the Right to Equal Treatment of Third-Country Nationals in European Union Law on Labour Migration (Brill/Nijhoff, 2017), p. 324-327. 91 Compare in panicular Article 1(3)(b) Posted Wort.en Directive 96/71/EC.

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conditiom of employment like they apply to posted workers according to Article 3 Posted Workers Directive 96/71/EC. This means that, as a minimum standard, the host Member State's national law usually applies to ICTs only with regard to the core working conditions.94 The ICTs' right is complemented by the obligations of the Member States provided for in Article 5(4)(a). 6 With regard to remuneration, Article 5(4)(b) obliges Member States to ensure equal treatment even with nationals of the host Member State during the entire transfer. Thus, ICTs have to be granted 'the real wage' that nationals of the host Member State receive for comparable positions, as opposed to the mere minimum wage applicable in accordance with Directive 96/71/EC.95 Since Article 18(1) does not contain a corresponding individual right, however, Member States' transposition may provide for public enforcement measures only. ·

III. Equal treatment with nationals of the host Member State (Article 18(2) and (3)) Article 18(2) lists the areas where ICTs have the right to equal treatment with the nationals of the respective Member State. While the equal treatment clauses with regard to the freedom of association and affiliation and the recognition of professional qualifications (see Recital 22) are in line with other migration directives,96 the provisions regarding the payment of statutory pensions97 and the access to goods and services98 were adapted specifically for this Directive. 8 The right to have access to social security was limited during the negotiations, against the position of the Parliament.99 Instead of the provisions in national law regarding the branches of social security defined in Article 3 of Social Security Coordination Regulation (EC) No 883/2004, now the law of the country of origin may widely apply, namely when the national law of the Member State where the work is carried out provides for this or by virtue of any bilateral agreement (see Article 18(2)(c) and Recital 38). 8a Where the law of the country of origin does not apply, access to social security in the first and second Member State(s) should, in general, be open to ICTs without any problem, since intra-corporate transfers covered by this Directive, including those of trainee ICTs, involve gainful employment However, as the ICT Directive does not limit the Member States' competence to design their social security system (see Recital 38), any specific social security benefit may only be claimed if the conditions applicable in the respective national law a met. 100 7

94 See Brinkmann, in Beichcl-Benedetti/Janda (eds), Hohenheimer Horizonte, p. 108, as well as Verschueren, Employment and Social Security Rights, p. 391, both specifying the relevant working conditions; a critical view on this is taken by Costello/Freedland, 'Seasonal Workers and Intra-Corporate Transferees in EU I.aw: Capital's Handmaidens?', in: Howe/Owens (eds), Temporary Labour Migration in the Global Era the Regulatory Challenges (Han, 2016), p. 62-63. "' Verschueren, Employment and Social Security Rights, p. 392. 96 See e.g. Article 14(l)(b) and (d) Blue Card Directive 2009/50/EC or Article 12(J)(b) and (d) Single Permit Directive 2011/98/EU. '17 It was clarified that this right passes on to the survivors of an ICT as far as they reside in a third country and derive rights from the ICT. • Procedures for obtaining housing and any services afforded by public employment offices were excluded from this right. "'See for an overview Council doc. 6667/13 of 22 February 2013, p. 83-84. 100 See Janda, in Wollenschliger (ed), Enzyklopadie Europarecht, Band X, § 25 paras 140-141.

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The criteria to establish if a benefit is a social security benefit in the sense of 8b Article 3 of Social Security Coordination Regulation (EC) No 883/2004 were set out by the ECJ in Martinez Silva. 101 Obviously this depends neither on the benefit's classification by national legislation nor on the method by which a benefit is financed, but rather on the benefit's purposes and the conditions on which it is granted. In particular, the benefit needs to be granted to recipients 'without any individual and discretionary assessment of personal needs'. Benefits qualify as family benefits if they are granted automatically to families where 'objective, legally defined criteria' relating in particular 'to their size, income and capital resources' are met and 'if they are intended to meet family expenses'. 102 Article 18(3) allows Member States to grant equal treatment with regard to family 9 benefits only to ICTs that have been admitted for more than nine months. This derogation from the general rule of equal treatment may be relied on 'only if the authorities in the Member State concerned responsible for the implementation of that directive have stated dearly that they intended to rely on them'. 103 The Council enforced the option since for many Member States such benefits are meant to support a positive demographic development, so that it would seem contradictive to grant them to a thirdcountry national staying in the Member State for a few months only (see Recital 38). For ICTs with an authorisation valid for more than nine months, no restrictions may be applied, i.e. the right to equal treatment with regard to family benefits commences on the first day of the transfer. Since Article 1 of Regulation (EU) No 1231/2010 requires that a third country national 10 is 'in a situation which is not confined in all respects within a single Member State', it applies accordingly only in the event of intn-EU mobility (see Recital 39). Where a mobile ICT's social benefit depends on insurance periods (e.g. old-age pension), periods completed in the territory of another Member State may be taken into account even if they were completed before this Directive entered into force. 104 However, EU regulations on social security (including child allowance) do not apply in case that the intra-corporate transfer takes place only in one Member State, even if the ICT's children are EU citizens. 105

IV. Without prejudice to the right of the Member State to withdraw or to refuse to renew the JCT permit (Article 18(4)) Article 18(4) is meant to prevent any deduction of a right of residence from the rights 11 to equal treatment contained this article. 106

101

ECJ. Martinez Silva, C-449/16, EU:C:2017:485, para 20.

'°1 Ibid., para 22.

103 Ibid., para 29; see also Yerschueren, Employment and Social Security Rights, p. 395-396, who argues that human rights law obliges Member States to implement the possible exceptions to equal

treatment 'only when it is duly justified'. 104 Cf. ECJ, Wieland & Rothwangl. C-465/14, EU:C:2016:820, para 52. 105 Cf. ECJ, Xhymshiti, C-247/09, EU:C:2010:698, paras 40-45. 1°" See also Ankle 14(3) Blue Card Directive 2009/50/EC and, as to that provision's background, Kuczynski/Solka, 'Die Hochqualifiz.ienenrichtlinie', Zeitschrift fiir Ausliinderrecht (2009), p. 219, 226-227, as well as ECJ, Gattoussi, C-97/05, EU:C:2006:780, paras 38-43.

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Article 19 Family members 1. Directive 2003/86/EC shall apply in the first Member State and in second Member States which allow the intra-corporate transferee to stay and work on their territory in accordance with Article 22 of this Directive, subject to the derogations laid down in this Article. 2. By way of derogation from Article 3(1) and Article 8 of Directive 2003/86/EC, family reunification in the Member States shall not be made dependent on the requirement that the holder of the permit issued by those Member States. on the basis of this Directive has reasonable prospects of obtaining the right of permanent residence and has a minimum period of residence. 3. By way of derogation from the third subpangraph of Article 4(1) and from Article 7(2) of Directive 2003/86/EC, the integration measures referred to therein may be applied by the Member States only after the persons concerned have been granted family reunification. 4. By way of derogation from the first subparagraph of Article 5(4) of Directive 2003/86/EC, residence permits for family members shall be granted by a Member State, if the conditions for family reunification are fulfilled, within 90 days from the date on which the complete application was submitted. The competent authority of the Member State shall process the residence permit application for the intracorporate transferee's family members at the same time as the application for the intra-corporate transferee permit or the permit for long-term mobility, in cases where the residence permit application for the intra-corporate transferee's family members is submitted at the same time. The procedural safeguards laid down in Article 15 shall apply accordingly. 5. By way of derogation from Article 13(2) of Directive 2003/86/EC, the duntion of validity of the residence permits of family members in a Member State shall, as a general rule, end on the date of expiry of the intra-corporate transferee perm.it or the permit for long-term mobility issued by that Member State. 6. By way of derogation from Article 14(2) of Directive 2003/86/EC and without prejudice to the principle of preference for Union citizens as expressed in the relevant provisions of the relevant Acts of Accession, the family members of the intra-corporate transferee who have been granted family reunification shall be entitled to have access to employment and self-employed activity in the territory of the Member State which issued the family member residence permit. Content I. General remarks.............................................................................................. II. Derogations from the Family Reunification Directive 2003/86/EC

(Article 19(2) to (6)).......................................................................................

mn. I

4

I. General remarks 1

Article 19 determines the minimum rights of ICTs' family members. When admitting an ICT from a third country as well as in case of long-term mobility, Member States have to apply the regime of the Family Reunification Directive 2003/86/EC (Article I 9(1 )), 1036

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modified by the derogations laid down in Article 19(2) to (6). The latter create a set of more favourable conditions for lCTs' family reunification that removes important obstacles 107 and significantly enhances the attractiveness of the rules governing intracorporate transfers (see Recital 40). According to Article 4(2), Member States are free to adopt or retain even more 2 favourable provisions, e.g. to privilege family members of an ICT also in the framework of short-term mobility (Article 21). As Article 4(2) also lists the definition of 'family members' (Article 3(h)), Member 3 States may even extend the group of beneficiaries of Article 19 (see in this context above Article 4 MN 4). In principle, however, only third-country nationals belonging to the ICT's nuclear family, as specified in Article 4(1) Family Reunification Directive 2003/86/EC. are covered

II. Derogations from the Family Reunification Directive 2003/86/EC (Article 19(2) to (6)) The derogations provided for by Article 19(2) to (6) correspond to a large extent to 4 those applicable to family members of Blue Card holders. 108 Article 19(4), however, provides for an even more accelerated 109 application pro- 5 cedure which is widely synchronised with the application procedure of the ICT. In particular, the applicable safeguards contained in Article 15(2), (3) and the second sentence of Article 15(4) contain more specific procedural rules than the Family Reunification Directive 2003/86/EC. As Article 14(1) Family Reunification Directive 2003/86/EC, which entitles the family 6 members only 'in the same way as the sponsor', is not derogated from in Article 19(6), the labour market access for family members keeps on being accessorial to the right of labour market access of the ICT himself. 110 In particular, Member States might apply the same measures based on Article 6 as applicable to the ICT.

CHAPTER V INTRA-EU MOBILITY Article 20 Mobility Third-country nationals who bold a valid intn-corporate tnnsferee permit issued by the fint Member State may, on the basis of that permit and a valid travel document and under the conditions laid down in Article 21 and 22 and subject to Article 23, enter, stay and work in one or several second Member States.

101 E.g. Articles 3(1) and 8 Family Reunification Directive 2003/86/EC would have, due to the ICT's temporary stay, more or less excluded the possibility of family reunification for ICTs, Stt Peers/Guild/ Tomkin, EU Immigration and Asylum Law (Martinus Nijhoff, 2012), p. IOI. ,,. Stt for details on the equivalent derogations above Herzog-Schmidt/Lehner, Blue Card Directive 2009/50/EC. Article 15 MN 2-3 and 5. "'" The milllirnum processing time of 90 days is considerably shoner than the nine months provided for in Article· 5(4) Family Reunification Directive 2003/86/EC a.s well as the six months provided for in Article 15(4) Blue Card Directive 2009/50/EC. 110 Sec Bomemann/Klarmann, Family Reunification Directive 2003/86/EC. Anicle 14 MN 6.

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Article 20 is the basic provision of the Directive's intra-EU mobility scheme. According to this scheme, ICTs may move to Member States other than the one that issued their ICT permit for short periods of time under few conditions only (short-term mobility, Article 21). For longer stays, those 'second' Member States (see Article 3(n)) may provide for an application procedure (long-term mobility, Article 22). The scheme is as unique and innovative as it is complex and problematic, 111 since it enables ICTs to move around and work in the EU Member States autonomously from the well-known and well-proven Schengen acquis, 112 mainly on the basis of the JCT permit issued by the first Member State. At first glance, this might appear appealing: third-country nationals with an JCT permit of a Member State not implementing in full the Schengen borders acquis will not need a Schengen visa for mobility, and short-term mobility is allowed for up to 90 days in any 180-day period per Member State instead of, according to Schengen mobility, only for an equivalent period in all Member States. However, those (rather minor) advantages are outweighed by the practical problems and risks for Schengen border control which are likely to occur due to the introduction of this additional way to enter the Schengen area for this very specific group of persons. Safeguards have been introduced to reduce those risks (see Articles 23 and 25), but one might well doubt if they are suitable to do so substantively (see e.g. Article 23( I)). Article 20 clarifies that intra-EU mobility for ICTs is only possible on the basis of a valid ICT permit (see Articles 21(1) and (8), 23(2) and (4)(e)) and a valid travel document (see Articles 21(3)(d) and 22(2)(a)(iv)). Another of these general requirements, regardless of the respective procedure opted for, is that the JCT is not considered to pose a threat to public policy, public security or public health (see Articles 21(9), 22(3)(a) in conjunction with 5(8), and 23(6)). On the basis of Article 79(5) TFEU, Member States may apply a quota or a labour market test (see above Article 6 MN 2-4) also in the framework of mobility. Indeed, the provision's wording seems to exclude this ('third-country nationals coming from third countries to their territory'), but then again many will agree that with respect to another part ('in order to seek work') the provision's meaning does go beyond the wording.Ill In contrast, it would run counter to the overall objective of Article 79(5) TFEU to provide Member States with effective means to protect their labour markets if corresponding measures could be easily circumvented by intra-EU mobility. Other interpretations risk to come into conflict with the fact that employment and labour market policies lie in the competence of the Member States (see Article 5(2) TFEU).

Article 21 Short-term mobility I. Third-country nationals who hold a valid intra-corporate tramferee permit issued by the finl Member State shall be entitled to stay in any second Member State and work in any other entity, established in the latter and belonging to the same undertaking or group of undertakings, for a period of up to 90 days in any 180-day period per Member State subject lo the conditions laid down in this Article.

111 See rather too exuberant Klaus, Die ICT-Richtlinie, p. I, 7. As to the scheme's genesis, see Tottos, in Minderhoud/de Lange (eds), The Intra Corporate Transferee Directive, p. 13-16. 112 According to a statement by the Council, the Parliament and the Commission, it is to be considered as lex specialis, see Council doc. 9346/14 ADD I of 5 May 2014, p. I. 11 l See e.g. Peers, Legislative Update, p. 219, 244-245.

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2. The second Member State may require the host entity in the first Member State to notify the first Member State and the second Member State of the intention of the intra-corporate transferee to work in an entity established in the second Member State. In such cases, the second Member State shall allow the notification to take place either: (a) al the time of the application in the first Member State, where the mobility lo the second Member State is already envisaged at that stage; or (b) after the intra-corporate transferee was admitted to the first Member State, as soon as the intended mobility to the second Member State is known. 3. The second Member Stale may require the notification to include the transmission or the following documents and information: (a) evidence that the host entity in the second Member State and the undertaking established in a third country belong to the same undertaking or group of undertakings; (b) the work contract and, if necessary, the assignment letter, which were transmitted to the first Member State in accordance with point (c) of Article 5(1); (c) where applicable, documentation certifying that the intra-corporate transferee fulfils the conditions laid down under the national law of the Member State concerned for Union citizens to exercise the regulated profession to which the application relates; (d) a valid travel document, as provided for in point (0 of Article 5(1); and (e) where not specified in any of the preceding documents, the planned duration and dates or the mobility. The second Member State may require those documents and that information to be presented in an official language of that Member State. 4. Where the notification has taken place in accordance with point (a) of paragraph 2, and where the second Member State has not raised any objection with the first Member State in accordance with paragraph 6, the mobility of the intracorporate transferee to the second Member Stale may take place at any moment within the period of validity of the intra-corporate transferee permit. 5. Where the notification has taken place in accordance with point (b) or paragraph 2, the mobility may be initiated after the notification to the second Member State immediately or at any moment thereafter within the period of validity of the intra-corporate transferee permiL 6. Based on the notification referred to in paragraph 2, the second Member State may object to the mobility of the intra-corporate transferee to its territory within 20 days from having received the notification, where: (a) the conditions set out in point (b) of Article 5(4) or in point (a), (c) or (d) of paragraph 3 of this Article are not complied with; (b) the documents presented were fraudulently acquired, or falsified, or tampered with; (c) the maximum duration of stay as defined in Article 12(1) or in paragraph I or this Article has been reached. The competent authorities of the second Member State shall inform without delay the competent authorities of the first Member State and the host entity in the first Member Stale about their objection to the mobility. 7. Where the second Member State objects to the mobility in accordance with paragraph 6 of this Article and the mobility has not yet taken place, the intracorporate transferee shall not be allowed to work in the second Member State as Larges

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part of the intra-corporate transfer. Where the mobility bas already taken place, Article 23(4) and (5) shall apply. 8. Where the intra-corporate transferee permit is renewed by the first Member State within the maximum duration provided for in Article 12(1), the renewed intracorporate transferee permit shall continue to authorise its holder to work in the second Member State, subjca to the muimwn duration provided for in paragraph l of this Article.. 9. Intra-corporate transferees who are considered to pose a threat to public policy, public security or public health shall not be allowed to enter or to stay on the territory of the second Member State. Content

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I. General remarks.............................................................................................. II. Basic principle (Article 21 (I))...................................................................... III. The optional notification procedure (Article 21(2) to (7)) ...................

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I. General remarks Article 21 offers to the Member States two main alternatives for designing shorttenn mobility for ICTs to their countries: for a period of up to 90 days in any 180-day period, they may simply allow ICTs to move to and work in their territory on the basis of the valid ICT permit issued by the first Member State (Article 21 (I)), or they might opt for a minimwn of control by introducing the rather complex notification procedure according to Article 21(2) to (7). 11 ~

II. Basic principle (Article 21(1)) 2

Where Member States abstain from setting up the notification procedure, ICTs might be required to provide evidence only in the cases mentioned in Article 23(1) (see also Recital 34), and they may only be rejected if they cannot provide such evidence or do not fulfil the general requirements (see Article 20 and Article 21(9), above Article 20 MN 4).

III. The optional notification procedure (Article 21(2) to (7)) As Member States may choose to provide for a notification procedure in general, they might as well require it only for ICTs that have been admitted by certain first Manber States. This would be in line with the Directive's overall objective to make mobility for ICTs as easy as possible since altogether the obligation to notify would cover less cases. The Member States would have to communicate such details in accordance with Article 26(2). 4 The notification has to take place as soon as the mobility to the second Member State is seriously planned (Article 21(2)). If the host entity does not comply with this requirement (e.g. by notifying considerably too late), the second Member State may end the intra-corporate transfer according to Article 23(4)(a). 3

1" When transposing the Directive, a dear majority of the Member States opted for the notification procedure for shon-term mobility, see Lutz, in Minderhoud/de Lange (eds), The Intra Corporate Transferee Directive, p. 26-27.

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The documents and information listed in Article 21 (3) reflect partly those required for the admission procedure according to Article 5(1 ). Despite the different wording compared to Article 22(2)(a), Member States might here as well choose to require some or all of the documents or information: since they even have the possibility not to require any notification at all, they may choose to require only part of the evidence. It is a particular feature of this mobility scheme that, even if a Member State has opted for the notification procedure, an JCT may enter its territory immediately after notification, without having to wait for any decision on possible objections (Article 21 (4) and (5), in conjunction with Articles 21(7) and 23(4) and (5)). In fact, where the notification has taken place already at the time of the application in the first Member State, the third-country national might even start the intra-corporate transfer in the second Member State, provided that the ICT permit has been issued and handed over to the third-country national by the first Member State (e.g. in a consulate in the second Member State). While one might argue that this goes against the systematic structure of mobility, the wording of Article 11 (3) is clear in this respect. Indeed, the scheme's ratio is to set up a system as flexible as possible while taking into account the Member States security interests. In these cases, however, the second Member State did have enough time to examine if there is a reason to object to mobility. Member States that have opted for the notification procedure may object to the ICT's mobility, but only within 20 days from having received the notification. In addition to the grounds listed in Article 21(6), Member States might apply volumes of admission (see above Article 20 MN 5), which, however, seems neither practicable nor reasonable in the framework of short-term mobility.

Article 22 Long-term mobility I. In relation to third-country nationals who hold a valid intra-corporate trans-

feree permit issued by the first Member State and who intend to stay in any second Member State and work in any other entity, established in the latter and belonging to the same undertaking or group of undertakings, for more than 90 days per Member State, the second Member State may decide to: (a) apply Article 21 and allow the intra-corporate transferee to stay and work on its territory on the basis of and during the period of validity of the intra-corporate transferee permit issued by the first Member State; or (b) apply the procedure provided for in paragraphs 2 to 7. 2. Where an application for long-term mobility is submitted: (a) the second Member State may require the applicant to transmit some or all of the following documents where they are required by the second Member State for an initial application: (i) evidence that the host entity in the second Member State and the undertaking established in a third country belong to the same undertaking or group of undertakings; (ii) a work contract and, if necessary, an assignment letter, as provided for in point (c) of Article 5(1); (iii) where applicable, documentation certifying that the third-country national fulfils the conditions laid down under the national law of the Member State · concerned for Union citizens to exercise the regulated profession to which the application relates; Lorges

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(iv) a valid travel document, as provided for in point (0 of Article 5(1); (v) evidence of having, or, if provided for by national law, having applied for, sickness insurance, as provided for in point (g) of Article 5( l). The second Member State may require the applicant to provide, at the latest at the time of issue of the permit for long-term mobility, the address of the intra-corporate transferee concerned in the territory of the second Member State. The second Member State may require those documents and that information to be presented in an official language of that Member State; (b) the second Member State shall take a decision on the application for long-term mobility and notify the decision to the applicant in writing as soon as possible but not later than 90 days from the date on which the application and the documents provided for in point (a) were submitted to the competent ·authorities of the second Member State; (c) the intra-corporate transferee shall not be required to leave the territories of the Member States in order to submit the application and shall not be subject to a visa requirement; (d) the intra-corporate transferee shall be allowed to work in the second Member State until a decision on the application for long-term mobility has been taken by the competent authorities, provided that: (i) the time period referred to in Article 21(1) and the period of validity of the intra-corporate transferee permit issued by the first Member State has not expired; and (ii) if the second Member State so requires, the complete application has been submitted to the second Member State at least 20 days before the long-term mobility of the intra-corporate transferee starts; (e) an application for long-term mobility may not be submitted at the same time as a notification for short-term mobility. Where the need for long-term mobility arises after the short-term mobility of the intra-corporate transferee has started, the second Member State may request that the application for long-term mobility be submitted at least 20 days before the short-term mobility ends. 3. Member States may reject an application for long-term mobility where: (a) the conditions set out in point (a) of paragraph 2 of this Article are not complied with or the criteria set out in Article 5(4), Article 5(5) or Article 5(8) are not complied with; (b) one of the grounds covered by point (b) or (d) of Article 7(1) or by Article 7(2), (3) or (4) applies; or (c) the intra-corporate transferee permit expires during the procedure. 4. Where the second Member State takes a positive decision on the application for long-term mobility as referred to in paragraph 2, the intra-corporate transferee shall be issued with a permit for long-term mobility allowing the intra-corporate transferee to stay and work in its territory. This permit shall be issued using the uniform format laid down in Regulation (EC) No 1030/2002. Under the heading 'type of permit', in accordance with point (a)6.4 of the Annex to Regulation (EC) No 1030/ 2002, the Member States shall enter: 'mobile ICT'. Member States may also add an indication in their official language or languages. Member States may indicate additional information relating to the employment activity during the long-term mobility of the intra-corporate transferee in paper format, and/or store such data in electronic format as referred to in Article 4 of Regulation (EC) No 1030/2002 and point (a)l6 of the Annex thereto. 5. Renewal of a permit for long-term mobility is without prejudice to Article 11(3).

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6. The s«ond Member State shall inform the competent authorities in the fint Member State where a permit for long-term mobility is issued. 7. Where a Member State takes a decision on an application for long-term mobility, Article 8, Article 15(2) to (6) and Article 16 shall apply accordingly. Content

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I. Basic principle (Article 22(1)) ............. -···································-·················· II. The optional application procedure (Article 22(2) to (7))....................

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I. Basic principle (Article 22(1)) As for short-term mobility, the Directive provides for different (but even more diverging) possibilities also for ICTs' mobility of more than 90 days to the same (second) Member State (long-term mobility): 115 The Member States may opt for a very open and flexible mobility regime by also 2 accepting such longer stays simply on the basis of a valid ICT permit issued by the first Member State (see Articles 22(l)(a) and 21(1), (8) and (9)). The Member States may as well decide to provide for a notification procedure for 3 long-term mobility according to Articles 22(l)(a) and 21 (2) to (7), since the reference in Article 22(l)(a) is made to the entire Article 21 and this option would still be more flexible than to choose an application procedure. As a third option, Member States that consider it important to exercise a substantive 4 control over third-country nationals who come to their territory and work there for a period of more than 90 days may establish a specific application procedure according to Articles 22(2) to (7) (see Article 22(l)(b)).

II. The optional application procedure (Article 22(2) to (7)) The docoments and information which the Member States may require the S applicant• 16 to provide (Article 22(2)(a)) reflect partly the evidence requested for the admission procedure according to Article 5(1). Although not listed in Article 22(2)(a), the second Member State may require the transmission of the ICT permit and the valid travel document, since these documents are general requirements for making use of mobility (see Article 20 MN4). Article 22(2)(b) to (e) and (7) provide for a number of procedural guarantees for an 6 ICT applying for long-term mobility. In particular, the decision on the application has not only to be taken but also notified to the applicant in writing at the latest 90 days after the application and the required documents were submitted to the competent authorities of the Member States (Article 22(2)(b)). Article 22(2)(d) is evidence of the mobility scheme's particular flexibility: in general, 7 mobile ICTs may start working in the s«ond Member State before the decision on the application has been taken, immediately after having submitted the application or, if

115 Whm transposing the Directive, almost all Member States opted for the application procedure for long-term mobility, with the others requiring at least a notification procedure, see Lutz. in Minderhoud/ de Lange (eds), The Intra Corporate Transferee Directive, p. 26-27. 11 • See Article 11(1).

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the Member State wants to retain a certain control, after a maximum time period of 20 days after having submitted the required documents. Article 22(2)(e) was introduced to clarify the relationship between short-term and long-term mobility. It means to prevent circumvention of the less flexible application procedure of Article 22 and avoid possible double bureaucratic costs. Another safeguard against circumvention is Article 22(5) which clarifies that the (generally possible) renewal of a mobile JCT permit may not result in a stay in the second Member State which is longer than the stay in the first Member State (see above Article 11 MN 2). Such an application for renewal would have to be rejected (see Article 7 MN 2). Article 22(3) provides for (solely facultative) grounds for rejection which cover the absence of several admission conditions (see Article 22(2)(a)) as well as nomerous grounds of rejection listed in Article 7. In addition, Member States might apply volumes of admission in the framework of long-term mobility and reject an application for that reason (see above Article 20 MN 5). Eventually, Article 22(4) and (6) oblige the Member States to introduce a further specific type of permit, namely the 'mobile ICT' permit. Article 22(4) contains formal specifications similar to Article 13(3), (4) and (6).

Article 23 Safeguards and sanctions 1. Where the intra-corporate transferee permit is issued by a Member State not applying the Schengen acquis in full and the intra-corporate transferee crosses an external border, the second Member State shall be entitled to require u evidence that the intra-corporate transferee is moving to the second Member State for the purpose of an intra-corporate transfer: (a) a copy of the notification sent by the host entity in the first Member State in accordance with Article 21(2); or (b) a letter from the host entity in the second Member State that specifies at least the details of the duration of the intra-EU mobility and the location of the host entity or entities in the second Member State. 2. Where the first Member State withdraws the intra-corporate transferee permit, it shall inform the authorities of the second Member State immediately. 3. The host entity of the second Member State shall inform the competent authorities of the second Member State of any modification which affects the conditions on which basis the mobility was allowed to take place. 4. The second Member State may request that the intra-corporate transferee immediately cease all employment activity and leave its territory where: (a) it has not been notified in accordance with Article 21(2) and (3) and requires such notification; (b) it has objected to the mobility in accordance with Article 21(6); (c) it has rejected an application for long-term mobility in accordance with Article 22(3); (d) the intra-corporate transferee permit or the permit for long-term mobility is used for purposes other than those for which it was issued; (e) the conditions on which the mobility was allowed to take place are no longer fulfilled.

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5. In the cases referred to in paragraph 4, the fint Member State shall, upon request of the second Member State, allow re-entry of the intn-corporate transferee, and, where applicable. of his or her family members, without formalities and without delay. That shall also apply if the intra-corporate transferee permit issued by the fint Member State has expired or bas been withdnwn during the period of mobility within the second Member State. 6. Where the holder of an intra-corporate transferee permit aosses the external border of a Member State applying the Schengen acquis in full, that Member State shall consult the Schengen information system. That Member State shall refuse entry or object to the mobility of persons for whom an alert for the purposes of refusing entry and stay has been issued in the Schengen information system. 7. Member States may impose sanctions against the host entity established on its territory in accordance with Article 9, where: (a) the host entity has failed to notify the mobility of the intra-corporate transferee in accordance with Article 21(2) and (3); (b) the intra-corporate transferee permit or the permit for long-term mobility is used for purposes other than those for which it was issued; (c) the application for an intra-corporate transferee permit has been submitted to a Member State other than the one where the longest overall stay takes place; (d) the intra-corporate transferee no longer fulfils the criteria and conditions on the basis of which the mobility was allowed to take place and the host entity fails to notify the competent authorities of the second Member State of such a modification; (e) the intra-corporate transferee started to work in the second Member State. although the conditions for mobility were not fulfllled in case Article 21(5) or point (d) of Article 22(2) applies. Content

I. Safeguards (Article 23( I) to (6)).................................................................. II. Sanctions (Article 23(7)) ...............................................................................

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I. Safeguards (Article 23(1) to (6)) Article 23(1) and (6) result from the fact that the mobility regime of this Directive is lex I specialis to the Scbengen acquis as far as the entry and stay as a mobile ICT in a second Member State is concerned, with all other provisions of the Schengen acquis continuing to apply (see Recital 26). ICTs that have been admitted by a Member State not applying the Schengen acquis in full are allowed to move to any participating Member State without a Schengen visa and may therefore be required to provide additional evidence when crossing an external border (Article 23(1 )). Furthermore, the first Member State may not have been in the position to consult the Schengen information system before admitting the ICT, resulting in the obligation contained in Article 23(6) (see also Recital 34). Article 23(2) and (3) contain explicit information requirements in order to ensure 2 that the second Member State is informed about any changes that might lead to an end of mobility. Article 23(4) and (5) describe in detail the conditions and procedures according to 3 which a second Member State may terminate an ICT's mobility to its territory. They deviate .from Article 6(2) Return Directive 2008/115/EC: on request of the second Member State, the ICT is obliged to go back to the first Member State, and the latter

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has to take him or her back even if the ICT permit issued by the first Member State is not valid any more. This stresses the responsibility of the first Member State to conduct a thorough admission procedure when the third-country national applies for an intracorporate transfer. 3a However, as the wording of Article 23(4) unambiguously shows ('may request'), the second Member State is not obliged to end the ICT's mobility. This is in line with the Schengen acquis, since the ECJ stated in Zurita Garcia that neither the Schengen Borders Code nor the Convention implementing the Schengen Agreement compels a Member State to expel a third-country national who is unlawfully present on its territory because he does not fulfil, or no longer fulfils, the conditions to stay there. 117

II. Sanctions (Article 23(7)) 4

Article 23(7) lists the situations in which sanctions may be imposed against the host entity for infringements in the context of mobility. It is meant to ensure that the host entities comply with their obligations to inform (see 23(7)(a) and (d)) or have a proper interest to avoid misuse of the mobility rules (see Article 23(7)(b), (c) and (e)). The sanctions have to be effective, proportionate and dissuasive (see Article 9(1) and (2)).

CHAPTER VI FINAL PROVISIONS

Article 24 Statistics 1. Member States shall communicate to the Commission statistics on the number of intra-corporate transferee permits and permits for long-term mobility issued for the first time. and, where applicable. the notifications received punuant to Article 21(2) and, as far as possible. on the number of intra-corporate transferees whose permit has been renewed or withdrawn. Those statistics shall be disaggregated by citizenship and by the period of validity of the permit and, as far as possible. by the economic sector and transferee position. 2. The statistics shall relate to reference periods of one calendar year and shall be communicated to the Commission within six months of the end of the reference year. The first reference year shall be 2017. 3. The statistics shall be communicated in accordance with Regulation (EC) No 862/2007 of the European Parliament and of the Councuos,.

Article 25 Reporting Every three years, and for the fint time by 29 November 2019, the Commission shall submit a report to the European Parliament and to the Council on the See ECJ, Zurita Garcia, C-261/08 & C-348/08, EU:C:2009:648, paras 48-66. Regulation (EC) :'1/o 862/2007 of the European Parliament and of the Council of 11 July 2007 on Community statistics on migration and international protection and repealing Council Regulation (EEC) :'1/o 311/76 on the compilation of statistics on foreign workers (OJ L 199, 31.7.2007, p. 23). 1"

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application of this Directive in the Member States and shall propose any amendments necessary. The report shall focus in particular on the assessment of the proper functioning of the intra-EU mobility scheme and on possible misuses of such a scheme as well as its interaction with the Schengen acquis. The Commission shall in particular assess the practical application of Articles 20, 21, 22, 23 and 26.

Article 26 Cooperation between contact points 1. Member Stales shall appoint contact points which shall cooperate effectively and be responsible for receiving and transmitting the information needed to implement Articles 21, 22 and 23. Member States shall give preference to exchanging of information via electronic means. 2. Each Member State shall inform the other Member States, via the national contact points referred to in paragraph 1, about the designated authorities referred to in Article 11(4) and about the procedure applied to mobility referred to in the Articles 21 and 22.

Article 27 Transposition 1. Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by 29 November 2016. They shall forthwith communicate the text of those measures lo the Commission. When Member States adopt those measures, they shall contain a reference to this Directive or be accompanied by such reference on the occasion of their official publication. Member States shall determine how such reference is to be made. 2. Member States shall communicate to the Commission the text of the main provisions of national law which they adopt in the field covered by this Directive.

Article 28 Entry into force This Directive shall enter into force on the day following that of its publication in the Official Journal of the European Union.

Article 29 Addressees This Directive is addressed to the Member States in accordance with the Treaties.

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Chapter 17. Students and Researchers Directive (EU) 2016./801 Select Bibliography: Abarca Junco/Gomez-Urrutia, 'El regimen juridico de los estudiantes e investigadores cxtranjcros en EspaJ\a', Revista Electr6nica de Estudios Intemationales 17 (2009), p. 1-40; Auer, 'Voraussetzungen eines Aufenthaltsrechts aus Art. 6 ARB 1.80 fiir tiirkische Studierende mil Nebenbeschiftigung im Rahmen des § 16 III AufenthG', Zeitschrift fiir Auslinderrecht (2008), p. 223-227; Bertozzi, 'Intqration: An Ever-closer Challenge', CEPS Working Document No 258 (2007); Hailbronner, Ausliinderrecht Kommentar (C.H. Beck); Hoogenboom, 'Turkish Nationals and the Right to Study in the European Union: A Progressive Interpretation', EJML 15 (2013), p. 387-412; International Organisation for Migration/European Parliament, Comparative Study of the Laws in the 27 EU Member States for Legal Migration (2008); Hofmann, Implementation and Impact of the Raearcher's Directive (Directive 2005/71/EC) (lCMPD, 2012); Huber' Uas Gesetz zur Umsetzung aufenthaltsrechtlicher Richtlinien der EU zur Arbeitsmigration vom 12.5.2017', Neue Zcitschrift fiir Verwaltungsrecht (2017), p. 1160-1167; Kluth. 'Der Aufenthalt von Forschem nach § 20 AufenthG', Zcitschrift fiir Auslinderm:ht (2008), p. 234; Kocharov, 'What Intra-Community mobility for third-country workers?', EL Rev. 33 (2008), p. 913-926; Muzak, 'Ein Fremdenrecht fur Wissenschaftler und Auslaodsstudierende?', Zcitschrift fiir Hochschulrecht (2007), p. 67-73; Peers, 'EC immigration law and EC association agreements: fragmentation or integration?' EL Rev. 32 (2009), p. 628-638; Peers. 'Turkish visitors and Turkish students: New rights from the European Court of Justice', Journal of Immigration Asylum and Nationality Law 23 (2009), p. 197; Peers and others (eds), EU Immigration and Asylum Law; Volume 2: EU Immigration Law, 2nd edn (Martinus Nijhoff, 2012); von Diest, 'Neue Regelungen zur rcguliren Migration - das Gesetz zur Umsetzung aufenthaltsrechtlicher Richtlinien der EU zur Arbeitsmigration im Gberblick', Zeitschrift fiir Auslanderrecht und Auslinderpolitik (2017), p. 251-257; Welte, 'Assoziationsrecht nach Art 6 I ARB 1/80 bei der Beschiftigung von tiirkischen Studenten', Zcitschrift fur Auslanderrecht (2010), p. 53; Wiesbrock, 'Free Movement of Third-Country Nationals in the European Union: The Illusion of Inclusion' EL Rev. 35 (2010), p. 455-475; Wiesbrock. Legal Migration to tht European Union (Immigration and Asylum Law and Policy in Europe) (Martinus Nijhoff, 2010). Note that literatMrt in the sel«ted bibliography will be mentioned in an abbreviated llersion in the text below, referring to the authors(s) and a short title only.

Directive (EU) 2016/801 of the European Parliament and the council of 11 May 2016 on the conditions of entry and residence of third-country nationals for the purposes of research, studies, training, voluntary service, pupil exchange schemes or educational projects and au pairing (recast) Official Journal L 132, 21.05.2016, p. 21-57 THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on the Functioning of the European Union, and in particular points (a) and (b) of Article 79(2) thereof, Having regard to the proposal from the European Commission, After tnnsmission of the dnft legislative act to the national parliaments, Having regard to the opinion of the European Economic and Social CommitteeUI, Having regard to the opinion of the Committee of the Regions Sec Thym, The End of Human Rights Dynamism?', IJRL 32 (2020), p. 569, 572-588. 1611 See Edwards, 'Human Rights. Refugees, and the Right "To Enjoy" Asylum', IJRL 17 (2005), p. 293,

302-304. 269 Sec ECtHR, judgment of 15 November 1996 [GC], No 22414/93, Chahal v. the United Kingdom, paras 79-80; ECtHR, judgment of 17 December 1996, No 25964/94, Ahmed v. Austria. pan 41 explicitly confinning that the ECHR is wider than the GC; and ECtHR, judgment of 28 February 2008 [GCI, ~o 37201/06, Saadi v. Italy, paras 124-127 in contrast, in particular, to Article IF GC. m For a Ii.st of relevant factors, sec ECtHR, judgment of 17 January 2012, No 8139/09, Othman (Abu Qatada)" v. the United Kingdom, para 189; note that the guarantees Member States may have to provide in relation to Dublin transfers (sec above MN 29) arc less strict, mirroring the availability of supervision and

redress m«hanisms in all European states, including before the EQHR.

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meaning of the Refugee Convention. It recognised that Article 3 ECHR protects against the real risk of ill-treabnent by non-state acton provided that state authorities are not able to obviate the risk by providing appropriate protection 271 and requires individual to avail themselves of internal flight altematives. 272 Judges also extended the human rights-based prohibition of refoulement to situations of indiacriminate violence which is not directed against a specific social group but defines the situation in the country concerned more generally. The case law on indiscriminate violence was an important point of reference for the introduction of subsidiary protection status by the Union legislature (see above MN 21). After a series of far-reaching judgments in the late 1990s, the ECtHR adopted a more careful position stressing that 'a general situation of violence will not normally in itself entail a violation of Article 3', since such an approach is warranted 'only in the most extreme cases.'271 In a number of follow-up rulings, it carefully applied these standards to different countries of origin.274 In doing so, states may conclude that a country is either generally unsafe, distinguish between different categories of people or embark on an individualised assessment. 275 They may find, moreover, that a general situation of violence or insecurity, which does not in itself meet the threshold of Article 3 ECHR, can result in a real risk of inhumane or degrading treatment if a cumulative uaessment of the general situation and individual facton support such as conclusion 276 - mirroring the ECHR's 'sliding scale' approach (see Storey, Qualification Directive 2011/95/EU, Article 15 paras 16-17). Notwithstanding this overlap, there are notable differences between the EU's statutory asylum rules and the ECtHR's human rights' jurisprudence, which establishes minimum standards that are less generous than secondary legislation, for instance when it comes to internal flight altematives 277 or the cessation of protection. 278 57a The ECtHR assumes, controversially, that socioeconomic living conditions abroad may amount to a violation of Article 3 ECHR if the transferee had to live in 'extreme l7I 272

Ever since ECtHR. judgment of 29 April 1997 [GC], No 24573/94, H.L.R. v. France, paras 32, 40. Sec ECtHR. judgment 11 January 2007, No 1948/04, Salah Sheekh v. the Netherlands, para 141; and,

by way of example, the assessment on the Kwdish regions in Iraq during the 2010s by ECtHR. judgment of 27 June 2013, No 50859/10, M. Y.H. tt aL v. Swtden, pans 62-67. 273 ECtHR. judgment of 17 July 2008, No 25904/07, NA v. the Unikd Kingdom, paras 114-115; more open formulations of earlier rulings include EQHR, judgment of 17 December 1996, No 25964/94, Ahmed v. Austria; for a critique of the case law, see Hailbronner, 'Artikel 3 EMRK - ein neues europaisches Konzept der Schutzgewihrung?', Die Offentliche Verwaltung (1999), p. 617-624. 274 the case-by-case approach regarding Afghanistan by ECtHR, judgment of 5 July 2016, No 29094/ 09, A. M. v. the Netherlands; or the rejection of a real risk of a violation with regard to some pan of Somalia in ECtHR, judgment of 28 June 2011, Nos. 8319/07 & 11449/07, Sufi & Elmi v. the Unikd Kingdom, paras 212 et seq.; and for Iraq by ECtHR. judgment of 27 June 2013, No 71680/10, A.G.A. M. v. Swtden, pans 29 et seq. (the Grand Chamber accepted the outcome by rejecting a review); by contrast, Syria was considered to be generally unsafe by ECtHR. judgment of 14 February 2017, No 52722/15, S.K.

a.

v. Russia. m Sec Anna Lubbe, ••systemic Flaws• and Dublin Transfers. Incompatible Tests before the CJEU and the ECtHR?', International Journal of Refugee Law 27 (2015), p. 135 (138-139). 276 Sec ECtHR, judgment of 17 July 2008, No 25904/07, NA v. the United Kingdom, pans 130, 143-144, 146. 277 In contrast to Article 8 Qualification Directive, whose precise meaning remains ambiguous at this juncture (see Dorig. Asylum Qualification Directive 2011/95/EU, Article 8 MN 14-18), the ECtHR case law docs not seem to require the effective guarantee of basic civil, economic, social and political rights unless they meet the high threshold for the prohibition of refoulement under Article 3 ECHR; see below MN 57b. m The EQHR requires the absence of a real risk of inhumane or degrading tmltment only, not additional safeguards regarding the 'significant and non-temporary nature' of the change of circumstance under Article 12(2) Qualification Directive, whose precise meaning remains uncertain; see Kraft, Asylwn Qualification Directive 2011/95/EU, Article 12 MN 22-23.

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Chp. 18 material poverty.' Unfortunately, the contours of the safeguard remain uncertain. So far, the ECtHR has required states to refrain from deportation when someone fears poverty only within the specific context of the European Union for the transfer of asylum seekers within the Dublin system; it justified that outcome, amongst others, by a consensus expressed in the Reception Conditions Directive.279 The ECJ specified that the 'particularly high level of severity [amounting to a violation] is attained where the indifference of the authorities of a Member State would result in a person wholly dependent on State support finding himself . . . in a situation of extreme material poverty that does not allow him to meet his most basic needs, such as, inter alia, food, personal hygiene and a place to live, and that undermines his physical or mental health or puts him in a state of degradation incompatible with human dignity.' 2IIO The situation is different for returns to third states. By contrast, the legal context of returns to third states in medical cases is 57b different. When considering the return of other migrants, the ECtHR assumes that socio-economic living conditions will prevent deportation only 'in very exceptional cases', 281 when the situation would deteriorate massively, including if the applicant effectively faces imminent death upon return. 282 Applicants 'cannot in principle claim any entitlement to remain in the territory of a Contracting State in order to continue to benefit from medical, social or other forms of assistance and services' even if the standard of living in the country of origin is much lower. 283 The ECtHR stipulates, in other words, that the surrender of asylum seekers within the European Union {see above MN 57a) is subject to stricter requirements than the application of the same human rights standard to returns to third states. How these different judgments relate to each other remains an open question judges failed to address. 284 It can imply that Member States are obliged to give non-removeable returnees a level of protection that is higher than they can expect in countries of origin {see Lutz, Return Directive 2008/115/EC, Article 14 MN 3-10). 285 When it comes to the return of asylum seekers to third states {as opposed to the return of other foreigners to home states), the Grand Chamber requires third states to have rudimentary status determination in order to qualify as generally safe from a human rights perspective. 286 It remains uncertain what kind of procedural obligation are incumbent upon states when m See ECIHR. judgment of 4 November 2014 [GCI, No 29217/12, Tarakhel v. Switzerland, paras 93-99, in particular para 96; ECtHR, judgment of21 January 2011 [GCI, No 30696/09, M.S.S. v. Belgium & Greece, paras 235-264; and ECtHR. judgment of 2 July 2020, No 28820/13 et al., N.H. and others v. France, paras 158-164, in part. para 161. )Jj) ECJ, Jawo, C-163/17, EU:C:2019-.218, paras 92 referring 10 the M.S.S. judgment, ibid; on the strictness of the judicial argument, see Wendel, 'Die pfljcht zur Bcrucksichtigung der Lebensumstande von anerkannl Schutzberechtigten im EU-Ausland', Juristenzeitung (2019), p. 983, 986-988. 211 See the statement of principle by ECtHR. judgment of 13 December 2016 [GC], :--1041738/JO, Paposhvili v. Belgium, paras 176-178; and Vladislava Stoyanova, 'How Exceptional Must "Very Exceptional' Be?', IJRL 29 (2017), p. 580, 597-599. :w See, for an AIDS patient in 'advanced stages of a terminal and incurable illness' (para SI), ECtHR. judgment of 2 May 1997, No 30240/96, D. v. the Unittd Kingdom, para 52. w ECtHR. judgment of 27 May 2008 (GCI, :-.lo 26565/05, N. v. the United Kingdom, para 42; for the irrelevance of disparities of living standards, see para 44. 214 For comments see Thym, Expert Opinion on the Reform of the Common European Asylum System, January 2017, p. 23-26, available online al http://ssrn.com/abstract=31630l4 (last acct'SM:d 1 June 2021). 215 See also Lutz, ':-.Ion-Removable Returnees under Union Law. Status Quo and Possible Developments', EJML 20 (2018), p. 28, 31-33. ,... Cf. ECtHR, judgment of 21 November 2019 [GC], :-.lo 47287/15, Jlias & Ahmed v. Hungary, paras 128-138; note that human rights standards for safety under the ECHR can conceptually be lower than statutory guarantees for 'safe third countries' under Article!I 38 and 39 of the Asylum Procedures Din:ctive, which the legislature can modify.

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58

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returning asylum seekers to third states, in particular the ECHR will always require an individual interview (see below MN 63). For legal practice, the burden of proof defining who is obliged to demonstrate a 'real risk' of degrading or inhumane treatment and the standards of proof defining the methods how to demonstrate a real risk of a human rights violation are at least as important as the substantive considerations mentioned above. The Grand Chamber of the ECtHR developed abstract principles guiding the burden and standards of proof whether an applicant faces a 'real risk' of degrading or inhumane treatment. It emphasises the need for an ex nunc evaluation, expects the individual to demonstrate individual reasons validating a real risk of refoulement, obliges state authorities to take note of general reports ex officio and recognises past ill-treatment as an indication of a real risk. 287 It was mentioned above that it can be difficult to develop a uniform panEuropean practice how to assess the factual situation in different countries of origin or transit (see above MN 46). Besides Article 3 ECHR, the violation of other human rights in countries of origin can also stand in the way of deportation or extradition. However, in such scenarios, the ECtHR insists on a strict assessment, thereby effectively establishing distinctive standards for internal and removal cases. 288 Instead of applying its case law on the human right in question to the situation in the country of origin, an approach which would result in a problematic application of the intra-European human rights standards to the situation abroad, the ECtHR inquires whether we are faced with a 'Oagrant denial' of other human rights - a threshold which will be met in exceptional circumstances only. In practice, it has found that extreme scenarios of unfair judicial procedures or detention conditions can give rise to an issue under Articles 5 and 6 ECHR, 289 although these rules will usually be more relevant in extradition than in expulsion cases. For asylum matters, Article 3 ECHR remains the central yardstick. In line with more recent ECtHR case law, the ECHR can be applied extraterritorially whenever the contracting parties exercise jurisdiction over a person, in particular once he has been transferred to a European border guard vessel on the High Seas (see Thyrn, Legal Framework for Entry and Border Controls, MN 38-39). In contrast to the ECtHR, judges in Luxembourg do not use the 'flagrant denial' test to assess whether treatment by the receiving state amount to a human rights-based nonrefoulement obligation in scenarios transcending Article 4 of the Charter. Instead, the ECJ has recourse to the 'essence of rights' criterion to determine whether treatment in the receiving state hinden deportation or extradition. The argument was developed for procedural irregularities under the European Arrest Warrant, 290 but can be extended to deportation of irregular migrants as a matter of principle. It is not immediately clear whether an, if so, to what extent the different formula amounts to a different level of protection. Article 18 of the Charter could have a bearing on EU asylum policy, since it guarantees '[t]he right to asylum ... with due regard for the rules of the Refugee Convention ... and in accordance with the [TFEU].' The precise meaning of that provision defies easy classification. While the wording transcends the unspecific 'right 287

For an extensive summary of the case law, see ECtHR, judgment of 23 August 2016 IGCJ, paras 77-105. 21111 See also Costello/Mouzourakis, 'Reflections on Reading Tarakluf, AJiel & Migrantenrecht (2014), p. 404, 406-407. m For a summary of the Court's position, see ECtHR, judgment of 17 January 2012, No 8139/09, Othman (Al:,u Qatada) v. the United Kingdom, paras 231-235, 258-262. 290 See ECJ, Minister for Justice and &,uality, C-216/18 PPU, EU:C:2018:589, paras 59-60, 72 et seq. ~o 59166/12, J.K. v. Sweden,

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Chp. 18 to seek asylum', which is generally understood not to confer an obligation on states,291 the Charter speaks of a 'right to asylum' without specifying the subject like in other provisions ('everyone', 'every citizen'). The genera scheme of the provision argues against far-reaching individual rights, since it refers to the right of asylwn being guaranteed 'with due regard' (Franzosisch: 'dans le respect'. German: 'nach Ma.6gabe') to the Refugee Convention and the EU Treaties in an abstract manner, thus possibly establishing an abstract principle in line with Article 52(5) of the Charter, which must be specified by secondary legislation whose interpreation it may influence nonetheless. 292 The drafting history shows that the abstract wording was a deliberate choice reflecting a concern among the members of the European Convention drafting the Charter about the implications of an individual right to asylum beyond the confines of the Refugee Convention. 293 The German Parliament concluded in a non-binding report that the majority view rejected an individual right. 294 Nevertheless, various authors sustain an individualised interpretation. 295 Even if one interpreted Article 18 of the Charter to contain an individual right, one would have to answer in how far the provision encompasses procedural or socio-economic rights that transcend the basic guarantee of non-refoulement (see above MN 55a). In its case law, the ECJ evaded pronouncing itself on the precise meaning of 60a Article 18 of the Charter, even though a couple of judgments mentioned the provision. Judges found, for instance, that a potential right to asylwn does not prevent the return of asylum seekers within the Dublin system if procedural guarantees are being violated in the country of destination (see above MN 59-59a). 296 Similarly, a restrictive interpretation emphasised that asylum seekers cannot choose the country where to lodge a claim, i.e. the denial of second applications within the Union does not fall foul of the Charter. 297 Contrariwise, the ECJ recognised that statutory guarantees in the Asylum Procedures Directive render more effectively the right to asylum in Article 18 CFR 298 In a judgment of principle on the relation between asylum legislation and the Refugee Convention, the ECJ did not mention Article 18 CFR at all, even though the judgment distinguished between basic guarantee for all refugees, such as non-refoulement, and more advanced rights for those having received a status in the domestic procedure. 299 We are left with the 291 For instance in the Universal Declaration of Human Rights; see Gil-Bazo, 'Asylwn as a General Principle of International Law', IJRL 27 (2015), p. 3, 8-9. 291 See also Th}m, Constitutional Framework, MN 49; such interpretation could go beyond a codification of the Refugee Convention due to its impact upon the interpretation of secondary legislation, see FrOhlich, Asylrecht, p. 184 et seq., 328-331; and Nicolosi, 'Going Unnoticed? Diagnosing the Right to Asylum in the Charter of Fundamental Rights of the European Union', ELI 23 (2017), 94, 98.10S; EC,, N.S. et al., C-411/10 & C-493110, EU:C:2011:865, para 75 can possibly be read to confirm this interpretation. ,., Sec Berrudorff, 'Article 18', in: Meyer/Holscheidt (eds), Die Charta drr Grundrechte drr Europiiischen Union, 5th edn (:,,/omos. 2019), paras 7-13, 23-27; and Galetta, The European Asylwn Policy: Myth and Reality', in: Birkinshaw/Varney (eds), The European Union Legal Order after Lisbon (Kluwer, 2010), p. 213, 219. ,.. See the academic services of the Deutscher Bundestag, Obergrenzen fiir Asylsuchende und Bilrgerk.riegsflilchtlinge im Lichte des EU-Rechts, PE 6-3000 - 153/15 of 16 December 2015, p. 17-18. m Sec Moreno-Lax, Accessing Asylum, p. 365-384; Gil-Bazo, 'The Charter of Fundamental Rights of the European Union and the Right to be Granted Asylum', Refugee Survey Quarterly 27 (2008), p. 33, 34-45; den Heijer, 'Article 18', in: Peers et al. (eds), The EU Charter of Fundamental Rights. A Commentary (C.H. Beck/Hart, 2014). p. 519-542; and Gro6, 'Migrationsrclevante Freiheitsrechte der EU-Grundrechtecharta', Zeitschrift fiir Auslanderrecht (2013), p. 106-110. 2!11, See EC!, Ibrahim et al., C-297/17, C-318/17, C-319/17 & C-438117, EU:C:2019:219, para 99. m Cf. ECJ, Slovak Republic & Hungary v. Council. C-643/15 & C-647/15, EU:C:2017:631, para 343. ,.. EQ, Orsz,jgos Idegenrendisuti F6igazgat6sag c:¥1-alfcildi Regionalis Igazgat6sag, C-924/19 PPU & C-925/111 PPU. EU:C:2020:367, paras 192, 196-197, which could be read to refer to the effectiveness of statutory guarantees recognising the value of the constitutional principle (see above MN 60). 299 See ECJ, Met aL, C-391116, C-77/17 & C-78/17, EU:C:2019:403, paras 84-92, 97-11 l.

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overall impression of Article 18 of the Charter having little relevance. Judges concentrate on the prescriptions in secondary legislation and the Refugee Convention instead. 61

b) Procedural Requirements. The ECHR gained particular relevance in procedural issues in asylum cases, thereby complementing the rather general standards at international level (see above MN 52-54) with a more specific continental benchmark. Since Article 6 ECHR does not apply lo immigration and asylum cases due to their noncivil and non-criminal character,300 Article 13 ECHR on the right to an effective remedy has become the central yardstick. Any application of the provision requires, in contrast to Article 47 of the EU Charter (see Thym, Constitutional Framework, MN 37-37b), a prirna facie case under Article 3 ECHR, i.e. applicants have to show a real risk of torture, inhuman or degrading treatment in order to avail themselves of the procedural guarantees under the Convention: Article 13 ECHR does not apply without an arguable complaint. 301 Once this condition is met, states must establish an effective remedy in relation to which the contracting parties are afforded some discretion. 302 It established procedural assurances mirroring essential status determination requirements (see above MN 58). More specifically, the ECtHR holds that the remedy must be available in practice and provide for a prompt response as well as an independent and rigorous scrutiny. 303 It also requires complaints in relation to Article 3 ECHR to have automatic suspensive effect, which effectively requires the option of a court oversight before a foreigner is returned to a third state.304 The ECJ integrated the case law into Article 47 CFR; only persons facing a real risk of degrading treatment must benefit from suspensive effect (see Thym, Constitutional Framework, MN 37c). 61a Going beyond the minimum requirements enshrined in the ECHR, the Articles 41-42. 47 of the Charter lay down far-reaching guarantees for administrative and judicial proceedings, which will be discussed separately due to their overarching character (see Thym, Constitutional Framework, MN 37-37 O. 62

c) Prohibition of Collective &pulsions. Whereas the procedural safeguards under Article 13 ECHR protect only those with a prima facie claim (see above MN 61), judges interpreted the seemingly limited prohibition of collective expulsion under Article 4 of the Additional Protocol No 4 to the ECHR generously to include basic assurances for anyone. Corresponding case law applies within the EU context on the basis of Articles 19(1), 52(3) CFR (see above MN 55). In a series of judgments, the ECtHR postulated a wide interpretation of the prohibition of collective expulsions, which had originally been meant to prohibit mass expulsions on ethnic, religious, political or other grounds, 305 to embrace an individualised procedural guarantee against non-admission. 306 The spectacular Hirsi case extended these safeguards to rejection at the border JOO ECtHR. decision of 5.5.2020 [GCI. No 3599118. M. N. et aL v. Belgium, paras 137-140; and ECtHR. judgment of 5 Oct. 2000 [GC), ~o 39652/98, Maaouia v. France, paras 32-41. JOI Settled case law, see, by way of example, ECtHR, judgment of 21 January 2011 [GC), ~o 30696/09, M.S.S. v. Belgium & Gruce, para 288. JOl For a summary of the general principles. see ECtHR, judgment of 13 December 2012 [GC], No 22689/07, De Souza Ribeiro v. France, paras 77-83. JOi See the summary of the case law in ECtHR,judgment of 21 January 2011 [GCI, No 30696/09, M.S.S. v. Belgium & Greece, paras 283-293. J04 See EOHR. judgment of 23 Feb 2012 [GC], No 27765109, Hirsi Jamaa et al. v. Italy, paras 199-200; and ECtHR. judgment of 26 April 2007, No 25389/05, Gebremedhin v. France, para 58; it is sufficient if one coun has the option to decide before removal; a final decision of a coun of last instance is not required. JDS See Doehring. 'Die Rechtsnatur der Massenausweisung', Heidelberg Journal of International Law (1985), p. 372-389. '°" See ECtHR, judgment of 13 February 2020 [GC), Nos 8675/15 & 8697115, N.D. v. Spain & N.T. v. Spain, paras 166-188; reiterating the outcome of the narrow 4:3 decision in ECtHR, judgment of

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Chp. 18 (including on the High Seas),J07 thereby effectively rendering obsolete the express limitation of the separate procedural guarantee against expulsion of those 'lawfully resident.' 308 In doing so, judges established a freestanding guarantee of basic procedural safeguards against rejection at the border, even for those without a prima facie claim to be covered by the human rights-based prohibition of refoulement. 309 Conditions under which the procedural safeguards do not apply were diSCU88ed 63 controvenJally after the N.D. d- N. T. judgment, which found the Spanish policy of hot returns to comply with the prohibition of collective expulsion. While some suggested a distinction between land and sea borders, others focused on the uncertain outlook of the judicial reasoning. While the Grand Chamber had relied upon the 'own conduct' of individuals, the judgment contained two overlapping explanations of why the 'own conduct' excluded the need for basic screening: the availability of legal pathways and the use of force. 310 Later judgments can be read to conceive both criteria as alternative justifications; moreover, the availability of legal pathways was specified to concern the option of an asylum application at border crossing points (as opposed to rejection during border surveillance), thus effectively reinforcing the guarantees in the Asylum Procedures Directive. m Even if the prohibition of collective expulsion applies, procedural standards can be lower than in cases involving a real risk of a violation of Article 3 ECHR (see above MN 58, 61). Instead of requiring an individual hearing with trained personnel, the ECtHR accepted an unspecific opportunity to bring forward individual arguments; it also found brief and identical decisions to comply with human rights and did not require a remedy with suspensive effect. 312 It remains uncertain whether the case law on the return of potential asylum seeken to third states (as opposed to return of other foreigners to their home states) establishes higher procedural hurdles besides the obligation to check whether individuals have access to a rudimentary status determination (see above MN 57). The Grand Chamber indicated that it would usually expect states not to return asylum seekers to a third state without access to a 'legal procedure resulting in a legal decision that a finding on this issue can be made and relied upon'. At the same time, however, it indicated that Article 3 ECHR can be complied with '(i)n the absence of such a finding', if the situation in the third states affords sufficient guarantees to avoid (chain) refoulement. In such a scenario, states are expected to vigorously scrutinise the situation and to consult different reports. 313 The ECtHR did not, unfortunately, indicate whether an individual hearing is manda5 February 2002, No 51564/99, Con/ca v. Belgium paras 59-63; on the context, sec Bossuyt, Strasbourg et I~ dmiandeurs d'asile (Bruylant 2010), p. 117-120. .107 Sec ECtHR, judgment of 23 February 2012, Hirsi /amaa et al. v. Italy, No 27765/09, paras 166-182; on the context, see Guild, 'Article 19'; in: Peers et al. (eds), The EU Charter of Fundamental Rights. A Commentary (C.H. Beck/Han/Nomos, 2014), p. 543, 554-557 . .lOII Anide 3 of the Additional Protocol No 7 to the ECHR, which is binding on most state parties. l09 Sec den Heijer, 'Reflections on Refoulement and CoUective Expulsion in the Hirsi Case', IJRL 25 (2013); p. 265, 277-278, 283-285; and Moreno-Lax, 'Hirsi Jamaa and Others v Italy - or the Strasbourg Court versus Extraterritorial Migration Control?', Human Rights Law Review 12 (2012), p. 574, 590-591. 310 See the abstract findings in ECtHR, judgment of 13 February 2020 [GCI, Nos 8675/15 & 8697/15, N.D. & N.T. v. Spain, paras 193-201 paras 200,231; and the case-specific arguments in paras 201,208, 167-168; sec also Thym, 'The End of Human Rights Dynamism?', IJRL 32 (2020), p. 569, 576-579. 311 Sec ECtHR, judgment of 8 July 2021, No 12625/17, Shahzad v. Hungary, paras 59-62; and ECtHR, judgment of 23 July 2020, Nos 40503/17, 42902/17 & 43643/17, M.K. et aL v. Poland, paras 207-209. m Sec ECtHR, judgment of 12 December 2016 [GCI, No 16483/12, Khlaifia ~t al. v. Italy, paras 237-242, 27~277; reaffirmed by ECtHR, judgment of 24 March 2020, No 24917/15, Asady et al v. Slovakia, paras 57-71; see al.so Majcher, The European Union Returns Directive and its Compatibility with International Human Rights Law (Brill Nijhoff, 2020), p. 152-153. 313 Sec ECtHR, judgment of 21 November 2019 [GCI, No 47287/15, llias & Ahmed v. Hungary, paras 137, 138, 141.

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tory3 14 and whether procedural nquirements are higher than under the prohibition of collective e:q,ulsion. 3. Other International Agreements

64

Other international human rights treaties can influence the interpretation of the EU Charter and may as a result be applicable to the EU asylum acquis. In practice, the Convention on the Rights of the Child (see Thym, Legal Framework for EU Immigration Policy, MN 56-58) and the UN and the European conventions against torture have gained some relevance in asylum matters in the EU context (see Thym, Constitutional Framework, MN 54), since they complement the guarantees under the ECHR with sector-specific non-refoulement obligations315 or, in the case of the rights of the child, may influence the asylum procedure. 316 Whenever these issues are relevant, they are discussed in the chapter commenting on a specific legal instrument. m In scenarios where the exclusion standard of the N.D. & N. T. judgment applies. See Wou1ers, International Legal Standards for the Protection from Refoulement (lntersentia, 2009), ch. 5. m See Smyth, European Asylum uiw and the Rights of the Child (Routledge, 2014). 115

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Chapter 19. Temporary Protection Directive 2001/55/EC Select Blbllopphr- Alexander, Die Getriebenen - Merkel und die Fluchtlingspolitik: Report aus dem lnnem der Macht (Siedler, 2017); Arenas, The Concept of 'Mass Influx of Displaced Persons' in the European Directive Establishing the Temporary Protection System', EJML 7 (2005), p. 435-450; Bunyan (ed), Key texts on Justice and Home Affairs in the European Union, Volume l (1976-1993) - From Trevi to Maastricht, (Statewatch, 1997); Detjen/Steinbeis, Die z.auberlehrlinge - Der Streit um die Fluchtlingspolitik und der Mythos vom Rechtsbruch (Klett-Cotta. 2019); Durieux/McAdam, ':--lon-Refoulement through Time: The Case for a Derogation Clause to the Refugee Convention in Mass Influx Emergencies', lJRL 16 (2004), p. 4-24; European Commission (Hanne Beirens and others, ICF), Study on the Temporary Protection Directive - Final Report (January 2016); European Migration Network (EMN), The different national practices concerning granting of non-EU harmonized protection statuses (December 2010); Fandrich, 'A Comparative Study on the Asylum Landscapes within the EU for Iraqis after the 2003 Iraq War and Syrians after the 2011 Syrian Civil War', EU! Working Papers, RSCAS 2013/89; Fitzpatrick.. 'Temporary Protection of Refugees: Elements of a Formalized Regime', American Journal of International Law 94 (2000), p. 279-306; Hailbronner, 'European Immigration and Asylum Law Under the Amsterdam Treaty', CML Rev. 35 (1998), p. 1047-1067; Hathaway/Neve, 'Malung International Refugee Law Relevant Again: A Proposal for Collectivized and Solution-Oriented Protection', Harvard Human Rights Journal 10 (1997), p. 115-211; lneli-Ciger, Temporary Protection in Law and Practice (Brill-:--lijhoff, 2018); lneliCiger, 'Protecting Syrians in Turkey: A Legal Analysis', IJRL 29 (2017), p. 555-579; lneli-Ciger, 'Time to Activate the Temporary Protection Directive', EJML 18 (2016), p. 1-33; lneli-Ciger/Skordas, 'Temporary Protection', Max Planck Encyclopedia of Public International Law Online; Kilin, 'Temporary Protection in the EC: Refugee Law, Human Rights and the Temptations of Pragmatism', German Yearbook of International Law 44 (2001), p. 202-236; Kerber, 'The Temporary Protection Directive', EJML 4 (2002), p. 193-214; Kerber, 'Temporary Protection in the European Union: A Chronology', Georgetown Immigration Law Journal 14 (1999), p. 3S-50; Koser/Walsh/Black, 'Temporary Protection and the Assisted Return of Refugees from the European Union', l)RL 10 (1998), p. 444-461; Nascimbene/Di Pascale, 'The 'Arab Spring' and the Extraordinary Influx of People who Arrived in Italy from North Africa', EJML 13 (2011), p. 341-360; NoU/Gunneflo, Directive 2001155 - Temporary Protection - Synthesis Report, Odysseus Study on the 'Conformity Checking of the Transposition by Member States of 10 EC Directives in the Sector of Asylum and Immigration' (2007); Schmidt, 'Die vergeMenen Richtlinie 2001/55/EG fiir den Fall eines Massenzustrorns von Vertriebenen als Losung der aktueUen Fluchtlingskrisc', Zcitschrift fiir Auslanderrecht (2015), p. 205-212; Skordas, 'A Very German Cultural War. Migrants and the Law', Zcitschrift fur auslandisches offentliches Recht und Vol.kerrecht 79 (2019), p. 923-934; Schuck, 'Refugee Burden-Sharing: A Modest Proposal', Yale Journal of International Law 22 (1997), p. 243-297. Note that literature in the selected bibliography will be mentioned in an abbreviated wrsion in the text below, referring to the authors(s) and a short title only.

Council Directive 2001/55/EC of 20 July 2001 on minimum standards for giving temporary protection in the event of a mass influx of displaced persons and on measures promoting a balance of efforts between Member States in receiving such persons and bearing the consequences thereof Official Journal L 212, 07/08/2001, p. 12-23 THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Community, and in particular point l(a) and (b) of Article 63 thereof, Having regard to the proposal from the CommissionO> 11 > OJ

C 311 E, 31.10.2000, p. 251. Skordas

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Having regard to the opinion of the European Parliament, Having regard to the opinion of the Economic and Social CommitteeCl>, Having regard to the opinion of the Committee of the Regions, Whereas: [... ] HAS ADOPTED THIS DIRECTIVE:

CHAPTER I General provisions

Article I The purpose of this Directive is to establish minimum standards for giving temporary protection in the event of a mass influx of displaced persons from third countries who are unable to return to their country of origin and to promote a balance of effort between Member States in receiving and bearing the consequences of receiving such persons. Content

mn. I. Introductory comments................................................................................. I II. Drafting history............................................................................................... 7 I. European Political Cooperation.............................................................. 8 2. Treaty of Maastricht .................................................................................. 9 3. Treaty of Amsterdam ................................................................................ 12 4. The Kosovo crisis....................................................................................... 13 Ill. Purpose of the Directive................................................................................ 14 IV. Application of the Directive......................................................................... Is

I. Introductory comments I

Council Directive 2001/55/EC of 20 July 2001 'on minimum standards for giving temporary protection in the event of a mass influx of displaced persons and on measures promoting a balance of efforts between Member States in receiving such persons and bearing the consequences thereof was the first asylum directive adopted by the Council on the basis of Article 63(2)(a) and (b) TEC [now Article 78( l) and (2)(c) and (g) TFEU)_I The legal basis for the adoption of the provisions on the minimum standards is Article 63 (2)(a) TEC, and for the balance of effort and Opinion delivered on 13 March 2001. OJ C 155, 29.5.2001, p. 21. 141 Opinion delivered on 13 June 2001. 1 OJ 2001 L 212/12; Council doc. 10930/01 of 20 July 2001. The TFEU uses the term 'massive inflow' instead of 'mass influx'. Furthermore, Article 78(2)(g) TFEU provides that 'the European Parliament and the Council, acting in accordance with the ordinary legislative procedure, shall adopt measures for a common European asylum system comprising: ( ... ) partnership and cooperation with third countries for the purpose of managing inflows of people applying for asylum or subsidiary or temporary protection'. Article 78(3) TFEU reads: '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 me a national of that Member State. Content mn. I II. Structure and Interpretation......................................................................... 2

I. Drafting History of the Provisions on Withdrawal Procedures...........

I. Drafting History of the Provisions on Withdrawal Procedures Articles 44 and 45 were adopted on the basis of the Commission's initial proposal, I with only minor changes in the amended proposal and during Council negotiations. 305

n. Structure and Interpretation While Article 44 stipulates that Member States shall arrange for procedures for the 2 e-.:amination of possible withdrawal of international protection if and when new elements or findings arise indicating that there are reasons to reconsider the validity of the protection status of the individual beneficiary, Article 45 serves the purpose of ensuring the procedural guarantees of beneficiaries that are subjected to such withdrawal procedures. 306 As is clear from Article 45(2), withdrawal may be based on new information concerning the country of origin as well as on information specific to the individual beneficiary of international protection. These provisions should be seen in connection with Articles II, 14, 16 and 19 Asylum Qualification Directive 2011/95/EU on the cessation and revocation of refugee status and subsidiary protection status, respectively. The obligation of Member States pursuant to Article 45(2)(b) to protect the con- 3 fidentiality of information pertaining to the individual beneficiary of international protection corresponds to the prohibition in Article 30(b) relating to the collection of infonnation concerning applicants for international protection (see Article 30 MN 2 and 3). The general rules and principles governing processing of personal data apply in withdrawal procedures as well (see Article 30 MN 4).

CHAPTER V APPEALS PROCEDURES Article 46

The right to an effective remedy 1. Member States shall ensure that applicants have the right to an effective remedy

before a court or tribunal, against the following: (a) a decision taken on their application for international protection, including a decision: (i) considering an application to be unfounded in relation to refugee status and/or subsidiary protection status; .ios Commission Proposal, COM(2009) 554 final, pp. 64-65 and Annex, p. 18; Amended Commission Proposal. COM(201 I) 319 final, Annex, p. 13. JOO Cf. recital 49.

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(ii) considering an application to be inadmissible pursuant to Article 33(2); (iii) taken at the border or in the transit zones of a Member Stale as described in Article 43(1); (iv) not to conduct an examination pursuant lo Article 39; (b) a refusal to reopen the examination of an application after its discontinuation pursuant to Articles 27 and 28; (c) a decision to withdraw international protection pursuant to Article 45. 2. Member States shall ensure that persons recognised by the determining authority as eligible for subsidiary protection have the right to an effective remedy pursuant to paragraph I against a decision considering an application unfounded in relation to refugee status. Without prejudice to paragraph l(c), where the subsidiary protection status granted by a Member State offers the same rights and benefits as those offered by the refugee status under Union and national law, that Member State may consider an appeal against a decision considering an application unfounded in relation to refugee status inadmissible on the grounds of insufficient interest on the part of the applicant in maintaining the proceedings. 3. In order to comply with paragraph I, Member Stales shall ensure that an effective remedy provides for a full and ex nunc examination of both facts and points of law, including, where applicable, an examination of the international protection needs pursuant to Directive 2011/95/EU, at least in appeals procedures before a court or tribunal of first instance. 4. Member States shall provide for reasonable time limits and other necessary rules for the applicant to exercise his or her right to an effective remedy pursuant to paragraph I. The time limits shall not render such exercise impossible or excessively difficult. Member Stales may also provide for an ex officio review of decisions taken pursuant to Article 43. 5. Without prejudice to paragraph 6, Member States shall allow applicants to remain in the territory until the time limit within which to exercise their right to an effective remedy has expired and, when such a right has been exercised within the time limit, pending the outcome of the remedy. 6. In the case of a decision: (a) considering an application to be manifestly unfounded in accordance with Article 32(2) or unfounded after examination in accordance with Article 31(8), except for cases where these decisions are based on the circumstances referred to in Article 31(8)(h); (b) considering an application to be inadmissible pursuant to Article 33(2)(a), (b) or (d); (c) rejecting the reopening of the applicant's case after it has been discontinued according to Article 28; or (d) not to examine or not to examine fully the application punuant to Article 39, a court or tribunal shall have the power to rule whether or not the applicant may remain on the territory of the Member State, either upon the applicant's request or acting ex officio, if such a decision results in ending the applicant's right to remain in the Member Stale and where in such cases the right to remain in the Member Stale pending the outcome of the remedy is not provided for in national law. 7. Paragraph 6 shall only apply to procedures referred to in Article 43 provided that: (a) the applicant has the necessary interpretation, legal assistance and at least one week to prepare the request and submit to the court or tribunal the arguments

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in favour of granting him or her the right to remain on the territory pending the outcome of the remedy; and (b) in the framework of the eumination of the request referred to in paragraph 6, the court or tribunal examines the negative decision of the determining authority in terms of fact and law. If the conditions referred to in points (a) and (b) are not met, paragraph S shall apply. 8. Member States shall allow the applicant to remain in the territory pending the outcome of the procedure to rule whether or not the applicant may remain on the territory, laid down in paragraphs 6 and 7. 9. Paragraphs S, 6 and 7 shall be without prejudice to Article 26 of Regulation (EU) No 604/2013. 10. Member States may lay down time limits for the court or tribunal punuant to paragraph 1 to aamine the decision of the determining authority. 11. Member States may also lay down in national legislation the conditions under which it can be assumed that an applicant has implicitly withdrawn or abandoned his or her remedy punuant to paragraph 1, together with the rules on the procedure to be followed. Content I. Drafting History.............................................................................................. IL Interpretation...................................................................................................

mn. I 2

I. Drafting History Against the background of the criticism raised against the level of judicial protection l under Article 39 former Asylum Procedures Directive 2005/85/EC,307 the recast Directive includes significant changes, in particular as regards the right to remain during appeal proceedings. The Commission initially proposed that, as a general rule with few exceptions relating to accelerated procedures and inadmissibility decisions, applicants should be allowed to remain in the territory pending the outcome of appeal, reflecting the general principle of automatic suspensive effect of appeals as pronounced by the ECJ and the ECtHR 308 However, the number of such exceptions was extended as a result of the changes in Article 31 on accelerated procedures and Article 33 on admissibility procedures. 309 Article 46 was adopted on the basis of the Commission's amended proposal, yet with further amendments agreed upon during Council negotiations. 310

II. Interpretation The right to an effective remedy before a court or a tribunal includes any decision 2 taken on an application for international protection. The most frequent and ordinary types of those decisions are listed in Article 46(l)(a)(i)-(iv) which cannot, however, be considered as exhaustive. Other types of decisions pertaining to such an application 107 Cf. Battjes, European Asylum Law and International Law, pp. 330-332; Vedsted-Hansen, in Guild/ Minderhoud (eds), The First Decade of EU Migration and Asylum Law, p. 255, 261 and 269-271. ""'Commission Proposal, COM(2009) 554 final, pp. 65-68 and Annex, p. 18; Amended Commission Proposal, COM(201 I) 319 final, pp. 70-73 and Annex, pp. 13-14. '°" Amended Commission Proposal, COM(2011) 319 final, Annex, p. 14. 11 ° Cf. Council doc. 8958/ 12 of 24 April 2012, pp. 136- I 43.

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may therefore be subject to review as well, insofar as they amount to a final decision rejecting the application on the substance.m On the other hand, the Directive does not require national law to provide for a specific or separate remedy against purely prepantory or procedunl decisions that do not preclude any substantive decision, such as the decision to examine an application under an accelerated procedure, provided that the legality of the final decision adopted in such an accelerated procedure may be the subject of judicial review. 312 In addition, the right to an effective remedy covers decisions refusing to reopen the examination of an application that has been discontinued pursuant to Articles 27 and 28 and decisions to withdraw international protection pursuant to Article 45, cf. Article 46(I)(b) and (c). 3 In line with the single procedure introduced by the recast Directive as well as the mandatory sequence of examination, pursuant to Article 10(2), of the two forms of international protection under Asylum Qualification Directive 2011/95/EU, it is explicitly stipulated in Article 46(2) that persons recognised u eligible for subsidiary protection shall have the right to an effective remedy against the decision considering their application for Convention refugee status unfounded. Apart from decisions on withdrawal of international protection as mentioned in Article 46(1)(c), this right to a separate review of the decision to grant subsidiary protection status may be dispensed with on grounds of insufficient interest, provided that this status offers the same rights and benefits as those offered by refugee status under EU law and national law, cf. Article 46(2), second subpara. However, this provision must be interpreted narrowly insofar as it amounts to a derogation from the right to an effective remedy against any decision rejecting an application for international protection imposed by Article 46, and to a restriction of the fundamental right to effective judicial protection enshrined in Article 47 CFR Therefore, the derogation pursuant to Article 46(2), second subpara, applies only if the rights and benefits offered by subsidiary protection status by the Member State concerned are genuinely identical to those offered by refugee status under EU law and national law.m In the light of these principles, and taking account of the need to ensure certainty in the application of this provision and the need to avoid inequality of treatment in its application, the ECJ has stated that the condition laid down in Article 46(2), second subpara, must be assessed on the basis of an evaluation of the relevant national legislation as a whole, and not on the basis of the particular circumstances of the applicant in question. Consequently, an appeal may not be dismissed as inadmissible under this provision even if it is found that, in the applicant's particular circumstances, granting refugee status could not confer on him more rights and benefits than granting subsidiary protection status. insofar as the applicant does not rely, or has not yet relied, on rights which are granted by virtue of refugee status, but which are not granted, or are granted only to a limited extent, by virtue of subsidiary protection status. 31 ◄ la According to Article 46(4), Member States shall provide for reasonable time limits and other modalities for applicants' exercise of the right to an effective remedy. While the time limits shall not render such exercise impossible or excessively difficult, it falls within the scope of Member States' procedural autonomy to set the limits, subject to the principles of equivalence and effectiveness. 315 In the light of the objective of expeditious 111 ECJ, Samba Diouf, C-69/10, EU:C:2011:524, paras 41- 42; see also Bodes/den Heijer/Lodder/ Wouters. European Migration Law, p. 284. 112 ECJ, Samba Diouf, C-69/10, EU:C:2011:524, paras 41- 45 and 56. m CT. EC}, E.G., C-662/17, EU:C:2018:847, paras 46-50. 114 Ibid., paras 63-66 and 70. " 5 Cf. EC}, JP, C-651/19, EU:C:2020:681, para 47.

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procedures, the principle of legal certainty and practical circumstances surrounding appeals against such inadmissibility decisions, the ECJ has considered that Article 46 does not preclude national legislation that prescribes a limitation period of 10 days, including public holidays, for bringing an action challenging a decision declaring a subsequent application for international protection to be inadmissible, provided that the applicants' genuine access to the procedural safeguards granted by EU law is ensured within that period, which the Court left it for the referring court to determine. 316 Member States may also, pursuant to Article 46(10), lay down time limits for the court or tribunal to examine the determining authority's decision brought before it. Here again, the principle of effectiveness has to be taken into account. Thus, Article 46(3), read in the light of Article 47 CFR, has been interpreted as precluding national legislation which sets a time limit of eight days within which a court hearing an appeal against a decision rejecting an application for international protection as inadmissible is to give a decision, if that court is unable to ensure, within such a time limit, that the substantive rules and procedural guarantees enjoyed by the applicant under EU law are effective. 317 On the other hand, the same provisions were interpreted as not precluding national legislation which sets a period of 60 days for the court to give a ruling, provided that that court is able to ensure, within that period, that the substantive and procedural rules which EU law affords to the applicant are effective. If that is not the case, that court must disapply the national legislation laying down the period for adjudication and, once that period has elapsed, deliver its judgment as promptly as possible. 318 The requirements under Articles 14 and 34 for an opportunity of a personal interview 3b are addressed to the authorities examining applications for international protection and taking decisions on substance or admissibility at first instance, and do not therefore apply to appeals procedures. Nonetheless, the conduct or absence of an interview during the first instance examination may have procedural impact at the appeal stage. In general, the requirements for an effective remedy according to Article 46 will have to be determined in a manner that is consistent with the principle of effective judicial protection under Article 47 CFR. 319 Thus, an applicant's right to be heard before any decision on the application is taken derives, during the appeals procedure under Article 46, from Article 47 CFR and is exercised, if necessary, by means of a hearing of the applicant by the court or tribunal. 320 The Asylum Procedures Directive 2013/ 32/EU has been interpreted, in the light of Article 47 CFR, as not precluding the national court examining an appeal against a decision rejecting a manifestly unfounded application for international protection from dismissing the appeal without itself hearing the applicant if the factual circumstances leave no doubt that that decision was well founded, on condition that the applicant was given the opportunity of a personal 6 " Ibid., paras 53-66. The concrete assumptions of this ruling can be illustrated by ECJ, Danqua, C-429/15, EU:C:2016:789, in which the Court interpreted the principle of effectiveness as precluding a national rule requiring an application for subsidiary protection status to be made within 15 working days upon notification of the applicant that she could apply for subsidiary protection after rejection of an asylum application. By contrast, a time limit of five days, including public holidays, for lodging an appeal against a decision to reject a subsequent application for international protection was considered not to be precluded in a case where the applicant concerned was held in detention, cf. ECJ, T.H.C., C-755/19, EU: C:2021:108. m Cf. ECJ, Beviindorlasi es Menekultugyi Hivatal (Tompa), EU:C:2020:218, paras 71-77. Jie Cf. ECJ, PG, C-406/18, EU:C:2020:216, para 37. m Cf. ECJ, Sacko, C-348/16, EU:C:2017:591, paras 29-32; ECJ, E.G., C-662/17, EU:C:2018:847, paras 46-48; ECJ, Alheto, C-585/16, EU:C:2018:584, para 125; see al.so ECJ, Tall, C-239/14, EU:C:2015:824, para si: 120 Cf. EC), Alheto, C-585/16, EU:C:2018:584, para 125; ECJ, Sacko, C-348/16, EU:C:2017:591, paras 37-44; ECJ, PG, C-406/18, EU:C:2020:216, para 31.

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Asylum Procedures Directive 2013/32/EU

Art. 46

interview on his or her application at first instance in accordance with Article 14, and that the report or transcript of such an interview was placed on the case file in accordance with Article 17(2). In this connection it is understood that the court may order that a hearing be conducted if it considers it necessary for the purpose of ensuring a full ex nunc examination as required under Article 46(3). 321 If, by contrast, the determining authority did not examine a ground of inadmissibility and therefore did not conduct the admissibility interview referred to in Article 34, it is for the court or tribunal to conduct such a hearing at the appeal stage if it considers that the relevant ground ought to have been examined by the first instance authority or should be examined on account of new evidence (see also Article 34 MN 2). 322 x According to Article 46(4), Member States shall provide for the necessary rules for applicants to exercise their right to an effective remedy pursuant to Article 46( I). While the measures of inquiry that a court may order have not been specifically delimited. these rules do not preclude the possibility for courts or ttibunals of ordering that an expert report be obtained as part of the basis for carrying out effective review of the decision taken by the determining authority. In the light of the specific role assigned to the courts and tribunals by Article 46, as well as the requirements for the assessment of facts and circumstances of applications for international protection laid down in Article 4 Asylum Qualification Directive 2013/32/EU, the court or tribunal cannot, however, base its decision solely on the conclusions of an expert's report and cannot, a fortiori, be bound by the assessment of the applicant's statements set out in those conclusions (see also Article 10 MN 2).323 3d Article 46(3) stipulates that, in order to comply with the right to an effective remedy, Member States shall ensure, at least at the first appeal stage, that the remedy provides for a full and ex nunc examination of both facts and points of law. This has to include, where applicable, an examination of the international protection needs pursuant to Asylum Qualification Directive 2011/95/EU. This rule, interpreted in the light of the fundamental right to effective judicial protection according to Article 47 CFR and the general principle of effectiveness, determines the solution of various procedural issues arising at the appeal stage. The term 'ex nunc' is interpreted as meaning that the processing of appeals must involve an examination by the court or ttibunal of all the facts and points of law necessary to make an up-to-date assessment of the case, including the obligation to take into account, where appropriate, both the evidence which the determining authority took or should have taken into account and new evidence that has come to light after the adoption of the decision under appeal. 324 This interpretation is corroborated by the term 'full' which may further imply that the court or ttibunal must interview the applicant unless the examination can be carried out on the basis of the information in the case-file (see above MN 3b). 325 As regards the e:,;aminatio11 of the protection needs, the qualifier 'where applicable' means that the review need not necessarily involve a substantive examination, but may concern the admissibility of the application pursuant to Article 33(2). 326 While Article 46(3) does 321 lll

a. ECJ, Sacko, C-348116, EU:C:2017:591, para 49. a. ECJ, Alheto, C-585/16, EU:C:2018:584, para 127.

m Cf. ECJ, F, C-473/16, EU:C:2018:36, paras 43-46. m Cf. EC,, Alheto, C-585/16, EU:C:2018:584, paras 106-111; ECJ, Buntksrepublik Deutsch/and v. XT, C-507/19, EU:C:2021:3; see also ECJ, Ahmedbekova, C-652/16, EU:C:2018:801, paras 92-103, concerning 'further representations' at the appeal st• (see above Article 40 M:-1 4a). llS ECJ, Alheto, C-585/16, EU:C:2018:584, paras 113-115. 316 ibid., para llS; see also ECJ, Fathi, C-56117, EU:C:2018:803, paras 61-72, finding that the national court is not required to examine of its own motion the application of Dublin III Regulation (EU) No 604/ 2013.

a.

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not establish a power to adopt a new decision following annulment of the initial decision, the need to ensure that this provision has practical effect requires that a new decision must be adopted within a short period of time in compliance with the judgment annulling the first instance decision. 327 In order to guarantee an effective judicial remedy within the meaning of Article 47 CFR, a court or tribunal is further required to vary a decision of the determining authority that does not comply with its previous judgment, and to substitute its own decision on the application for international protection by disapplying, if necessary, the national law that prohibits it from proceeding in that way. 328 The general rule on automatic suspensive effect of appeals is laid down in Article 46 4 (5), according to which Member States shall allow applicants to remain in the territory until the time limit for submission of an appeal has expired and, when the right to an effective remedy has been exercised within the time limit, pending the outcome of the remedy. According to Article 46(6), exceptions from the principle of automatic suspensive effect may be allowed in case of decisions considering an application (a) manifestly unfounded pursuant to Article 32(2) or unfounded upon examination in accelerated procedures under Article 31(8) (except Article 31(8)(h)); (b) inadmissible pursuant to Article 33(2)(a), (b) or (d) including subsequent applications with no new elements; (c) rejection of reopening a case that has been discontinued due to implicit withdrawal of the application; and (d) refusal to (fully) examine an application pursuant to Article 39. Importantly, it is here provided that a court or tribunal shall have the power to rule on interim measures either upon request or ex officio, cf. Article 46(6) in fine. 329 In the context of border procedures, these exceptions from automatic suspensive effect are restricted by Article 46(7), stipulating that the applicant must have the necessary time and facilities to prepare the request for interim measures and that the court or tribunal examines the negative first instance decision in terms of both fact and law. According to Article 46(8), applicants must be allowed to remain in the tenitory 4a pending the outcome of the procedure to decide on interim measures under Article 46(6) and (7). As a modification, Article 41(2)(c) allows Member States to derogate from Article 46(8) in the specific cases of subsequent applications mentioned in Article 41(1). Notably, the obligations to prevent direct and indirect refoulement, as mentioned in Article 41(1), must be considered applicable in situations of such derogation. As a consequence of the right to remain under Article 46(6) and (8), an applicant cannot be detained with a view to removal even if a return decision has been adopted, for as long as he or she is entitled to remain pursuant to these provisions. 330 Thus, all the legal effects of such a return decision are suspended pending the procedure to decide on interim measures during the appeal against the rejection of the application for protection and, if relevant, the appeals procedure in its entirety. 331 The abovementioned rules and principles on suspensive effect of appeals apply to the 4b remedy of a court or tribunal of first instance. If a Member State introduces a second level of appeal before a court or tribunal, it will have considerable procedural autonomy in terms of the right of appeal and suspensive effect, yet with due regard to the m Cf. ECJ, Alheto, C-585/16, EU:C:2018:584, para 149.

m Cf. ECJ, Torubarov, C-556/17, EU:C:2019:626, para 74; ECJ, PG, C-406/18, EU:C:2020:216, para 23. For an analysis of the requirements for such rulings on interim measures, see Reneman, EU Asylum Procedures. pp. 139-143; cf. ECtHR. Judgment of 5 February 2002, No 51564/99, Conka v. Belgium, paras 75-83; ECtHR, Judgment of 26 April 2007, No 25389/05, Gebremedhin v. France, paras 58-67; EC1HR, Judgment of 22 September 2009, No 30471/08, Abdolkhani and Karimnia v. Turkey, paras 108 and 111-117; see also European Council on Refugees and Exiles, Information Note, pp. 52-55. llO Cf. ECJ, C and Others, C-269/18 PPU, EU:C:2018:544, paras 54-55. 331 Ibid., paras 50-52; ECJ, Gnandi, C-181/16, EU:C:2018:465, paras 61-64. 329

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Asylum Procedures Directive 2013/32/EU 332

principles of equivalence and effectivenes. In that context, the ECJ has interpreted the Asylum Procedures Directive 2013/32/EU, read in the light of Article 47 CFR, as not precluding national legislation which provides for an appeal procedure against a firstinstance judgment confirming an administrative decision which rejects an application for international protection, without granting it automatic suspensory effect, but which allows the court which has handed down that judgment to order the suspension of its enforcement, after having assessed whether or not the grounds raised in the appeal brought against that judgment are well founded, but not whether or not there is a risk of serious and irreparable damage for that applicant as a result of the enforcement of that judgment.m

CHAPTER VI GENERAL AND FINAL PROVISIONS Artide47 Challenge by public authorities This Directive does not affect the possibility for public authorities of challenging the administntive and/or Judicial decisions as provided for in national legislation.

Article 48 Confidentiality Member States shall ensure that authorities implementing this Directive are bound by the confidentiality principle as defined in national law, in relation to any information they obtain in the course of their work.

Article 49 Cooperation Member States shall each appoint a national contact point and communicate its address to the Commission. The Commission shall communicate that information to the other Member States. Member States shall, in liaison with the Commission, take all appropriate measures to establish direct cooperation and an exchange of information between the competent authorities. When resorting to the measures referred to in Article 6(5), the second subparagraph of Article 14(1) and Article 31(3)(b), Member States shall inform the Commission as soon as the reasons for applying those exceptional measures have ceased to exist and at least on an annual basis. That information shall, where possible, include data on the percentage of the applications for which derogations were applied to the total number of applications processed during that period.

m Cf. ECJ, X and Y, C-180/17. EU:C:2018:775, para 34; ECJ, X, C-175/17, EU:C:2018:776, para 38. m Cf. ECJ, FR, C-422/18 PPU, EU:C:2018:734; sec also ECJ, X and Y, C-180/17, EU:C:2018:775, para 44, and ECJ. X, C-175/ I 7, EU:C:2018:776, para 48, with slightly different wording.

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Article 50 Report :-.lo later than 20 July 2017, the Commission shall report to the European Parliament and the Council on the application of this Directive in the Member States and shall propose any amendments that are necessary. Member Stales shall send lo the Commission all the information that is appropriate for drawing up its report. After presenting the report, the Commission shall report to the European Parliament and the Council on the application of this Directive in the Member Stales al least every five years. As part of the first report, the Commission shall also report, in particular, on the application of Article 17 and the various tools used in relation to the reporting of the personal interview.

Article 51 Transposition I. Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with Articles I to 30, Article 31(1), (2) and (6) to (9), Articles 32 to 46, Articles 49 and 50 and Annex I by 20 July 2015 al the latest. They shall forthwith communicate the text of those measures lo the Commission. 2. Member States shall bring into force the laws, regulations and administrative provisions necessary lo comply with Article 31(3), (4) and (5) by 20 July 2018. They shall forthwith communicate the text of those measures lo the Commission. 3. When Member States adopt the provisions referred to in pangraphs I and 2, they shall contain a reference to this Directive or be accompanied by such a reference on the occasion of their official publication. They shall also include a statement that references in existing laws, regulations and administrative provisions to the directive repealed by this Directive shall be construed as references to this Directive. Member States shall determine how such reference is lo be made and how that statement is to be formulated. 4. Member States shall communicate to the Commission the text of the main provisions of national law which they adopt in the field covered by this Directive.

Article 52 Transitional provisions Member States shall apply the laws, regulations and administrative provisions referred to in Article 51 (1) to applications for international protection lodged and to procedures for the withdrawal of international protection started after 20 July 2015 or an earlier date. Applications lodged before 20 July 2015 and procedures for the withdrawal of refugee status started before that date shall be governed by the laws, regulations and administrative provisions adopted pursuant to Directive 2005/85/EC. Member States shall apply the laws, regulations and administrative provisions referred lo in Article 51(2) to applications for international protection lodged after 20 July 2018 or an earlier date. Applications lodged before that date shall be

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Art. 53

Asylum Procedures Directive 2013/32/EU

governed by the laws, regulations and administntive provisions in accordance with Directive 2005/85/EC.

Article 53 Repeal Directive 2005/85/EC is repealed for the Member States bound by this Directive with effect from 21 July 2015, without prejudice to the obligations of the Member States relating to the time limit for transposition into national law of the Directive set out in Annex II, Part 8. References to the repealed Directive shall be construed as references to this Directive and shall be read in accordance with the correlation table in Annex Ill.

Article 54 Entry into force and application This Directive shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union. Articles 47 and 48 shall apply from 21 July 2015.

Article 55 Addressees This Directive is addressed to the Member States in accordance with the Treaties.

ANNEX I

Designation of safe countries of origin for the purposes of Article 37(1) A country is considered as a safe country of origin where. on the basis of the legal situation, the application of the law within a democratic system and the general political circumstances, it can be shown that there is generally and consistently no persecution as defined in Article 9 of Directive 2011/95/EU, no torture or inhuman or degrading treatment or punishment and no threat by reason of indiscriminate violence in situations of international or internal armed conflict. In making this assessment, account shall be taken, inter alia, of the extent to which protection is provided against persecution or mistreatment by: (a) the relevant laws and regulations of the country and the manner in which they are applied; (b) observance of the rights and freedoms laid down in the European Convention for the Protection of Human Rights and Fundamental Freedoms and/or the International Covenant for Civil and Political Rights and/or the United Nations Convention against Torture, in particular the rights from which derogation cannot be made under Article 15(2) of the said European Convention; (c) respect for the non-refoulement principle in accordance with the Geneva Convention;

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(d) provision for a system of effective remedies against violations of those rights and freedoms.

ANNEX II

PART A Repealed Directive (referred to in Article 53) Council Directive 2005/85/EC

(OJ L 326, 13.12.2005, p. 13).

PART B Time limit for transposition into national law (referred to in Article 5 I) Time-limit for transposition

Directive

2005/85/EC

First deadline: I December 2007 Second deadline: I December 2008

ANNEX III Correlation Table [

... ]

Vedsted-Hansen

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Chapter 22. Asylum Reception Conditions Directive 2013/33/EU Select Blbliopapby: Boeles/den Heijer/Lodoo/Wouten. European Migration Law, 2nd edn (lntmentia. 2014); BrelliNrvstad, Reception Conditions for Asylum Seekers in Norway and the EU (Institute for Social Research Oslo, 2007); Commission ProposaL COM(2001) 181 [henceforth: 2001 Commission Original Proposal); Commission Proposal, COM(2008) 815 [henceforth: 2008 Commission Proposal); Commission Amended Proposal, COM(2011) 320 [henceforth: 2011 Commission Amended Proposal!; Costello (with loffe/Biichsel), Article 31 of the 1951 Convention Relating to the Status of Refugees, July 2017, PPLA/2017/01, available at: https://www.refworld.org/docid/59ad55c24.html [last accessed~ May 2021); De Bauche, Identification of (Vulnenble) Asylum Seekers with Special Needs: Comparative study and recommendations for Law and practices, Study done for the ERF during the year 2009 (2010); De Bauche, Vulnerability in European law on asylum: A conceptualization under constTvction (Bruylant, 2012); De Bruycker/Odysseus Academic Network, Comparative Overview of the Implementation of the Directive 2003/9 of 27 January 2003 Laying Down Minimum Standards for the Reception of Asylum Seekers in the EU Member States (2006), available at: http://ec.europa.eu/dgs/home-affain/e-library/docs/ pdf/odysseus_synthesis_report_2007_en_en.pdf [last accessed 28 May 2021); De Bruycker (ed)/Bloom6eld/Tsourdi/Petin, Alternatives to Immigration Detention: Time for Implementation (Institute for European Studies of the Universite Libre de Bruxelles, 2015); De Bruycker/Mananashvill/Renaudi~re. The Extent of Judicial Control of Pre-Removal Detention in the EU: Synthesis Report of the Project CONTENTION (2014); European Commission, Report to the Council and to the European Parliament on the Application of Directive 2003/9/EC of 27 January 2003 Laying down Minimum Standards for the Reception of Asylum Seek.en. COM(2007) 745 final; ECRE, Comments on the European Commission Proposal to recast the Reception Conditions Directive, April 2009; ECRE, Information Note on the Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted (recast) (2013); Grabenwarter, European Convention on Human Rights: Commentary (C.H. Beck/Hart/Nomos, 2014); Handoll, 'Reception Conditions of Asylum Seekers', in: Dias Urbano de Sousa/De Bruycker (eds), The Emergence of a European Asylum Policy (Bruylant, 2004), p. 113; Handoll, 'Directive 2003/9 on Reception Conditions of Asylum Seekers: Ensuring "Mere Subsistence• or a "Dignified Standard of Llving"?', in: Baldaccini/Guild/Toner (eds), Wh05t Freedom, Security and Justice (Han Publishing. 2007), p. 195: Inglese, 'The Right to Healthcare in the Common European Asylum System', EJML 20 (2018), p. 135-156; McDonough, 'Revisiting Germany's Residenzpflicht in Light of Modem EU Asylum law', Michigan Journal of International Law 30 (2009), p. 515-546; Meyer, 'Mindestaufnahmebedingungen fiir Asylbewerber: Nivellierung auf niedrigem Niveau oder Fortschritt fur eine gemeinsame Asylpolitik in Europa?', Neue Zeitschrift fur Verwaltungsrecht (2004), p. 547-551; Moreno Lax/Guild, 'Reception Conditions', in: Peers/Moreno Lax/Garlick/Guild (eds), EU Immigration and Asylum Law, 2nd edn, Vol. 3 (Asylum) (Martinus Nijhoff, 2015), p. 497; Noll/Fagerlund/Llebaut, Study for the European Commission: On the Feasibility of Processing Asylum Oaims Outside the EU against the Background of the Common European Asylum System and The Goal of a Common Asylum Procedure, European Commission (2002); O'Nions, 'No Right to Liberty: The Detention of Asylum Seekers for Administrative Convenience', EJML 10 (2008), p. 149-185; Peers, 'Key Legislative Developments on Migration in the European Union', EJML 8 (2006), 321-356; Peers, EU Justice and Home Affairs Law: Volume /: EU Immigration and Asylum Law, 4 edn (OUP, 2016); Saulnier-Cassia. 'La directive 2013/33/UE: la reforme de l'accueil des personnes demandant la protection intemationale dans un Etat membre de !'Union europ«nne', Revue trimestrielle de droit europeen (2016), p. 43-53; Slingenberg. The Reception of Asylum Seekers under International Law (Hart Publishing. 2014); Slingenberg. 'The Right Not to be Dominated: The Cue Law of the European Coun of Human Rights on Migrants' Destitution', HRL Rev. 19 (2019), p. 291-314; Tsourdi, 'Reception conditions for asylum seekers in the EU: towards the prevalence of human dignity', Journal of Immigration, Asylum and Nationality Law 29 (2015), p. 9-24; Tsourdi, 'EU Reception Conditions: A Dignified Standard of Living for Asylum Seekers?', in: Chetail/de Bruycker/Maian.i (eds), Reforming the Common European Asylum System (Brill, 2016), p. 271-316; Tsourdi, 'Asylum Detention in EU Law: Falling between Two Stools?', Refugee Survey Quaterly 35 (2016), p. 7-24; Tsourdi, 'International human rights law, EU law, and alternatives to immigration detention: shaping control standards and judicial interaction in an heterarchy', in: Moraru/Comelisse/De Bruycker (eds), Law and Judicial Dialogue on the Rttum of lrrtplar Migrants from the European Union (Hart Publishing. 2020), p. 167-191; Tsourdi/Costello, 'The evolution

l·

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of EU law on Refugees and Asylum', in: Craig/De Burca (eds), The Evolution of EU Law: Third f.dition (Oxford University Press, 2021), p.793-823; ~HCR, UNHCR Annotated Comments on Council Directive 2003/9/EC (2003), available at: http://www.refworld.org/docid/3D770I04.h1ml [last accessed 28 May 2021]; UNHCR, ~HCR Comments on the European Commission's amended recast proposal for a Directive of the European Parliament and the Council laying down standards for the reception of asylum-seekers (2011), available at: http://www.unhcr.org/51Jdalcc9.pdf !last accessed 28 May 2021]; UNHCR, UNHCR Guidelines on the Applicable Criteria and Standards relating lo the Detention of Asylum-Seekers and Alternatives to Detention (2012), available at: http://www.refworld.org/pdfid/ 503489533b8.pdf [last accessed 28 May 2021]; Vincmzi, 'Reception Conditions of Asylum Seekers Comments', in: Dias Urbano de Sousa/De Bruycker (eds), The Emergence of a European Asylum Policy (Bruylant, 2004), p. 157. Note that literature in the ~leered bibliography will be mentioned in an abbreviated wrsion in the text below, referring to the authors(s) and a short title only.

Directive 2013/33/EU of the European Parliament and of the Council of 26 June 2013 laying down standards for the reception of applicants for international protection· Official Journal L 180, 29/06/2013, p. 96-116 THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on the Functioning of the European Union, and in particular Article 78(2)(f) thereof, Having regard to the proposal from the European Commission, Having regard to the opinion of the European Economic and Social CommitteeO>, Having regard to the opinion of the Committee of the Regions, Acting in accordance with the ordinary legislative procedurelll, Whereas: [ )

...

HAVE ADOPTED THIS DIREcnYE:

CHAPTER I PURPOSE, DEFINITIONS AND SCOPE Article I

Purpose The purpose of this Directive is to lay down standards for the reception of applicants for international protection ('applicants') in Member States. · The editors and the author express their gratitude to Markus Peek who contributed as author and coauthor respectively in the two previous editions of this book. for a stimulating collaboration over the years and for hdpful exchanges on this chapter. OI OJ C 317, 23.12.2009, 110; OJ C 24, 28.1.2012, 80. 121 OJ C 79, 27.3.2010, 58. 131 Position of the European Parliament of 7 May 2009 (OJ C 212 E, 5.8.2010, p. 348) and position of the Council at first reading of 6 June 2013 (not yet published in the Official Journal). Position of the European Parliament of 10 June 2013 (not yet published in the Official Journal).

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Art. 1

Asylum Reception Conditions Directive 2013/33/EU Content

I. General remarks·········································-··················································· II. Drafting history...............................................................................................

mo. 1 2·

III. Purpose..............................................................................................................

7

I. General remarks I

Through the deletion of the tenn 'minimwn', 1 contained in the fonner directive, the legislator signals a higher level of legal harmonisation compared to that instrument. Unlike the respective first article of the Asylum Procedures Directive 2013/32/EU, 2 there is no use of the adjective 'common'. This reflects the legal basis in the TFEU. 3

II. Drafting history 2

The European Parliament and the Council of the European Union adopted the Asylwn Reception Conditions Directive 2013/33/EU on 26 June 2013. The Directive has Article 78(2)(0 TFEU as its legal basis. It results from two Commission proposals released respectively in 2008 and 2011. 4 The instrument recasts the fonner Asylum Reception Conditions Directive 2003/9/EC that was based on a Commission proposal of 2001. 5 That Directive established minimum standards covering different aspects of the rights and treatment of asylwn seekers. 6 The recast Directive fonns part of the second stage of development of a Common European Asylum System (CEAS) as foreseen in the Tampere Conclusions of 19997 and confinned by the Hague" and Stockholm9 programs. 10 This fact is highlighted in the Directive's preamble. 11 3 In its 2007 report on the application of the Directive, the Commission noted that Member States had not lowered their previous standards of assistance to asylum seekers as a result of the adoption of the fonner Asylwn Reception Conditions Directive 2003/ 9/EC. 12 However, it also stressed that the wide discretion allowed by the Directive in a nwnber of areas undermined the objective of creating a level playing field in the area of reception conditions. 13 The 2008 Commission Proposal bad two main aims: 'to ensure higher standards of treatment for asylwn seekers with regard to reception conditions that would guarantee a dignified standard of living. in line with international law, and, secondly, to limit the phenomenon of secondary movements of asylum seekers amongst

See former Asylum Reception Conditions Directive 2003/9/EC. Article 1. See Asylum Procedures Directive 2013/32/EU, Article l; emphasis added. 'See Anicle 78(2)(0 TFEU. • Commission Proposal, COM(2008) 815 and Commission Amended Proposal, COM(201 I) 320. s Commission Proposal. COM(2001) 181. • Emphasis added. The former instrument was based on Article 63(1) TEC which included 'minimum standards on the reception of asylum seekers in the Member States' as one of the measures to be adopted. 7 Presidency Conclusions of the Tampere European Council (15 and 16 October 1999). 1 The Hague Programme: Strengthening Freedom, Security and Justice in the European Union (OJ 2005 C 53/ I). • The Stockholm Programme: An Open and Secure Europe Serving and Protecting Citizens (OJ 2010 C 115/1). • 0 See above Thym. Constitutional Framework. MN 8-9. II See Recitals 2-5. 12 Commission Repon, COM(2007) 745, p. 10. 13 Ibid., 10-11. 1

2

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Member States, to the degree that such movements are generated from divergences between national reception policies' . 14 The European Parliament adopted its first reading position on the basis of this text in 4 2009. 15 Negotiations within the Council soon revealed that there was intense discord and that it would not be possible to find agreement on the basis of the text proposed. In order to overcome the political impasse, the Commission launched its amended recast proposal on June 2011. 16 Therein, the Commission explained that the text introduces clearer concepts and more simplified rules and grants Member States more flexibility in integrating them into their national legal systems. 17 However, it stressed that the amended proposal was based on the same fundamental principles. 18 With the introduction of this new text, negotiations between the two co-legislators 5 resumed and, in the course of 2012, a series of informal trialogues 19 took place that resulted in political compromise in September 2012. 20 The text was officially adopted and published in June 2013. Member States bound by the recast Directive had to transpose it by July 2015. 21 In 2016, the European Commission introduced another recast for the reception 6 conditions directive. 22 The next paragraphs selectively highlight some of its envisaged features, such as enhancing applicants' self-reliance and sanctioning secondary movements, including where they occur to avoid procedures under the Dublin III Regulation. A 2018 compromise text did not meet with the full endorsement of Member State representatives in CO REPER. 23 The Commission did not present an updated proposal as part of its New Pact on Migration and Asylum. 24 Instead, it endorsed the existing 2018 political agreement and urged the co-legislators to conclude negotiations promptly. 25 At the time of writing. negotiations on that instrument were ongoing.

III. Purpose The Asylum Reception Conditions Directive 2013/33/EU was adopted 'in the interests 7 of clarity' (recital I), as part of the development of a common policy on asylum. The colegislators highlight the role of the principle of solidarity and fair-sharing of responsibility in such a policy, including its financial implications, between the Member States (recital 1). To that end they foresee that the resources of European Refugee Fund and of EASO should be mobilised to provide adequate support to Member States' efforts in implementing the standards set in the second phase of CEAS. 26 14

Commission Proposal, COM(2008) 815, Explanatory Memorandum, p. 4. Ewopean Parliament Legislative Resolution, 2008/0244(COD). 16 201 l Amended Commission Proposal. 17 Ibid., Explanatory Memorandum. p. 3. 18 [bid 1• Although the Council had never officially adopted a first reading position on the basis of the Commission Proposal. COM(2008) 815. trialogucs were used as a tool to speed up negotiations. The colegislators tried to come to a commonly agreed tat, prior to an official adoption by the Council of its first reading position on the basis of the 2011 RCD amended Commission proposal. 211 Council doc. 14112/1/12, REV 1 of September 2012. 21 Article 31. 22 Commission Proposal, COM(2016) 465. ll See Council doc. 5458/19 of 21 January 2019. 24 Commission Communication, New Pact on Migration and Asylum, COM(2020) 609. is Ibid., p.3. 2> Stt recital 6; as mentioned in that recital this should be the case in panicular for 'those Member States that are faced with specific and disproportionate pressures on their asylum systems, due in particular to their geographical or demographic situation'. 15

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Chp. 22 Art. 8

2

Asylum Reception Conditions Directive 2013133/EU

One of the principle aims of the Directive is to offer to applicants for international protection, regardless of the Member State in which their application for international protection is made, an equivalenl level of treatment as regards reception conditions (recital 5). Reception conditions should 'suffice to ensure them a dignified standard of living' (recital 11). The co-legislators insist also on 'full compliance with the principles of the best interests of the child and of family unity' (recital 9). Apart from ensuring that Member States respect the obligations deriving from instruments of international law to which they are party (recital 10), the harmonisation of conditions for the reception of applicants is expected to 'help to limit the secondary movements of applicants influenced by the variety of conditions for their reception' (recital 12).

Article 2 Definitions For the purposes of this Directive: (a) 'application for international protection': means an application for inlernational protection as defined in Article 2(h) of Directive 2011/95/EU; (b) 'applicant': means a third-country national or a stateless person who has made an applicalion for inlernational prolection in respect of which a final decision has not yet been taken; (c) 'family memben': means, in so far as the family already existed in the country of origin, the following members of the applicant's family who are present in the same Member State in relalion to the application for international protection: - the spouse of the applicant or his or her unmarried partner in a stable relationship, where the law or practice of the Member State concerned treats unmarried couples in a way comparable to married couples under its law relating to third-country nationals; - the minor children of couples referred to in the first indent or of the applicant, on condilion that they are unmarried and regardless of whether they were born in or out of wedlock or adopted as defined under national law; - the father, mother or another adult responsible for the applicant whether by law or by the practice of the Member State concerned, when that applicant is a minor and unmarried; (d) 'minor': means a third-country nalional or stateless person below the age of 18 years; (e) 'unaccompanied minor': means a minor who arrives on the territory of the Member States unaccompanied by an adult responsible for him or her whether by law or by the practice of the Member State concerned, and for as long as he or she is not effectively taken into the care of such a person; it includes a minor who is left unaccompanied after he or she has entered the territory of the Member States; (0 'reception conditions': means the full set of measures that Member States grant to applicants in accordance with this Directive; (g) 'material reception conditions': means the reception conditions that include housing, food and clothing provided in kind, or as financial allowances or in vouchers, or a combination of the three, and a daily expenses allowance; (h) 'detention': means confinement of an applicant by a Member State within a particular place, where the applicant is deprived of his or her freedom of movement; 1544

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(i) 'accommodation centre': means any place used for the collective housing of

applicants; (j) 'representative': means a penon or an organisation appointed by the competent bodies in order to assist and represent an unaccompanied minor in procedures provided for in this Directive with a view to ensuring the best interests of the child and exercising legal capacity for the minor where necessary. Where an organisation is appointed u a representative, it shall designate a penon responsible for carrying out the duties of representative in respect of the unaccompanied minor, in accordance with this Directive; (k) 'applicant with special reception needs': means a vulnerable person, in accordance with Article 21, who is in need of special guarantees in order to benefit from the rights and comply with the obligations provided for in this Directive. Content

mn. I. General remarks.............................................................................................. II. Drafting history............................................................................................... Ill. Definitions........................................................................................................ I. Application for international protection (a)........................................ 2. Applicant (b) ............................................................................................... 3. Family members (c) ................................................................................... 4. Minor (d)_.................................................................................................... 5. Unaccompanied minor (e) ....................................................................... 6. Reception conditions (0............................................................................ 7. Material reception conditions (g) ........................................................... 8. Detention (h) ............................................................................................... 9. Accommodation centre (i) ....................................................................... 10. Representative (j) ........................................................................................ 11. Applicant with special reception needs (k) ..........................................

I 2

4 4 6 12 18 19 20 21 22 26 27 28

I. General remarks The definitions as such do not have direct regulatory effect. Hence, there is no absolute need for Member States to transpose these definitions into national law. However, the terms used in the Directive should be understood in the same way in national law whenever they appear in the subsequent provisions.27

II. Drafting history A number of differences stem from the fact that the applicability of the Directive has 2

been extended to applicants of subsidiary protection. In addition, the definition of 'family members' under (c) has been somewhat broa- 3 dened, however to a lesser extent than proposed by the Commission in both its 2008 and 2011 proposals, as well as by the European Parliament in its 2009 position. The addition of the terms 'representative' and 'applicant with special reception needs' attests to the greater importance that the recast attaches to the identification and treatment of vulnerable persons.

2' Peek, Richtlinienumsetzung: Europan:chtliche Anfordenmgen und mitgliedstaatliche Praxis: eine Untersuchung am Beispiel des Einwandnvngs- und Asylrechts (Nomos, 2010), p. 110 et seqq.

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Art. 2

Asylum Reception Conditions Directive 2013/33/EU

III. Definitions 1. Application for international protection (a)

The term 'application for international protection' has replaced the term 'application for asylum' contained in the former Asylum Reception Conditions Directive 2003/9/ EC. 28 This approach has been adopted as well in the Asylum Qualification Directive 2011/95/EU, the Asylum Procedures Directive 2013/32/EU and the Dublin III Regulation (EU) No 604/2013. Namely, the Directive's scope has been enlarged to cover applications for subsidiary protection. This is in conformity with the new legal basis in the TFEU. 29 S According to the text of the Directive, this term should be interpreted in exactly the same way as Article 2(h) of the Asylum Qualification Directive 2011/95/EU. The definition contained in the Asylum Qualification Directive 2011/95/EU makes it clear that Member States must not consider the application for international protection as a formal act. Irrespective of the form, the simple act of expressing a request for international protection has to be considered as an application for international protection under the Directive, even if it is formulated in an unclear and ambiguous way. This assumption applies unless the person, explicitly states otherwise, requesting for example other complementary forms of protection established by national law.

4

2. Applicant (b) The directive excludes from its applicability citizens of the Union. 30 Therefore, only third-country nationals and stateless persons can introduce applications for international protection in the terms of the Directive. This reflects the rebuttable presumption of EU Member States accepting each other as 'safe countries', a presumption that lays in the basis of CEAS. 31 It is in line with the position in the Asylum Qualification Directive 2011/95/EU. 12 However, it has been argued that imposing such a restriction could be regarded as contravening Article 42 of the Geneva Convention, which prohibits States from limiting the personal scope of Article l, or making reservations to Article 3 of that Convention. 33 7 The third country national or stateless person stops being an 'applicant' once a final decision on her application has been taken. What has to be understood as 'final decision' is defined in Article 2(e) Asylum Procedures Directive 2013/32/EU. 8 Applicants for international protection, who are subject to procedures foreseen in the Dublin Ill Regulation (EU) No 604/2013, fall under the penonal scope of the Directive. Namely, the text of the Directive stipulates that it is applicable 'during all stages and types of procedures concerning applications for international protection' (recital 8).34 This is reaffirmed by recital 11 of the Dublin Ill Regulation (EU) No 604/2013. 6

28

See former Asylum Reception Conditions Directive 2003/9/EC, Article 2(b).

29

See Article 78(2)(0 TFEU. 10 See Article 20 TFEU for a definition of Union citizenship. lt See Protocol No 29 TEC (OJ 2006 C 321 E/306). 32 See Asylum Qualification Directive 2011 /95/EU, Articles 2 (d)-(g). 33 McAdam, The Qualification Direaive: AN Overview' in: Zwaan (ed), The Qualification Directive:

Central Themes. Problem Issues, and Implementation in Selected Member States (Wolf Legal Publishers, 2007), p. 10; see also ECRE, Information Note on the Directive 2011/95/EU. p. 4. 34 Emphasis added.

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This issue was also addressed by the ECJ in a 2012 judgment. 35 The Court held that 9 the provisions of the former Asylum Reception Conditions Directive 2003/9/EC, read in conjunction with the provisions of the Dublin II Regulation (EC) No 343/2003, point to the conclusion that 'an application for asylum is made before the process of determining the Member State responsible begins'. 36 The ECJ stressed that the provisions of the former Asylum Reception Conditions Directive 2003/9/EC aim 'in particular to ensure full respect for human dignity and to promote the application of Articles I and 18 of the Charter'.37 It concluded that a Member State which has received an asylum application is responsible for granting the reception conditions under the former Asylum Reception Conditions Directive 2003/9/EC, even to an asylum seeker in respect of whom it decides, under the Dublin II Regulation (EC) No 343/2003, to call upon another Member State, as the Member State responsible for examining his or her application for asylum. 38 As to the duration of the obligation, the Court found that 'only the actual tnnsfer of 10 the asylum seeker by the requesting Member State brings to an end the examination of the application for asylum by that State and its responsibility for granting the minimum reception conditions'.39 Finally, the Court has clarified that the act of 'making' an application for interna- 11 tional protection does not entail any administrative formalities. 40 Thus, the acquisition of the status of applicant for international protection cannot be subject either to the registration or to the lodging of the application. 41

3. Family members (c) The circle of family members is narrow, although the Directive somewhat enlarged 12 the definition. A new element, compared to the previous version of the Directive, is the inclusion of 'the father, mother or another adult responsible for the applicant whether by law or by the practice of the Member State concerned, when that applicant is a minor and unmarried'. Member States which treat stable relationships out of marriage on equal footing with 13 married couples under their national alien's law, are obliged to treat such unmarried partners as family members with regard to reception conditions. This obligation applies even if the Member State concerned exercises equal treatment in practice only. However, this provision generally leaves family members unprotected in Member States that do not recognise (same-sex) registered partnerships. 42 This position is most likely inconsistent with recently developed principles of ECtHR case law on the protection of private and family life applied to LGBTI people and their familles. 43 The Directive includes only family members who are present in the same Member 14 State in relation to the application for asylum. This fails to accommodate family ties which may have been formed during flight, thus excluding them from the guarantees 1~

ECJ, Cimade and GISTI. C-179/11, EU:C:2012:594. Ibid., para 41. 17 Ibid., para 42. Article I CFR concerns the right to hwnan dignity whereas Article 18 CFR the right to asylwn. :111 Ibid., para 50. 19 Ibid., para 55; (emphasis added). 40 ECJ, Ministerio Fiscal, C-36/20 PPU, EU:C:2020:495, para 93. 41 Ibid., para. 94. 42 See also Tsourdi, Laying the ground for LGBTI sensitive asylum decision-making in Europe (ILGA, 2014), p. 9-10. '-' Ibid.; sec also EQHR, Judgment of 24 June 2010, No 30141/04, SchalJc and Kopf v. Austria and ECtHR, Judgment of 7 November 2013, Nos 29381/09 and 32684/09, VaUianatos and othm v. Greea. 16

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Chp. 22 Art.

2

Asylum Reception Conditions Directive 2013/33/EU

laid down in the Directive, for example with regard to the maintenance of family unity. 44 This limitation corresponds with the absence of any provisions governing crossborder family reunification of applicants for international protection. 45 15 The final text emudes married minon from the legal family definition. The 2011 Amended Commission Proposal had included them 'provided they are not accompanied by their spouses and it is in their best interests to consider them as family members'.~ This formulation would have rendered the text more coherent; currently married minors, who are not accompanied by their spouse in the EU territory, risk becoming legally unaccompanied minors if they are not accommodated together with members of their family. 47 16 Moreover, the 2011 Amended Commission Proposal had included in the case of unmarried minors 'the minor siblings of the applicant, regardless of whether they were born in or out of wedlock or adopted as defined under the national law, provided they are unmarried or married but not accompanied by their spouses and it is in their best interests to be considered family members'. 48 The 2009 European Parliament Resolution envisaged the inclusion of a further category to the family definition, that of 'dependent adults with special needs'. 49 17 The Council did not agree to these formulations that are not included in the final text. Recital 22 somewhat counterbalances the exclusion of these clauses. Member States are also free to apply the standards of the Directive on persons who are not defined as 'family members' (see Article 4).

4. Minor (d) 18

The age of majority is set at 18 years.

5. Unaccompanied minor (e) 19

The definition of the term 'unaccompanied minor' can be found in identical wording in all recast directives on asylum as well as in the Dublin III Regulation (EU) No 604/ 2013. 50 It is very similar to the definition given by UNHCR in its Guidelines on Policies and Procedures in Dealing with lJnaccompanied Children Seeking Asylurn. 51 A minor is regarded as 'unaccompanied' irrespective of whether she entered the Member State's territory unaccompanied or left behind by the person responsible for her.

6. Reception conditions (f) 20

'Reception conditions' are defined as all measures the Member States grant to applicants for international protection. The term refers to the general conditions of the asylum seekers' stay in a Member State, therefore including, for example, the right to be informed about their legal status.

44

UNHCR. UNHCR Comments on the European Commission's amended recast proposal. p. 4. The only family mmification that has been harmonised at EU level i.s the one of refugees which is regulated in Articles 9-12 of the Family Reunification Directive 2003/86/EC. 46 Amended Commission Proposal, COM(201 I) 320 final, Article 2(c). •;Seethe definition of unaccompanied minor in Article 2(e). 41 Amended Commission Proposal, COM(2011) 320 final, Article 2(c). 49 European Parliament Resolution P6_TA(2009)0376 of 7 May 2009, Article 2(c)(vi). 50 See Asylum Procedures Dincti~ 2013/32/EU, Article 2(m), Asylum Qualification Dim:ti~ 2011/95/ EU. Article 2(1) and Dublin 111 Regulation (EU) No 604/2013, Article 2(j). 51 UN High Commissioner for Refugees. Guidelines on Policies and Procedures in Dealing with Unaccompanied Children, p. I. 0

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7. Material reception conditions (g) Material reception conditions describe the social benefits granted to asylum seekers 21 that include housing. food and clothing. These can be provided either in kind, as financial allowances, in the form of vouchers, or in a combination of the three. The term is used as synonym for the full set of social benefits an asylum seeker is entitled to under the Directive.

8. Detention (h) An applicant is held in 'detention' if she is confined within a particular place where she is deprived of her freedom of movement. The recast contains detailed rules regulating permissible detention grounds, rights of detained applicants, detention conditions and the specific case of detention of vulnerable applicants (Articles 8-11 ). Article 10(1) establishes that detention should take place as a rule in specialised detention facilities; however, it recognises that Member States might have to resort to the use of prison facilities. The definition is however broadly phrased as it contains the term 'within a particular place', rather than limiting the definition to (specialised) detention facilities. Thus, the protective provisions of the Directive on detained asylum seekers apply even in other places where they might be deprived of their liberty, such as airport transit zones. In FMS. the ECJ endorsed such a broad understanding holding that detention 'is an autonomous concept of EU law understood as any coercive measure that deprives that applicant of his or her freedom of movement and isolates him or her from the rest of the population, by requiring him or her to remain permanently within a restricted and closed perimeter'. 52 Consequently, the Court characterised the regime in the Hungarian transit zones of Roszke and Tompa as detention. 53 This also reflects the extended scope ratione loci of the recast which explicitly covers applications made •... on the territory, including at the border, in the territorial waters or in the transit zones of a Member State' (see Article 3( I). This understanding is strengthened by recital 8, stating that the Directive applies •... in all locations and facilities hosting applicants'. 54 It also echoes the case-law of the ECtHR which found that restrictions suffered by asylum seekers held in the transit zone of a Parisian airport amounted to deprivation ofliberty and therefore Article 5(1) ECHR was applicable. 55

22

23

24

25

9. Accommodation centre (i) This definition includes state-run fadllties as well as those managed privately. The 26 key element of accommodation centres is collective housing in contrast to individual forms of accommodation foreseen under Article 18(l)(c). It is important to distinguish bet~een accommodation centres and preliminary forms of collective housing for applicants at the border or in transit zones mentioned in Article l8(l)(a) for which a separate definition is lacking. As accommodation centres often serve as the centre of the

si ECJ, FMS. C-924/19 PPU and C-925/19 PPU, EU:C:2020:367, para 223. B See Ibid., paras 229-230. See also ECJ, Commission v. Hungary, C-808/18, EU:C:2020:1029, paras 157-166. ,. Emphasis added. ss ECtHR, Judgment of 25 June 1996, No 17/1995/523/609, Amuur v. France. See also ECtHR, Judgment of 24 January 2008, Nos 29787/03 and 29810/03. Riad and ldiab v. Belgium and Grabcnwarttr, ECHR Commentary, p. 65.

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Art. 3

Asylum Reception Conditions Directive 2013/33/EU

applicants' private life throughout the asylum procedure, they must ensure an adequate standard ofliving (see Article 18(l)(b)). 10. Representative (j)

27

The Directive foresees that either private individuals or organisations could act as representatives of unaccompanied minors. However, in the case of the appointment of an organisation, an individual must be designated by that organisation as responsible for carrying out the duties of representative. The function of the representative is to ensure the best interests of the child and to exercise legal capacity for the minor where necessary. The Directive contains a series of guarantees regarding the role and quality of the representative (see below Article 24(1) MN 3--4). 11. Applicant with special reception needs (k)

28

Applicants with special reception needs are a sub-category of vulnerable applicants. These are therefore applicants who are vulnerable and who, in addition, are in need of special guarantees in order to benefit from the rights and comply with the obligations provided for in the Directive. This notion should be distinguished &om the notion of an applicant with 'special procedural guarantees' that is contained in Article 2(d) Asylum Procedures Directive 2013/32/EU. A vulnerable applicant may have special procedural needs and/or special reception needs.

Article 3 Scope 1. This Directive shall apply to all third-country nationals and stateless persons

who make an application for international protection on the territory, including at the border, in the territorial waters or in the transit zones of a Member State, as long as they are allowed to remain on the territory as applicants. as well as to family memben, if they are covered by such application for international protection according to national law. 2. This Directive shall not apply in cases of requests for diplomatic or territorial asylum submitted to representations of Member States. 3. This Directive shall not apply when the provisions of Council Directive 2001/ 55/EC of 20 July 2001 on minimum standards for giving temporary protection in the event of a mass influx of displaced persons and on measures promoting a balance of efforts between Member States in receiving such persons and bearing the consequences thereof17l are applied. 4. Member States may decide to apply this Directive in connection with procedW"es for deciding on applications for kinds of protection other than that emanating from Directive 2011/95/EU. Content

I. General remarks and drafting history........................................................ ll. Personal, geographical and temporal scope (Article 3(1 )) .................... I. Third-country nationals/stateless persons............................................ 2. Family members.......................................................................................... 3. Application for international protection............................................... 4. Allowed stay.................................................................................................

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Art. 3

Chp. 22

Ill. Asylum requests to representations (Article 3(2)) .................................. Temporary protection (Article 3(3)) ..........................................................

12 IS

V. Divergence clause ...................................... ·-···················································

16

rv.

I. General remarks and drafting history This article defines the personal and geographical scope of application of the 1 Directive. It also regulates its relationship with other instruments, namely the Temporary Protection Directive 2001/55/EC and the Dublin III Regulation (EU) No 604/2013, as well as with national law establishing forms of protection other than those included in the Asylum Qualification Directive 2011/95/EU. The scope of application of the former Asylum Reception Directive 2003/9/EC had 2 been discussed intensively and it had been difflcult to reach consensus among the Member States. 56 A temporal limitation was introduced, which stipulated that the applicability of the former Asylum Reception Conditions Directive 2003/9/EC ends when an asylum seeker is no longer allowed to remain on a Member State's territory. Moreover, the applicability of the former Asylum Reception Conditions Directive 2003/ 9/EC to family members had been made subject to the condition that these family members are covered by the asylum application submitted by the asylum seeker. 57 These limitations survived in the text of the present Directive. The personal scope of the Directive has been mended in relation to the former 3 Asylum Reception Conditions Directive 2003/9/EC. 58 The text of the Directive also explicitly clarifies its personal and geographical applicability in contentious points. Namely, at least 7 Member States contested the applicability of former Asylum Reception Conditions Directive 2003/9/EC in detention centres. 59 In addition, a number of Member States contested its applicability to applicants subject to 'Dublin procedures'.6()

II. Personal, geographical and temporal scope (Article 3( 1)) The Directive applies only if three a,nditiom are met. Firstly, the individual con- 4 cerned needs to be a third-country national or a stateless person. Secondly, she must have submitted an application for international protection as defined in Article 2(a) on the territory, including at the border, in the territorial waters or in the transit zones of a Member State. Finally, the Directive only applies as long as the person concerned is allowed to remain on the Member State's territory as applicant.

I. Third-country nationals/stateless persons Third-country nationals are nationals of states other than EU Member States.61

S

50 See Handoll, in Dias Urbano de Sousa/De Bruycker (eds), The Emergence of a European Asylum Policy, p. 141. s; See Council doc. 5444/02 of 22 January 2002, p. 5 and doc. 6467/02 of 22 February 2002, p. 6. SIi See former Asylum Reception Conditions Directive 2003/9/EC, Article 3. so See Commission Rrpon, COM(2007) 745, p. 3 and De Bruycker, Odysseus Synthesis Repon on Directive 2003/9, p. 9. ""See ECJ, Cimade and GISTI, C-179/11, EU:C:2012:594. • 1 EU nationals are generally exempt from the CEAS as all Member States are considered as safe countries of origin in respect of each other for all legal and practical purposes in relation to asylum matters; see Protocol No. 29 TEC (OJ 2006 C 321 E/306).

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3

Asylum Reception Conditions Directive 2013/33/EU

2. Family members 6

The Directive applies to family members of asylum seekers only 'if they are_ covered by such application for asylum according to the national law'. Hence, it is up to each Member State to determine whether family members must apply separately for asylum or if they are covered by the demand of the initial applicant. Articles 7 and 11(3) Asylum Procedures Directive 2013/32/EU contain rules on applications for international protection made on behalf of dependents or minors. 3. Application for international protection

The application for international protection is to be understood as defined in Article 2(a) of the Directive. The personal scope was explicitly broadened to cover applications for subsidiary protection. Such an application must be submitted 'on the territory, including at the border, in the territorial waters or in the transit zones of a Member State'.62 Article 3(1) former Asylum Reception Conditions Directive 2003/9/EC had defined the geographical scope as follows: 'at the border or in the territory of a Member State'.63 8 The border, territorial waters or transit zones of a Member State are an integral part of a Member State's territory. In addition, recital 8 further states that it applies ' ... in all locations and facilities hosting applicants'. Coupled with the fact that grounds for deprivation of liberty, rights of detained asylum seekers and detention conditions are regulated in detail in Article 8-11, this formulation leaves no scope for contestation regarding the applicability of the Directive in detention centres and other spaces where asylum seekers are deprived of their liberty. 7

4. Allowed stay An asylum seeker falls within the scope of the Directive as long as he or she is allowed to remain on the territory of a Member State as applicant. Article 9( l) Asylum Procedures Directive 2013/32/EU, firstly, stipulates that an applicant has a right to remain until the determining authority has made a decision at first instance. 64 However, Member States may make some exceptions.65 10 According to Article 46 Asylum Procedures Directive 2013/32/EU, applicants for international protection are also allowed to remain 'until the time limit within which to exercise their right to an effective remedy has expired and, when such a right has been exercised within the time limit, pending the outcome of the remedy'. Therefore, in principle, appeals are suspensive. However, in exhaustively defined circumstances (Article 46(6) Asylum Procedures Directive 2013/32/EU),66 such as, for example, appeals against applications that have been found to be manifestly unfounded, Member States may decide not to grant automatic suspensive effect to the appeals. In such cases, a national judicial instance should decide, either ex officio or upon the applicant's 9

Emphasis added. Emphasis added. 64 The recast directive clarifies that the 'right to remain shall not constitute an entitlement to a residence permit'. 65 See Asylum Procedures Directive 2013/32/EU, Article 9(2). See also Asylum Procedures Directive 2013/32/EU, Article 9(3) which safeguards the non-refoulement principle in case of extradition to third countries. For further details on the exceptions from the right to remain in case of subsequent applications sec Asylum Procedures Directive 2013/32/EU, Article 41. 66 See also Asylum Procedures Directive 2013/32/EU, Article 46(7) for the special rules that apply in the case of border procedures. 62

61

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request, whether the appeal will have suspensive effect. Member States should allow the applicant to remain in their territory until the national judicial instance has decided on the suspension. Thereafter, the applicant's right to remain will depend upon the pronouncement of the national judicial instance. A contrario, this formulation entails that the applicability of the Directive terminates 11 when the person concerned is no longer allowed to remain. Namely, the Directive uses the term 'as long as they are allowed to remain as applicants' and not the terms 'as long as they are applicants' or 'as long as they remain'. Therefore, the Directive contemplates the case than an individual is still an applicant for international protection67 but is no longer covered by it.

III. Asylum requests to representations (Article 3(2)) The second paragraph that excludes the Directive's applicability in cases of requests 12 for diplomatic or territorial asylum submitted on representations of Member States has an impact in the so-called 'protected entry procedure' initiatives that could be activated. Concretely, it means that although the general human rights framework and the obligations under the Geneva Convention would apply in such cases, the provisions of the Directive would not. There is currently no harmonised definition of the notion of 'Protected Entry 13 Procedures' at EU level but they could include requests submitted on representations of Member States.68 Protected entry procedures differ from refugee resettlement69 and humanitarian 14 admission;'° individuals who approach the state authorities abroad initiate the process. Some Member States, such as Austria and Spain, had implemented different variations of such schemes but they have gradually been abolished. 71

IV. Temporary protection (Article 3(3)) The Directive does not apply in case of activation of the Temporary Protection 15 Directive 2001/55/EC. As the latter provides for separate rules on rights and benefits, such as access to employment, education etc. which are also covered by the Asylum Reception Conditions Directive 2013/33/EU, it is consequent to exclude persons under the temporary protection regime from the scope of the Directive.

67 Since Article 2(e) Asylwn Procedures Directive 2013/32/EU states that a final decision is one which is no longer subject to a remedy, irrespective of whether such remedy has the effect of allowing applicants to remain in the Member States concerned pending its outcome. 68 For a definition see Noll/Fagerlund/Llebaut, On the Feasibility of Processing Asylwn Claims outside the EU, p. 20. 69 For UNHCR's understanding see UNHCR, Resettlement Handbook, rn'ised edn, July 2011, at p. 3. For an EU understanding see Regulation (EU) No 516/2014 establishing the Asylum, Migration and Integration Fund (OJ L 150/168), Anicle 2(a). "'For a definition see Regulation (EU) No 516/2014 establishing the Asylum, Migration and lntegra• lion Fund (OJ L 150/168), Anicle 2(b). See also UNHCR, Resettlement, Hwnanitarian Admission, and Other Forms of Admission for Syrian Refugees: 2013/2014 Pledges (2014) and ECRFJELENA, Information Note on Syrian Asylum Seekers and Refugees in Europe (2013). 71 See Hein/De Donato, Exploring avenues for protected entry in Europe (2012), available at: http:/1 www.ecre.org,'component/downloads/downloads/468.hUnl [last accessed: 14 July 2015).

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Art. 4

Asylum Reception Conditions Directive 2013/33/EU

V. Divergence clause 16

Member States are also encouraged, but not obliged, to apply the provisions of the recast directive when deciding upon applications for reasons other than those covered by the Asylum Qualification Directive 2011/95/EU, therefore applications for non-harmonised humanitarian permits (recital 29).

Article 4 More favourable provisions Member States may introduce or retain more favourable provisions in the field of reception conditions for applicants and other close relatives of the applicant who are present in the same Member State when they are dependent on him or her, or for humanitarian reasons, insofar as these provisions are compatible with this Directive. Content

I. General remarks and drafting history........................................................ II. Diverging national legislation ...................................................................... I. More favourable provisions...................................................................... 2. Compatibility with the Directive.............................................................

mn. I 3 3 4

I. General remarks and drafting history The 'more favourable provisions' clause was included in the former Asylum Reception Conditions Directive 2003/9/EC.72 By giving the Member States the freedom to introduce or retain more favourable provisions than foreseen in the former Asylum Reception Conditions Directive 2003/9/EC, that provision made it clear that the concept of minimum standards needs to be understood in a qualitative sense. 73 The concept of minimum standards did not imply a self-restriction of the European legislator in terms of a foreclosure of less important parts of the reception system but the establishment of a general qualitative bottom line that should not be undercut by the national systems of reception conditions. 74 2 The Directive no longer uses the term 'minimum standards'; however the possibility for the Member States to adopt more favourable provisions has been retained. Maintaining this clause could be interpreted as a signal that the legislative harmonisation process in this policy area has not been completed and that the co-legislators did not want to exclude further round(s) of harmonisation. Moreover, it might be assumed that the co-legislators wanted to avoid that the Directive would give rise to a lowering of standards in certain Member States, even though a standstill clause is not part of the Directive. In any case, it has been observed that any restraint which might be set in EU law through secondary legislation on Member States' powers to set higher standards regarding asylum could not breach the human rights obligations of the EU, as enshrined in primary EU law. 75 l

72

See former Asylum Reception Conditions Directivi: 2003/9/EC. Article 4. See also former Asylum Reception Conditions Directive 2003/9/EC, Recital 15. 74 See Baldaccini, Asylum Support A practitioner's guidt to the EU Reception Directive (Justice, 2005), p. 29. 71 Peers, EU Justice and Home Affairs Law, p. 309. 7l

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II. Diverging national legislation l. More favourable provisions

More favourable provisions need to enhance the standards contained in the Direc- 3 live and grant more comprehensive rights. This becomes clear from both the context of the Directive and the text of the specific provision. According to the Directive, the more favourable provisions should be directed to 'applicants and other close relatives of the applicant who are present in the Member State',76 for the reason that the latter are dependent on her or for humanitarian reasons. 2. Compatibility with the Directive

It is debatable under which conditions more favourable provisions in Member States 4 are incompatible with the Directive. Concerning the former Asylum Reception Conditions Directive 2003/9/EC, some authors had argued that against the background of that Directive's task to reduce incentives for secondary migration,n more favourable provisions as such may run counter to the project of harmonised living conditions for asylum seekers and their families in the Member States. 78 However, to such an opinion it could be opposed that it was obviously not the aim of the Council to reduce given standards in Member States but rather to install a common bottom line. 79 Concerning the present Directive, as explained above, despite the fact that it goes beyond the establishment of minimum standards, it also does not go as far as totally harmonising the system of reception conditions. More favourable provisions may therefore only be regarded as contrary to the 5 Directive if the Directive explicitly limits asylum seekers rights and leaves the Member States no margin for more favourable provisions. Such strict limitations are however rare. One such example could be the explicit prohibition in Article 3(2) to extend the Directive's scope of application to requests for diplomatic or territorial asylum submitted to representations of Member States.

CHAPTER II PROVISIONS ON RECEPTION CONDITIONS

Article 5 Information 1. Member States shall inform applicants, within a reasonable time not exceeding 15 days after they have lodged their application for international protection, of at least· any established benefits and of the obligations with which they must comply relating to reception conditions. ·• See also former Asylum Reception Conditions Directive 2003/9/EC, Recital 28 . .,., See former Asylum Reception Conditions Directive 2003/9/EC, Recital 8 and Meyer, Mindestaufnahmebedingungen fur Asylbewerber, p. 551. •• Battjes, European Asylum Law and International Law (Maninus Nijhoff, 2006), p. 506. .,., See Handoll, in Dias Urbano de Sousa/De Bruycker (eds), The Emergence of a European Asylum

Policy, p. 143, who emphasises that 'the base is not uniformly low' and adds that 'the "lowest common denominator" argument may be misplaced (in the sense that some Member States will have to improve their systems) and the Member States may treat the Directive as a stepping stone to incremental improving of reception conditions'.

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Asylum Reception Conditions Directive 2013/33/EU

Art. 5

Member States shall ensure that applicants are provided with information on organisations or groups of persons that provide specific legal assistance and organisations that might be able to help or inform them concerning the available reception conditions, including health care. 2. Member States shall ensure that the information referred to in paragraph I is in writing and, in a language that the applicant understands or is reasonably supposed to understand. Where appropriate, this information may also be supplied orally. Content I. General remarks and drafting history........................................................ II. Member State obligations.............................................................................. I. Deadline of fifteen days............................................................................. 2. Information on benefits and obligations............................................... 3. Information on organisations and groups............................................ 4. Written and oral information..................................................................

mn. I 5 5 6 10 11

I. General remarks and drafting history Article 5 grants asylum seekers an individual right to receive information on their present situation within a deadline of maximum fifteen days. This right to be informed may be considered as a prerequisite for applicants for asylum to access all other individual rights granted by the Directive. 80 2 Article 5 underlines the role of non-governmental organisations and private actors in the CEAS. Member States' obligation to provide information specifically on organisations or groups of persons that provide legal assistance is strengthened by recital 21. 3 The obligation to inform was drafted more extensively in the initial Commission proposal for the former Asylum Reception Conditions Directive 2003/9/EC. It included the obligation to inform accompanying adult family members of the right to make a separate application for asylum as well as the obligation to inform all asylum seekers of language courses and voluntary return schemes available to them. 81 Moreover, the information was to be delivered immediately after the asylum seeker had lodged his application. 82 4 Article 5 was subsequently only subject to minor modifications in the Commission Proposals of 2008 and 201 I, none of which included the elements that formed part of the initial Commission proposal for the former Asylum Reception Conditions Directive 2003/9/EC. The obligation to provide information in different languages was however drafted in a clearer way. 83 I

II. Member State obligations I. Deadline of fifteen days

5

The required information must be delivered within fifteen days after an asylum seeker has lodged her application with the competent authority. The period of fifteen "'See also Commission Proposal, COM(2001) 181. p. 10. Commission Proposal, COM(2001) 181. Article 5(2) and (4). • 2 Commission Proposal, COM(2001) 181, Anicle 5(1). 83 See Commission Proposal, COM(2008) 815 final, Anicle 5(2) and Commission Amended Proposal, COM(2011) 320, Article 5(2). 81

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days thus begins to run when the asylum seeker expresses her request for international protection. The relatively generous time limit for Member States has been criticized as being too long. leaving the asylum seeker in a state of uncertainty for two weeks. 84 However, it must be stressed that the deadline of fifteen days describes the mui.mum period of time within which the information must be delivered. As information must be delivered within reasonable time, the fifteen days period must thus not be exhausted if ii is not required by the circumstances. From the drafting history it becomes clear, that information must be delivered as fast as it may reasonably be expected under the circumstances of the application. 2. Information on benefits and obligations The information to asylum seekers should be as comprehmsive as possible and provide them with the necessary knowledge on their legal situation during the asylum procedure. It should enable them to avail themselves of their rights under the Directive.85 In any case, it needs to include information on the basic benefits as housing and financial allowances or vouchers that are granted at national level. Moreover, their rights with regard to access to education, employment and health care should be explained. Unlike the term 'material reception conditions', the term 'benefits' is not defined in the directive as being limited to housing, food, clothing and financial allowances (see Article 2(g)). It appears rather contradictory to inform the applicants about their obligations with regard to reception conditions as a whole but to limit information on their rights to the material reception conditions. Some benefits, in particular in the field of specialised medical and psychological treatment, are not available to all asylum seekers but only to those with corresponding special reception needs. The availability of such services needs to be communicated, however, to all asylum seeken. Information on benefits that enable the asylum seeker to substantiate his claim, for example access to translation services. is important. The obligation to provide such information does not follow, however, directly from Article 5 but from the Asylum Procedures Directive 2013/32/EU. 86 Nevertheless, it seems preferable to provide information on benefits in the context of reception and on procedural guarantees on the same occasion. It is hard to distinguish between the two, as Article 5 of the Directive also requires Member States to provide information on organisations and groups that provide specific legal assistance. The obligation to inform the asylum seeker about her obligations during the asylum procedure is part of the principle of a fair procedure. Infringements may only be sanctioned if the asylum seeker has been duly informed about her or his duties and the consequences of such infringements. The most important obligations are the obligation to cooperate with the authorities, restrictions to free movement and obligations relative to internal rules of the accommodation facilities.

6

7

8

9

3. Information on organisations and groups Services provided by non-governmental organisations and groups of persons, as well as 10 by governmental organisations other than the asylum authorities. are not part of the &< See Handoll, in Baldacdni/Guildffoner (eds), Whose Freedom, Security and Justice, p. 210 and ECRE. Information Note on the Council Directive 2003/9/EC. p. 4-5. 81 Commission Repon, COM(2007) 745, p. 4. 06 See Asylum Procedures Directive 2013/32/EU, Article 12(b). See Baldaccini, Asylum Support. A practitioner's guide to the EU Reception Dirtctive (Justice, 2005), p. 40, who seems to suggest that both information obligations stem from article 5 of the former Asylum Reception Conditions Directive 2003/9/EC.

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Asylum Reception Conditions Directive 2013/33/EU

Art. 6

reception conditions in a strict sense, however access to these organisations and groups of persons is. Asylum seekers should be enabled to effectively benefit from the opportunity to receive assistance and counaelling during the asylum procedure. It is therefore necessary to actively inform asylum seekers, who are usually not familiar with the services available, about their opportunities and about ways to contact relevant organisations. 4. Written and oral information

As a rule, all information should be provided in writing and in a language the applicant understands. However, for different reasons it is not always possible to fulfil this requirement. One obstacle is the multitude of spoken languages and dialects, while another is the potential illiteracy of asylum seekers. Article 5 does not unequivocally require Member States to translate their information leaflets in every imaginable language but rather to provide information 'in a language that the applicant understands or is reasonably supposed to understand'. 87 This formulation is clearer compared to the one contained in the former Asylum Reception Conditions Directive 2003/9/EC which required this only 'as far as possible' and 'in a language that the applicants may reasonably be supposed to understand'. 88 12 However, the reservation persists that it is considered sufficient, if information is provided in a language that the applicant is reasonably supposed to understand. Such an expectation may be considered reasonable if the asylum seeker is from a multilingual country where one language serves as lingua franca and does not belong to a minority that is oppressed for reasons of cultural diversity. The common practice to provide information orally through an interpreter where there is no written leaflet in a language understood by the asylum seeker'9 leads in reality to very low levels of information. 90 13 Article 5 also foresees the possibility to provide the information orally 'where appropriate'. This is the case where the asylum seeker is unable to understand the information in writing. The wording leaves open whether the oral information replaces the information in writing or whether it should be given in addition. However, written information is always useful, as it may facilitate individuals' communication with groups of persons and organisations assisting them. It must therefore be concluded that the information is in either case to be provided in writing and could only be supplemented orally.

11

Artide6 Documentation I. Member States shall ensure that, within three days of the lodging of an application for international protection, the applicant is provided with a document issued in his or her own name certifying his or her status as an applicant or testifying that he or she is allowed to stay on the territory of the Member State while his or her application is pending or being examined. If the holder is not &ee to move within all or a part of the territory of the Member State, the document shall also certify that fact. Emphasis added. Sec former Asylwn Reception Conditions Directive 2003/9/EC, Article 5(2). 89 De Bruycker, Odysseus Synthesis Repon on Directive 2003/9, p. 39. "' ECRE, Comments on the recast European Commission Proposal, p. 5; UNHCR. Comments on the amended recast European Commission Proposal, p. 5 as well as European Parliament Legislative Resolution, 2008/0244(COD), para 16E. 11 111

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2. Member States may exclude application of this Article when the applicant is in detention and during the examination of an application for international protection made at the border or within the context of a procedure to decide on the right of the applicant to enter the territory of a Member State. In specific cases, during the examination of an application for international protection, Member States may provide applicants with other evidence equivalent to the document referred to in paragraph l. 3. The document referred to in paragraph l need not certify the identity of the applicant. 4. Member States shall adopt the n«essary measures to provide applicants with the document referred to in paragraph I, which must be valid for as long as they are authorised to remain on the territory of the Member State concerned. 5. Member States may provide applicants with a travd document when serious humanitarian reasons arise that require their presence in another State. 6. Member States shall not impose unnecessary or disproportionate documentation or other administrative requirements on applicants before granting them the rights to which they are entitled under this Directive for the sole reason that they are applicants for international protection. Content

I. II. III. IV. V. VI. Vil.

mn. General remarks and drafting history........................................................ 1 Time limit of three days................................................................................ 2 Content of the docwnent.............................................................................. 4 Specific cases in which no document must be issued............................ 7 Validity of the docwnent .............................................................................. 10 Travel docwnents............................................................................................ 12 Other administrative requirements............................................................. 15

I. General remarks and drafting history Asylum seekers are not holders of a residence permit during the asylum procedure. 1 They enjoy, however, the right to remain in the territory of the Member State concerned pending the examination of their application. 91 Even though asylum seekers' right to remain is provisional, there is a practical need to have their status documented.

II. Time limit of three days Compared with the fifteen day time limit set in Article 5 for providing information to 2 the asylum seeker, the time limit of three days for issuing the document under Article 6 appears relatively strict. The fact that the time limits have been modified in two different ways shows the variable importance of the two obligations. The short time limit is almost equivalent to an obligation for immediate act.ion. The 3 Member States are required to gather the necessary information to issue the document as soon as possible after the person concerned has lodged her application in order to comply with the deadline. 92 "' Sec Asylum Procedures Directive 2013/32/EU, Article 9 and infra commentary on Article 2(b). •2

In many cases Member States seem not to comply with the time limit, see Commission Repon, COM

(2007) 745, p. 4.

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Ill. Content of the document The document needs to be issued in the asylum seeker's name. If the asylum seeker does not possess an identity document, the name that has been submitted in the asylum application is presumed to be the asylum seeker's name. A photo or any other identifying feature is, however, not required since the document is not necessarily valid as an identification document (Article 3(3)). In some Member States the document nevertheless has this function, such as for example in Germany and the UK. If the document does not serve as proof of identity, asylum seekers may face problems in their daily life if they do not have an alternative proof of identity, particularly ii) what concerns accessing services outside the scope of this Directive, such as banks.93 5 The document should demonstrate the holder's status as asylum seeker in the issuing Member State, which entitles him to certain benefits under the Directive. Moreover, it is proof that the holder is entitled to remain in the territory and must not be deported, therefore also a protection against refoulement. The documentation certifies any applicable restrictions of movement; this is meant to facilitate the enforcement of such restrictions. Additional information on the individual asylum seeker's rights or needs is not required to be included in the document. Member States are, however, not hindered to include such additional details.94 6 There are no common requirements as regards the form of the document. Consequently, documentation takes different forms in the various Member States.95

4

IV. Specific cases in which no document must be issued Member States are not obliged to issue documentation to persons who are detained or for applications made at the border or subject to a specific procedure to determine the right of applicants to enter a Member State's territory. Keeping in mind the objectives of the documentation which are to guarantee the asylum seeker's access to her rights under the Directive and to protect her from deportation, the provision targets cases in which such a guarantee appears to be less important as the asylum seeker is under close surveillance and severely restricted in her freedom of movement. 8 Detention is to be understood in accordance with Article 2(h). Applications made 'at the border or within the context of a procedure to decide on the right of the applicant to enter the territory of a Member State' are logically linked with border procedures as defined by the Asylum Procedures Directive 2013/32/EU. If the asylum seeker is admitted to the territory, the necessary document is to be issued immediately. The time limit of three days is no longer applicable as it has already expired. The same applies when the applicant is released from detention. 9 Finally, Article 6(2) stipulates that Member States may issue other evidence of the applicants' status equivalent to the document mentioned under Article 6( 1). The purpose of this clause is, however, unclear. From a systematic perspective, it could be assumed that this clause applies only to the cases under paragraph 2, where no

7

91 Commission Report, COM(2007) 745, 4; Brekke/Vevstad, Reception Conditions for Asylum Seekers. p. 38; ECRE, Information Note on the Council Directive 2003/9/EC, p. 4. "' Stt UNHCR's proposal on such an amendment of Germany's Asylwn Procedures Act, in: Stellungnahme des UNHCR zur Umsetzung der EU-Richtlinie iiber die Aufnahmebedingungen fur Asylbewerber, p. 4. Stt also UNHCR. Annotated Comments on Directive 2003/9/EC, Anide 6. • 5 Commission Report, COM(2007) 745, p. 4.

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obligation to issue the regular document exists. However, as there is no reason to issue such equivalent evidence, the clause is to be understood as a general exemption from the obligation imposed by paragraph l. Hence, we conclude that the actual document may be replaced by equivalent evidence in 'specific cases'. The exemption is not worded very precisely and leaves room for interpretation as to its scope. If Member States decide to issue a document that does not contain any information but the minimum required by the Directive, it is hardly comprehensible why this basic document should be replaced by another means of evidence bearing exactly the same information. However, if Member States decide to produce a document that serves as proof of identity and contains information on the specific needs of the individual person, it will be hard for them to comply with the time limit of three days. 96 This clause therefore authorises them to issue a provisional certificate that contains minimum information until the more comprehensive document is produced.

V. Validity of the document The possibility of renewal of the document is not mentioned in Article 6. It is 10 however required that the document is valid as long as the asylum seeker is authorised to remain in a Member State's territory. As the duration of the procedure is not predictable, it must be considered as admissible to foresee the possibility of renewal under national law if it does not imply any burden for the asylum seeker. Some Member States chose another approach by issuing documents of undeter- 11 mined validity up to the final decision on the applicant's asylum claim. Both alternatives seem to be considered as being in line with the Directive by the Commission.97

VI. Travel documents Generally speaking. asylum seekers are not allowed to leave the host state while their 12 application for international protection is being examined. However, paragraph 5 allows Member States to issue travel documents to asylum seekers in exceptional cases. This provision needs to be understood as a general possibility to allow asylum seekers to travel abroad, irrespective of whether they are issued a special travel document for this purpose or whether they dispose of a passport of their country of origin which may serve as a travel document. The possibility to travel abroad is, however, limited to situations in which 'serious 13 humanitarian reasons arise that require their presence in another state·. Being an exceptional provision, the clause is to be interpreted restrictively. Serious humanitarian reasons could include for example the funeral of a close relative, or more broadly situations that are apt to create extreme hardship if travel were not permitted. Travelling to the country of origin where the asylum seeker claims to be subject to persecution is generally excluded. As the Directive gives Member States discretion to decide on the issue of travel 14 documents, there is no obligation to issue such documents or to authorise any travelling abroad. It is nevertheless a moot point whether the Directive requires Member States to create at least a legal basis for issuing such travel documents under their national law. When comparing the wording of this provision with other provisions in ""Stt BrekkeNevstad. Reception Conditions for Asylum Sttkers, p. 38. 97 Commission Report, COM(2007) 745, p. 4.

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the Directive granting Member States discretion in individual cases, it becomes obvious this provision does not create such obligation. For example, Article 7(4) reads '[t]he Member States shall provide for the possibility of granting'. 911 This wording makes it clear that Member States have to transpose this provision into national law. Article 6(5) does not contain any equivalent order to the national legislator and may therefore be regarded as purely optional.

VII. Other administrative requirements 15

The Article establishes an additional guarantee for asylum seekers, namely that Member States should not impose unnecessary or disproportionate documentation or other administrative requirements on applicants, so as to have access to the rights they are entitled to, for the sole reason that they are applicants for international protection. The 2011 Commission Amended Proposal went a step further as it prohibited Member States entirely from imposing such requirements. 99 This formulation was not retained and therefore such requirements are permissible, however only if they are necessary and proportionate. This wording therefore calls for a restrictive interpretation of this possibility for Member States.

Article 7 Residence and freedom of movement I. Applicants may move freely within the territory of the host Member State or within an area assigned to them by that Member State. The assigned area shall not affect the unalienable sphere of private life and shall allow sufficient scope for guaranteeing access to all benefits under this Directive. 2. Member Stales may decide on the residence of the applicant for reasons of public interest, public order or, when necessary, for the swift processing and effective monitoring of bis or her application for international protection. 3. Member States may make provision of the material reception conditions subject to actual residence by the applicants in a specific place, to be determined by the Member States. Such a decision, which may be of a general nature, shall be taken individually and established by national law. 4. Member States shall provide for the possibility of granting applicants temporary permission to leave the place of residence mentioned in pangraphs 2 and 3 and/ or the assigned area mentioned in paragraph I. Decisions shall be taken individually, objectively and impartially and reasons shall be given if they are negative. The applicant shall not require permission to keep appointments with authorities and courts if his or her appearance is necessary. 5. Member States shall require applicants to inform the competent authorities of their current address and notify any change of address to such authorities as soon as possible.

•• Emphasis added . ... See Commission Amended Proposal, COM(201 I) 320, Article 6(6).

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Content mo. I. General remarks·········································-··················································· II. Drafting history···················-·······························-········································· III. Principle of free movement and its restrictions....................................... I. Principle of free movement...................................................................... 2. Decision on residence................................................................................ 3. Material reception conditions and actual residence........................... 4. Leaving the place of residence/the assigned area................................

l 4 8 8 14 16 18

5. Change of address ···············-······-········-··············-··································· 22

I. General remarks Article 7 regulates two issues which are closely interlinked but not identical; firstly, the 1 right to freedom of movement and the circumstances under which this right may be restricted and secondly the applicants' place of residence. Whereas the first issue is about the area within which applicants may move freely, residence refers to the place where the applicant actually has his address and household. An asylum seeker may be designated to take resi~nce in a particular place without restricting her freedom of movement. Vice versa, assigning a particular area within which the asylum seeker is allowed to move freely leaves her with the freedom to choose a place of residence within this assigned area. Both concepts are not, however, conceptually strictly divided in Article 7. 100 It is important to stress that this provision does not concern detention, thus applicants 2 should not be deprived of their liberty in the specified region or at the designated residence. According to the ECtHR. in order to determine whether someone has been 'deprived of his liberty' within the meaning of Article 5( l) ECHR, the starting point must be his concrete situation and account must be taken of criteria such as the type, duration, effects and manner of implementation of the measure in question. 161 The difference between deprivation of and restriction on liberty is one of degree or intensity, and not of kind. 162 The assessment will be case-specific; a deprivation of liberty may be established not by any one factor taken individually but by examining all elements cumulatively. 103 Where applicants are deprived of their liberty, Articles 8-11 are applicable. The right to freedom of movement represents the conceptual starting point of 3 Article 7 of the Directive. The limitations described by the Directive, are permissible to the extent that they are compatible with the Geneva Convention, international and European human rights law.

11. Drafting history Article 7 of the former Asylum Reception Conditions Directive 2003/9/EC was 4 controvawially discussed during the drafting process of that instrument. 104 A number '"' Meyer, Mindestaufnahmebedingungen fiir Allylbewerber, p. 549. EQHR, Judgment of 12 March 2012,, Nos 39692/09, 40713/09 and 41008/09, J\wstin and othm v. the United Kingdom, para 57. 102 Ibid.; see also ECtHR, Judgment of 6 November 1980, No 7367/76; Guzzardi v. Italy, paras 92-93; ECtHR. Judgment of 29 March 2010, :-.lo 3394/03, Medvtdyev and others v. France, para 73. '°·' FRA and Council of Europe, Handbook on European Law relating to asylum, borders and immigration (2013), p. 138. See for the diverging positions on the initial draft: Council doc. I 1320/01 of 11 April 2001, p. 14 et seq. 101

'°'

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of amendments could be contributed to the influence of the German government, which was eager to streamline Article 7 with the equivalent provisions in its national law. 105 These national provisions stipulated strict residence requirements combined with a general restriction of free movement to a particular district. 1116 S The wording of this provision in the former Asylum Reception Directive 2003/9/EC had been criticised for giving Member States carte blanche for completely invalidating freedom of movement. 107 The criticism was specifically targeted to Article 7(3) of the former Asylum Reception Conditions Directive 2003/9/EC which stated that '(w]hen it proves necessary, for example for legal reasons or reasons of public order, Member States may confine an applicant to a particular place in accordance with their national law'. 6 The present Directive revisited this approach by, on the one hand, deleting this controversial paragraph. In addition, a series of articles regulating the grounds, conditions of detention and rights of detained applicants were adopted in the Directive as well as in the Asylum Procedures Directive 2013/32/EU and the Dublin III Regulation EU No 604/2013. 7 The 2016 recast Reception Conditions proposal, under negotiation at the time of writing. significantly enlarges the cases under which an asylum seeker might be assigned to a designated residence. 108 The aim is to restrict in this way secondary movements.

III. Principle of free movement and its restrictions 1. Principle of free movement

Although freedom of movement should in principle be granted within the whole territory of the host Member State, restrictions may be imposed without any clearly defined preconditions. •09 The host Member State may assign the asylum seeker to an area considerably smaller than the territory as a whole. However, an assigned area in a large Member State as France, Poland or Germany may still leave the applicant with a higher degree of free movement than she might enjoy if her application is examined by a small Member State like Malta or Luxembourg. There is no dear bottom line as regards the size of the assigned area. 110 This fact has raised concerns that Member States may restrict freedom of movement excessively. 111 9 It is interesting to examine the compatibility of this provision with the Geneva Convention. It has been observed that the practice of considering that asylum seekers are 'lawfully' present in the territory only after the examination of their claim (and the subsequent grant of refugee status) is neither supported by the travaux preparatoires of the Convention, 112 nor compatible with the spirit and logic of the former Asylum Procedures Directive 2005/85/EC which enounces the right to remain in the Member

8

••~ Council doc. 12839/01 of 15 November 2001, p. 7. 100 See Meyer, Mindestaufnahmebedingungen fur Asylbewerber, p. 549 with further background information on the negotiation process. io; Handoll, in Baldaccini/Guild/foner (eds), Whose Freedom, Security and Justice, p. 213; Boeles et.al., European Migration Law, p. 333. • 08 Commission Proposal, COM(2016) 465 final, Article 7(2). 109 Vincenzi, in Dias Urbano de Sousa/De Bruycker (ed,), The Emergence of a European Asylwn

Policy, p. 158. 11°

Handoll, in Baldaccini/Guild/Toner (eds), Whose Freedom, Security and Justice, p. 212.

ECRE. Proposals for Revision, p. 7 et seq. 111 Hathaway, The Rights of Refagen Under International Law (CUP, 2011 ), p. 175. 111

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State pending examination of the claim. 113 In particular, Member States according to the former Asylum Procedures Directive 2005/85/EC and the Asylum Procedures Directive 2013/32/EU have to accord asylum seekers the right to remain in the Member State pending the examination of the application. 114 The fact that both provisions clarify that the right to remain 'shall not constitute an entitlement to a residence permit', 115 does not necessarily mean that the stay has not been authorised. In fact, in the case of Suso Musa, the ECtHR noted that obligations under EU law, such as those contracted through the former Asylum Procedures Directive 2005/85/EC might be relevant and that this was an issue predicated on national law to be interpreted in each national context. 116 Moreover, the Return Directive 2008/109/EC explicitly states that asylum seekers cannot be considered as 'illegally staying' as long as their claim is pending at first instance, and the ECJ has affirmed this in Gnandi. 117 The only clear exception is contained in Article 43(2) Asylum Procedures Directive 10 2013/32/EU, about border procedures which states that:

'Member States shall ensure that a decision in the framework of the procedures provided for in paragraph l is taken within a reasonable time. When a decision has not been taken within four weeks, the applicant shall be granted entry to the territory of the Member State in order for his or her application to be processed in accordance with the other provisions of this Directive'. A contrario then, normally, entry to the territory is granted to all asylum seekers in order for the application to be processed. Only in the case of applications lodged at the border or in transit zones can entry be withheld, and then only for 4 weeks. Therefore, the fact that Article 7(1) provides considerable discretion to the Member II States to restrict the freedom of movement of asylum seekers and the national practices that result from its application, raise the question of its compatibility with Article 26 and 31(2) of the Geneva Convention. 118 The former only recognizes restrictions 'applicable to aliens generally in the same circumstances'. The latter permits such restrictions only when they are necessary, for example on security grounds. Currently, the only existing bottom line to restrictions of movement, that is however 12 rather blurred, exempts the 'unalienable sphere of private life' from being restricted and states that the assigned area 'shall allow sufficient scope for guaranteeing access to all benefits under this directive'. The guarantee of the unalienable sphere of private life does not really limit Member States' discretion as this sphere may be interpreted very narrowly, as long as it does not amount to deprivation of liberty. The guaranteed access to all benefits under this Directive appears to be more robust. Benefits are to be interpreted in a wide sense, comprising. not only material reception conditions, but all rights which are 11 ' McDonough, "Revisiting Germany's Residenzpflicht in Light of Modem EU Asylum law', Michigan Journal of International Law 30 (2009), p. 542 referring to Article 7(1) former Asylum Procedures Directive 2005/85/EC. 11 • See former Asylum Procedures Directive 2005/85/EC, Article 7(1), and Asylum Proa:dures Din:clive 2013/32/EU, Article 9(1 ). IIS Ibid. 116 ECtHR, Judgment of 23 July 2013, No 22414/93, SIISO Musa v. Malta, paras 94-99. Although in that case the Court could not come to a definitive conclusion because the national Courts and the government had a different interpretation as to the effects of their national law, the EQHR very dearly noted that if national provisions authorize stay pending the examination of an asylum claim it would be hard to consider the deprivation of liberty 'closely coMected to the purpose'. 111 ~um Directive 2008/115/EC (OJ 2008 L 348/98), Recital 9, and ECJ, Gnandi, C-181/16, EU: C:2018:465, para 40. 111 Man. 'Article 26', in: ZimmennaM (ed), The 1951 ConVffltion Relating to the Status of Refugtts and its 1967 Protocol: A Commentary (OUP, 2011), p. 1163-1164.

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granted in the framework of reception conditions including access to health care, education and work_l 19 A stricter interpretation, that understands benefits as being a synonym for 'material reception conditions', is not convincing as there is no need to guarantee access to material reception conditions. 'Access' implies an active behaviour of the asylum seeker, which is dearly not required as regards material reception conditions. However, access to health care, education and in particular labour market usually implies that the asylum seeker moves to another location; access therefore needs to be guaranteed. 13 An assigned area which guarantees access to all benefits under the Directive needs to be of a certain minimum size, which can, however, not be determined in square kilometres but depends on the infrastructure of the assigned area. In an urban environment a relatively small area will satisfy the minimum requirements of guaranteed access to all benefits, whereas a rural area needs to be considerably larger when assigned. The access must, at least under normal circumstances, be guaranteed within the assigned area. 120 It would establish a circumvention of the Directive to require the asylum seeker to apply for permission to leave the assigned area in order to get access lo all benefits under the Directive. 121

2. Decision on residence Member States may allocate asylum seekers to a certain place of residence. Arbitrary decisions are, however, excluded. Decisions on the place of residence of asylum seekers are common among the Member States. Especially, federalist states aim at achieving a balanced distribution of asylum seekers within their tenitory in order to fairly share the reception costs among the state entities. 122 As most asylum seekers are accommodated in special accommodation facilities as described in Article 18(1) and such facilities necessarily have limited capacities, a public interest for a certain system of allocation, needs to be acknowledged 15 It is, however, debatable whether a decision on residence is justified if an asylum seeker disposes of an alternative to public accommodation facilities, for example if he could live with relatives, friends or has sufficient financial means to afford private housing. The limited capacities of accommodation facilities may not justify a decision on residence in these cases and - exceptional circumstances left aside - it could also not be based on public order grounds. The swift processing and effective monitoring of the asylum application requires that the competent authorities are informed about the actual residence of the applicant It is, however, doubtful whether authorities also need to determine the place of that residence. Residence in a particular place may be necessary if the system of material reception conditions is based on benefits in kind as concerns food and clothing. However, even though such a system depends on collective housing, it does not necessarily justify a general allocation of all asylum seekers without the possibility of individual housing. Other, less restrictive means may equivalently ensure the functioning of the system. A national system that does not provide for exceptions in individual cases must, therefore, be considered as being contrary to the Directive. 123 14

119

UNHCR, Annotated Comments on Council Dinctive 2003/9/EC, UNHCR Refworld, ad Article 7.

120

Stt also UNHCR. Stellungnahme zur Umsetzung der EU-Richtlinie iiber die Aufnahmebedingun-

gen filr Asylbewerber, p. 4. 121 This seems 10 be, however, the position of the German government, see Bundesregierung (federal government) in a statement of 26 May 2008 upon request (Kleine Anfrage) of MPs Winkler et al., Bundestagsdrucksche (Parliamentary Document) 16/9273, p. 4. 122 De Bruycker, Odys.mis Synthesis Report on Directive 200319, p. 45 el seq. m Stt Meyer, Mindestaufnahmebedingungen fiir Asylbewerber, p. 549. Stt also De Bruycker, Odysseus Synthesis Report on Directive 2003/9, p. 45 el seqq. for examples of national legislation on !his issue.

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3. Material reception conditions and actual residence

Member States may establish a link between residence in a particular place and the 16 provision of material reception conditions. This provision is of practical importance only if the Member State has made use of its competence to decide on the applicant's place of residence under the second paragraph. By requiring the applicant to actually take up residence at the assigned place in order to receive the envisaged benefits, Member States can effectively enforce the decision. The provision is of particular importance if Member States establish a system of benefits granted in kind. Asylum seekers who do not take up residence in this particular place are not entitled 17 to material reception conditions. i.e. food and clothing. Thus, Member States are able to guarantee the effective functioning of a system of benefits provided in kind. Although permissible in principle, this designation should not violate the applicant's fundamental rights, such as the prohibition of inhuman or degrading treatment or the right to family life, and should address any special reception needs of the individual.

4. Leaving the place of residence/the assigned area Article 7(4) establishes a legislative obligation to adopt or maintain a provision in national law that provides permitting applicants to temporarily leave their place of residence and/or the assigned area. It does not, however, prescribe the criteria according to which permission should be granted. They are to be determined by the Member States. Nevertheless, the Directive prescribes that decisions must be taken individually, objectively and impartially. Any negative decision should be reasoned in order to enable an accurate review. If permission is denied, the principle of proportionality must be respected. 124 While an assigned area should generally not affect the applicant's access to the benefits established under the Directive, there may be situations that require the applicant to leave that area in order to make use of a right. In particular, applicants with special reception needs may need to pursue treatment outside the assigned area. In such cases, permission is to be granted. The provision does not clearly distinguish between the assigned area and the place of residence. Usually, the asylum seeker is not required to ask for permission if she wants to leave the latter temporarily. However, some Member States require applicants to report regularly in the accommodation facility they are allocated to. In such cases, a permission to leave the place of residence would temporarily relieve the applicant from this requirement. Moreover, the Directive aims at avoiding conflicts between different obligations by declaring appointments with authorities and courts superior to the applicant's obligation not to leave a certain area. In practice, in order to demonstrate her right to move beyond the boundaries of this area, the applicant should always carry a proof of the appointment with her.

18

19

20

21

5. Change of address Article 7(5) aims at ensuring that the competent authorities are always informed about 22 the current address of the applicant so that they may contact her without delay. This information is necessary to safeguard the swift processing of the application. The provisi_on is relevant only if the applicant is not designated to a specific place of residence. 124

Sec TEU, Article 6(1) and Article 52 CFR

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Art.

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Asylum Reception Conditions Directive 2013/33/EU

Article 8 Detention I. Member States shall not hold a person in detention for the sole reason that he or she is an applicant in accordance with Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection. 2. When it proves necessary and on the basis of an individual assessment of each case, Member States may detain an applicant, if other less coercive alternative measures cannot be applied effectively. 3. An applicant may be detained only: (a) in order to determine or verify his or her identity or nationality; (b) in order to determine those elements on which the application for international protection is based which could not be obtained in the absence of detention, in particular when there is a risk of absconding of the applicant; (c) in order to decide, in the context of a procedure, on the applicant's right to enter the territory; (d) when he or she is detained subject to a return procedure under Directive 2008/ 115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third,ountry nationals< 9 l, in order to prepare the return and/or carry out the removal process, and the Member State concerned can substantiate on the basis of objective criteria, including that he or she already had the opportunity to access the asylum procedure, that there are reasonable grounds to believe that he or she is making the application for international protection merely in order to delay or frustrate the enforcement of the return decision; (e) when protection of national security or public order so requires; (0 in accordance with Article 28 of Regulation (EU) No 604/2013 of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless penono 0 i. The grounds for detention shall be laid down in national law. 4. Member States shall ensure that the rules concerning alternatives to detention, such as regular reporting to the authorities, the deposit of a financial guarantee, or an obligation to stay al an assigned place, are laid down in national law. Content mn. I. General remarks.............................................................................................. I II. Drafting history............................................................................................... 5 Ill. Applicable rules on detention...................................................................... 9 I. Status: an inadmissible ground for detention...................................... 9 2. The principles of necessity and proportionality.................................. I 0 3. Detention grounds...................................................................................... 15 4. The obligation to establish rules on alternatives................................. 36 page 60 of this Official Journal. OJ L 348, 24.12.2008, 98. 1'"' Sec page JI of this Official Journal.

1• 1 See

19 ,

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I. General remarks This article regulates the issue of detention of asylum applicants. It conceives I detention as an exception and stipulates that any deprivation of liberty must conform to the principles of necessity and proportionality. It establishes an exhaustive list of grounds for detention. It also unequivocally requires Member States to consider alternatives to detention before subjecting asylum seekers to detention and to establish such alternatives, both in their national legislation and in practice. Given that the asylum policy must be in accordance with the Geneva Convention, it 2 is important to clarify the scope of relevant norms in that legal instrument. Refugee status is declaratory. Freedom from arbitrary detention and non-penalisation of illegal entry is therefore a right which accrues to refugees who are 'physically present' and thus to asylum seekers, as presumptive refugees. Article 31 of the Geneva Convention provides for protection against penalisation 3 for refugees who are in a host State without authorisation. 125 The first paragraph emphasises the intention of the drafters to insulate refugees from penalties 126 for the act of crossing a border without authorisation. 127 Article 31 does not, however, prohibit altogether the detention of refugees. Indeed, '[t)he reference in paragraph l to penalties did not rule out any provisional detention that might be necessary to investigate the circumstances in which a refugee has entered a country'. 128 Hence, the most frequently invoked exception to the duty of non-penalisation is the right to detain refugees who enter without authorisation, pursuant to Article 31(2). 129 That provision enshrines protection against arbitrary limitation of refugees' right to 4 liberty and security. Its formulation prescribes an individualised usessment based on the principle of necessity. 110 States should not resort to the detention of asylum seekers if there is no appropriate justification. However, neither this provision, nor the Convention in general, contains an exhaustive list of permissible detention grounds.

II. Drafting history Apart from the ambiguous provision in Article 7(3), the former Asylum Reception S Conditions Directive 2003/9/EC failed to regulate detention of asylum seekers or enumerate permissible detention grounds. This reflects the political unease that the subject generated at the time. 131 Addressing this gap was one of the main stated aims of the recasting process. In its 6 2008 proposal, the Commission stressed that it was 'necessary to address this issue in a holistic way in this directive with a view to ensure that detention is not arbitrary and See analysis in Costello, Article 31 of the 1951 Convention Relating to the Status of Refugees. See the debates on the scope of the term 'penalties' in Goodwin-Gill, 'L'article 31 de la Convention de 1951 relative au statut des refugies: !'absence de sanctions penales, la detention et la protection', in: Fellerffiirk/Nicholson (eds), La protection des rifagies en droit international (UNHCR, 2008), p. 223-300. 117 Hathaway, The Rights of Refugees Under lntemationol Law (CUP, 201 I), p. 405. 128 Grahl-Madsen, Commentary on the Geneva Convention (Division of International Protection of the United Nations High Commissioner for Refugees, 1997), p. 98. 12'> Hathaway, The Rights of Refugees Under lntemationol Law (CUP, 2011), p. 413. ''° Noll, 'Article 31', in: Zimmermann (ed), The 1951 Refugee Convention Relating to th~ Statw of Refugee.sand its 1967 Protocol: A Commentary (OUP, 2011), p. 1268-1269. rn Wilsher, 'Immigration Detention and the Common European Asylum Policy', in: Baldaccini/Guild/ Toner (eds), Whose Freedom, Security and Jwtice? (Hart Pub Limited, 2011). p. 421. 125

116

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that fundamental rights are respected in all cases'. 132 The provisions contained in that proposal, however, did not form the basis of a satisfactory starting point for the Member States. This led the Commission, in its 2011 Amended Proposal to introduce 'more flexibility for some of the proposed detention rules' and to clarify different notions 'in order to facilitate their implementation, and to accommodate certain particularities of Member States' different legal systems' .133 7 In the course of the negotiations, the provision was further modified. This was particularly the case for detention grounds where Council delegations raised the number of permissible detention grounds from 4 to 6. 134 B The 2016 recast Reception Conditions proposal under negotiation at the time of writing goes even further by introducing an additional detention ground 'in order to tackle secondary movements and absconding of applicants'. 135 This new ground· would essentially authorise detention where an applicant has not complied with the obligation to reside in a designated place. 136

III. Applicable rules on detention 1. Status: an inadmissible ground for detention 9

Seeking asylum does not constitute in itself a permissible ground for detention. This guarantee is restated in the Asylum Procedures Directive 2013/32/EU (Article 16(1)), which makes a cross-reference to the Directive regarding the permissible grounds and conditions of detention of asylum seekers. This wording is consistent with the Geneva Convention that provides for protection from penalisation. The ECJ affirmed this in the Ministerio Fiscal case. 137 2. The principles of necessity and proportionality

The Directive establishes the obligation to conduct an individualised assessment, in respect of the principles of necessity and proportionality. Recital 15 explicitly states that Member States need to consider whether detention is necessary or whether the same result could be achieved through a less coercive measure, i.e. the application of an alternative. 11 Even without this explicit obligation, international law and the EU Charter still require Member States to examine alternatives, as an application of the principles of necessity and proportionality in order to avoid arbitrary deprivation ofliberty. 138 This goes beyond the obligations of Member States under Article 5( l )(0 ECHR, which does not foresee a necessity test, unless it is established under national law. 139 12 National authorities should therefore undertake, for every individual, both a needs and a risk assessmenL The needs assessment examines the vulnerability of the individual and their eventual special reception or procedural needs. 140 The risk assessment entails an 10

Commission Proposal, COM(2008) 815, Explanatory Memorandum, p. 6. "'Commission Amended Proposal, COM(201 I) 320 final, Explanatory Memorandum, p. 6. 114 See e.g. Council doc. 6799/12 of 29 February 2012, p. 28-29. 135 Commission Proposal, COM(2016) 465 final. Explanatory Memorandum, p. 14. 116 Ibid., Article 8(3)(c). 117 ECJ, Ministerio Fiscat C-36/20 PPU, EU:C:2020:331, para. 100. Ill Article 6 CFR. read together with Articles 52(3) and 53. 139 See e.g. ECtHR, Judgment of 15 November 1996, No 22414/93. Chahal v. the United Kingdom and ECtHR, Judgment of 29 January 2008, No 13229/03, Saadi v. the United Kingdom. 140 See for a definition of these notions Articles 2(k), 21, 22 and Asylum Procedures Directive 2013/32/Et;, Article 2(d). 112

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examination of whether the individual is exceptionally liable to detention, and if so, for what purpose and length. Alternatives to detention come into play when an individual is exceptionally liable to detention on the basis of one of the six grounds enumerated in Article 8(3). Alternatives could entail obligations involving different levels of coerciveness. Such 13 obligations often include restrictions on the freedom of movement, e.g., a daily curfew at the designated residence or an obligation to reside in the house of the guarantor in case of bail,1 41 Their aim is to mitigate the risk factors identified by the authorities that considered the particular individual was liable to detention. They should therefore be distinguished from restrictions to the freedom of movement or obligations that concern the totality of asylum seekers and the normal running of reception and procedural systems, such as obligations to declare the address of stay to the authorities or to remain in a specific district (see Article 7). For a scheme to be characterised as an alternative, it must 'fall short' of deprivation of 14 liberty and constitute a non-custodial measure (see also recital 20), 142 or it would be an alternative form of detention. Alternatives should also respect the fundamental rights of asylum seekers as enshrined in international legal instruments, the ECHR and the EU Charter (recitals 20, 35).

3. Detention grounds Article 8(3) establishes an exhaustive list of six detention grounds. Each of those grounds meets a specific need and is self-standing. 143 In Ministerio Fiscal the Court concluded that detaining an applicant because it was not possible to find him a place in a humanitarian reception centre, does not correspond to any of the six grounds, and was thus contrary to the directive. 144 The wording of the second ground in the 2011 Commission Amended Proposal was somewhat more restrictive as it foresaw it would be time-limited to 'the context of a preliminary interview'. 145 This precision was later removed. The qualification of the existence of a 'risk of absconding' was absent from the 2011 text. 146 Despite its inclusion in the Directive text, no definition of the term 'risk of absconding' was included. In K, the ECJ made a link with the prevention of secondary movements. 147 Both the first and second grounds can be understood as 'an obligation by law' and detention comes to 'secure its fulfilment', as foreseen in Article 5(l)(b) ECHR In K, the ECJ connected instead these grounds with the first limb of Article 5(1)(0 ECHR, i.e. preventing an unlawful entry into the territory, without providing further explanations as to the relevance of that provision. 148 Detention must be necessary and proportional. Thus, Member States must justify why recourse to detention is necessary in the individual case, such as objectively 141 For an in-depth study on the regulation and application of alternatives to immigration detention in the EU see De Bruycker (ed)/Bloomfieldfl'sourdi/Petin, Alternatives to Immigration Detention, as well as Bloomfield, 'Alternatives to Detention at a Crossroads: Hwnanisation or Criminalisation?', Refugee Survey Quarterly 35 (2016), p.29, and Tsourdi, Asylum Detention in EU Law: Falling between Two Stools? Refugee Survey Quaterly 35 (2016), p. 7, at pp. 16-19. 14.! The term 'non-custodial' concerns the physical liberty of the person; a non-custodial measure is one that does not dispossess someone of this liberty whether at a detention centre or at another location. 10 See ECJ, JN., C-601/15 PPU, EU:C:2016:84, para 59; ECJ, K., C-18/16, EU:C:2017:680, para 42. 144 ECJ, Ministerio Fiscal. C-36/20 PPU, paras 109-112. 1.s Commission Amended Proposal, COM(2011) 320, Article 8(3)(b). 146 [bid. 147 ECJ, K., C-18/16, EU:C:2017:680, para 39. 141 Ibid., para 52.

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19

20

21

22

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substantiating a risk of absconding. and prove that less invasive measures would not have been effective. According to the principle of proportionality, a balance must be struck between the importance in a democratic society of securing the immediate fulfilment of the obligation in question, and the importance of the right to liberty. The foreseeable length of detention and the behaviour of the applicant play an important role when assessing proportionality. In the asylum framework, information cannot be sought through the authorities of the country of origin. Thus, the principle of 'due diligence' in ascertaining the existence of one of grounds (a) or (b) of Article 8(3) would mean that they could be invoked only for a short period to collect information from the applicant and process any documentation the national authorities might provide. The ECJ referred to supplying. as far as possible, the required supporting documents and, where appropriate, the explanations and information requested. 149 As UNHCR notes, this exception to the general principle that detention of asylum-seekers is a measure of last resort cannot be used to justify detention for the entire determination procedure, or for an unlimited period of time. 150 Regarding ground c), the ECtHR considered in Saadi v. UK, that asylum seekers' detention could be understood as falling under the scope of detention so as to prevent a person from 'effecting an unauthorised entry into the country'. 151 However, apart from the fact that the full array of guarantees developed by the ECtHR applies, EU law, unlike the ECHR. establishes a requirement of necessity. The absence of that requirement was the premise on which the ECtHR allowed detention for the purpose of administrative expediency. 152 On the contrary, under EU law, Member States have to objectively justify why detention is necessary in each case. In addition, the Strasbourg Court only allowed detention on this limb of Article 5(1) (0 ECHR, in cases where a State had not 'formally authorised' entry or stay pending the examination of the asylum claim. As explained above (Article 7 MN 8), it is arguable that under EU asylum law, entry of asylum seekers is authorised in all contexts other than in border procedures. 153 However, this does not result in blanket permission to detain all applicants at the border. The requirements of necessity and proportionality and the principle of an individualised assessment equally apply in this context. The ECJ affirmed this in the FMS and the Commission v. Hungary cases finding that Hungary's practice of automatically detaining every asylum seeker in border transit zones, for the entirety of the examination of their applications was against both the relevant provision on border procedures of the 2013 recast Asylum Procedures Directive and of Article 8 (3)(c) of the Directive. 1S4 Ground (d) reveals the overlap between EU asylum and migration policies. Some third country-nationals detained with a view to enforcing a return decision file an asylum claim. Cognizant of this, the Member States wanted a means to prevent what they considered 'abusive' claims that aim exclusively to obstruct the return process. This detention ground was not included in any of the Commission proposals but was added by the Member States.1 55 ••• Ibid., para 38. UNHCR, Detention Guidelines, para 28. 151 EQHR, Judgment of 29 January 2008, No 13229/03, Saatli v. the United Kingdom, op.cit. and Article S(l)(t) ECHR. m Ibid., op.cit. paras 72-73. 153 See Asylum Procedures Directive 2013/32/EU, Article 43(2). •~ ECJ, FMS. C-924/19 PPU and C-925/19 PPU, EU:C:2020:367, paras 237-245 and ECJ, Commission v. Hungary, C-808/18, EU:C:2020:1029, paras lTT-185. 155 See e.g. Council doc. 13102/11 of 12 September 2011 and doc. 6799/12 of 29 February 2012. 150

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In practice, it is possible that the individual has not had the possibility to access an asylum procedure before being served with a return order, for example at the border where expedited return takes place, or in Member States facing particular migratory pressures and structural problems in their asylum system which render access to an asylum procedure problematic. 156 The final compromise on the wording of this ground takes into consideration such situations; however it is important that it is implemented correctly at the national level and that the burden of proving fraudulent motives, namely 'merely in order to delay or frustrate the enforcement of the return decision' will indeed rest on the Member State. The ECJ has addressed similar questions. In Kadzoev, it stressed that detention for the purpose of removal and detention of an asylum seeker and the applicable national provisions fall under different legal rules. 157 In Arslan, the Court clarified that during the examination of the asylum claim the Return Directive is not applicable. 1ss The ECJ observed also that at the point of rendering its decision, there were no harmonized grounds for detaining asylum seekers at European level and thus it fell to Member States to adopt such lists, in full compliance with their obligations arising from both international law and EU law. 159 The Court found that, on the basis of the text of the former Asylum Reception Conditions Directive 2003/9/EC, it is possible to keep an asylum seeker in detention on the basis of a provision of national law, if it appears that this claim was made solely to delay or jeopardise the enforcement of the return decision. 160 However, Member States need to assess on a cue-by-case basis all the relevant circumstances and it must be objectively necessary to maintain detention to prevent the person concerned from permanently evading return. 161 In Ministerio Fiscal, the ECJ found that the conditions under Article 8(3)(d) were not fulfilled in the specific case and thus the detention of the applicant could be justified. 162 Article 8(3)(e) targets two distinct situations: the protection of national security or the protection of public order. These grounds are also enounced in a series of provisions contained in soft-law instruments on the detention of asylum seekers. 163 Concerning the content of the term 'national security' the ECJ in JN followed its previous case law finding that it 'covers both the internal security of a Member State and its external security and that, consequently, a threat to the functioning of institutions and essential public services and the survival of the population, as well as the risk of a serious disturbance to foreign relations or to peaceful coexistence of nations, or a risk to military interests, may affect public security'. 164 The scope and content of the term 'public order' in this context is far from dear. In /N, the ECJ pointed to its earlier case law according to which 'the concept of "public order• entails, in any event, the existence - in addition to the disturbance of the social order 156 See e.g. ECRE, ICJ, Second Joint Submission of the International Commission of Jurists (ICJ) and of the European Council on Refugees and Exiles (ECRE) to the Committee of Ministers of the Council of Europe in the case of M.S.S. v. &/gium and Greue (No 30696/09) and related cases, February 2013, 18-20. 157 ECJ, Kadzoev, C-357/09, EU:C:2009:741, para 45. 158 ECJ, Arslan, C-534/11, EU:C:2013:343, para 49. 159 Ibid., paras 55-56. 160 Ibid., para 63. 1• 1 Ibid. 102 ECJ, Ministerio Fiscal, C-36/20 PPU, EU:C:2020:331. '"' See Council of Europe, Rec(2003 )5 of the Committee of Ministers to member states on measures of detention of asylum seekers (16 April 2003), para 3; UNHCR. Detention Guidelines, paras 22-28 (addressing public order) and 30 (addressing national security). 164 EC), JN., C-601/15 PPU, EU:C:2016:84, para 66, referring to ECJ, Tsakouridis, C-145/09, EU: C:2010:708, paras 43 and 44.

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24

25

26

27

Chp. 22

28

29

30

31

A.rt.

s

Asylum Reception Conditions Directive 2013/33/EU

which any infringement of the law involves - of a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society'. 165 The 2012 UNHCR guidelines understand the following situations as public order protection: 'to prevent absconding and/or in cases of likelihood of non-cooperation'; 'in connection with accelerated procedures for manifestly unfounded or dearly abusive claims'; 'for initial identity and/or security verification' and 'in order to record, within the context of a preliminary interview, the elements on which the application for international protection is based, which could not be obtained in the absence of detention'. 166 Some of these overlap with grounds listed under Article 8(3)(a) and (b) though. Given the exhaustive enumention of exceptions to the right to liberty and security under Article 5 ECHR, the grounds of national security or public order can only be validly invoked by Member States, if they fall in the scope of one of the exceptions contemplated therein. 167 Such situation would be the valid invocation, of securing 'the fulfilment of any obligation prescribed by law' .168 Moreover, they could be invoked in relation to 'the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence' or 'when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so'.1 69 Nevertheless, in that case rdevant provisions of criminal law at national level, rather than those concerning reception of asylum seekers, would come into play to justify detention.17° Another way this ground could be validly invoked in compatibility with the ECHR is in strict relation to the ground contained in Article 8(3)(c), i.e. procedure on the applicant's right to enter, which reflects Article 5(1)(0, first limb ECHR. This would mean however that all the guarantees related to ground (c) would apply and that Member States would have to prove that detention is closely connected to deciding upon the entry of the individual. In JN, the Advocate General sought the compatibility in EU law of these grounds in these limitations of Article 5(1) ECHR. 171 The ECJ, however, took a less principled approach in /N. 172 Namely, it held that since a return procedure can be resumed after an eventual rejection of an asylum application, it can be assumed that detention is 'still being taken' in view of deportation, thus connecting this ground with the second limb of Article 5(1)(0 ECHR. 173 In deciding this the ECJ did not fully take into account several elements: the right to stay that an asylum applicant enjoys under EU law; 174 that the Returns Directive explicitly states that asylum seekers cannot be considered as ' illegally staying ' as long as their claim is pending at first instance; 175 and, finally, that in the particular case according to national law, the return order had lapsed, thus there was no legal basis for a ' future' return.

1• 5 ECJ, JN., C-601/15 PPU, EU:C:2016:84, para 65, referring to ECJ, Zh. and 0., C-554/13, EU: C:2015:377, para 60 and ECJ, T., C-373/13, EU:C:2015:413, para 79. 166 UNHCR, Detention Guidelines, paras 22-28. 1• 1 ECtHR. Judgment of 19 February 2009, No 3455/05, A. and others v. the United Kingdom, para 171. 1oa See ECHR, Article 5(1)(b). 169 See ECHR, Article 5( 1)(c). 170 Detention could therefore be covered under the scope of Article S(c) ECHR on detention on remand. 171 See Opinion of AG Sharpston, JN. C-601/15 PPU, EU:C:2016:85, paras 116-126. 172 See analysis in Tsourdi, in Moraru/Comelisse/De Bruycker (eds), Law and Judicial Dialogue, pp. 167-190, at pp. 185-189. m ECJ, JN., C-601/15 PPU, EU:C:2016:84, para 78. 114 Asylum Procedures Directi~ 2013/32/EU, Article 9(1) and above Article 3 MN 9-11. 175 Rrtum Directi~ 2008/115/EC, Recital 9, and ECJ, Gnandi, C-181/16, EU:C:2018:465, para 40.

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The Council added another ground, Article 8(3)(0 in the course of the negotiations. 176 It contemplates detention of asylum seekers who are subject to a 'Dublin transfer'; it basically refers to the Dublin III Regulation (EU) No 604/2013, according to which an asylum seeker should not be held in detention for the sole reason that she is subject to a 'Dublin procedure•_i;; The only recognized ground for detention is 'a significant risk of absconding' on the basis of an individual assessment. 178 The Regulation stresses that the principles of necessity and proportionality need to be respected in the application of this ground 179 It sets strict deadlines for submitting a request to the Member State deemed responsible and for realising the transfer. 180 Finally, as regards detention conditions and the guarantees applicable to persons detained, the relevant provisions of the Directive are fully applicable. 18 • The Dublin III Regulation (EU) No 604/2013 defines a risk of absconding u 'the existence of reasons in an individual case, which are based on objective criteria defined by law, to believe that an applicant or a third-country national or a stateless person who is subject to a transfer procedure may abscond'. 182 This definition is almost identical to that contained in the Return Directive 2008/115/EC.1 83 The wording suggests that without national laws of Member States specifying objectively when such a risk exists, it cannot be relied upon for the pre-transfer deprivation of liberty} 84 In this regard, Germany's Federal Court of Justice stated 185 that paragraph 62 of the Residence Act did not entail any objective criteria defining a risk of absconding186 and declared as a result that Dublin transfer detention could no longer be based on a risk (or intention) of absconding. 187 In A/ Chodor, the ECJ affirmed that the relevant provisions of the Dublin III Regulation (EU) No 604/2013 require Member States to establish, in a binding provision of general application, objective criteria underlying the reasons for believing that an applicant for international protection who is subject to a transfer procedure may abscond. 188 The absence of such a provision in national law leads to the inapplicability of Article 28(2) of that regulation. 189 This detention in view of the transfer of the applicant to another Member State for the functioning of the EU responsibility-allocation regime could be contemplated as 'pre-removal' detention; the removal however referring to the transfer to the Member State responsible and not to the country of origin of the applicant. 176

Stt e.g. Council doc. 13102/11 of 12 September 2011 and doc. 6799/12 of 29 February 2012. Dublin Ill Regulation (EU) No 604/2013, Anicle 28(1). 1711 Dublin Ill Regulation (EU) No 604/2013, Anicle 28(2).

177

179

Ibid.

,., Dublin lll Regulation (EU) No 604/2013, Article 28(3). A 'take charge" request applies where a Member State with which an application for international protection has been lodged considers that another Member State is responsible for examining the application. A 'take back" request applies where an individual applies for international protection or is present on the territory of a Member State while his application is already under examination in another Member State. ••• Dublin lll Regulation (EU) No 604/2013, Anicle 28(4). Ill Dublin Ill Regulation (EU) So 604/2013, Anicle 2(n). 1u Return Directive 2008/115/EC, Article 3(7); see also EC), Mahdi, C-146/14, EU:C:2014:1320. 1M De Bruycker/Mananashvili/Renaudiere, The Extent of Judicial Control of Pre-Removal Detention in the EU, p. 23. •• 5 German Bundesgerichtshof (Federal Supreme Court), Decision V ZB 31/14, 26 June 2014. 1"' Paragraph 62(3) 1n Sentence, No 5 mentions merely an intention of absconding without providing further specifics. '"' De Bruycker/Mananashvili/Renaudi~re. The Extent of Judicial Control of Pre-Removal Detention in the p. 23. 1"" EC), Al Chodor, C-528/15, EU:C:2017:213. '"' Ibid.

EU:

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33

34

35

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Art. 9

Asylum Reception Conditions Directive 2013/33/EU

4. The obligation to establish rules on alternatives 36

As long as they comply with the requirements stated above, i.e. to be non-custodial and to respect the fundamental rights of asylum seekers, Member States are free to set up different alternatives to detention. Article 8(4) mentions a number of schemes: regular reporting to the authorities, the deposit of a financial guarantee, or an obligation to stay at an assigned place. The wording employed, 'such as', makes it clear that this is a non-exhaustive list which does not restrain Member States from establishing further alternative schemes. Moreover, Member States must not only operationalise in practice alternative schemes, they must also enact such schemes via their national rules transposing the Directive.

Article 9

Guarantees for detained applicants l. An applicant shall be detained only for as short a period as possible and shall be kept in detention only for as long as the grounds set out in Article 8(3) are applicable. Administrative procedures relevant to the grounds for detention set out in Article 8(3) shall be executed with due diligence. Delays in administrative procedures that cannot be attributed to the applicant shall not justify a continuation of detention. 2. Detention of applicants shall be ordered in writing by judicial or administrative authorities. The detention order shall state the reasons in fact and in law on which it is based. 3. Where detention is ordered by administrative authorities, Member States shall provide for a speedy judicial review of the lawfulness of detention to be conducted ex officio and/or at the request of the applicant. When conducted ex officio, such review shall be decided on as speedily as possible from the beginning of detention. When conducted at the request of the applicant, it shall be decided on as speedily as possible after the launch of the relevant proceedings. To this end, Member States shall define in national law the period within which the judicial review ex officio and/or the judicial review at the request of the applicant shall be conducted. Where, as a result of the judicial review, detention is held to be unlawful, the applicant concerned shall be released immediately. 4. Detained applicants shall immediately be informed in writing, in a language which they understand or are reasonably supposed to understand, of the reasons for detention and the procedures laid down in national law for challenging the detention order, as well as of the possibility to request free legal assistance and representation. 5. Detention shall be reviewed by a judicial authority at reasonable intervals of time, ex officio and/or at the request of the applicant concerned, in particular whenever it is of a prolonged duration, relevant circumstances arise or new information becomes available which may affect the lawfulness of detention. 6. In cases of a judicial review of the detention order provided for in paragraph 3, Member States shall ensure that applicants have access to free legal assistance and representation. This shall include, at least, the preparation of the required proce-

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Chp. 22

dunl documents and participation in the hearing before the judicial authorities on behaH of the applicant. Free legal assistance and representation shall be provided by suitably qualified persons as admitted or permitted under national law whose interests do not conflict or could not potentially conflict with those of the applicant. 7. Member States may also provide that free legal assistance and representation are granted: (a) only to those who lack sufficient resources; and/or (b) only through the services provided by legal advisen or other counsellon specifically designated by national law to assist and represent applicants. 8. Member States may also: (a) impose monetary and/or time limits on the provision of free legal assistance and representation, provided that such limits do not arbitrarily restrict access to legal assistance and representation; (b) provide that, as regards fees and other costs, the treabnent of applicants shall not be more favourable than the treatment generally accorded to their nationals in matten pertaining to legal assistance. 9. Member States may demand to be reimbursed wholly or partially for any costs granted if and when the applicant's financial situation has improved considerably or if the decision to grant such costs was taken on the basis of false information supplied by the applicanL 10. Procedures for access to legal assistance and representation shall be laid down in national law. Content

mn. I. General remarks and drafting history........................................................

l

II. Guarantees........................................................................................................ 3 I. Length of detention.................................................................................... 3 2. Judicial review............................................................................................. 6 3. Information obligation.............................................................................. 11 4. Right to free legal assistance and representation ................................ 13

I. General remarks and drafting history Article 9 enounces a series of procedural guarantees for detained asylum seekers that 1 pertain both to the initial decision and to the right to challenge the detention decision. It also establishes a right to free legal aid, which is, however, circumscribed. This article was heavily modified during the negotiation process. Several changes, 2 especially regarding the responsible authorities for ordering detention and judicial review, were brought about by the Commission.1 90 Guarantees were further diluted during the negotiations between the co-legislators. More significantly, a number of additional conditions were introduced for accessing free legal aid. 191

190

Compare Commission Amended Proposal, COM(201 l) 320. Article 9 with Commission Proposal,

COM(2008) 815, Article 9. 1• 1 See e.g. Council doc. 13102/11

of 12 September 2011 and doc. 6799/12 of 29 February 2012. Tsourdi

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Art. 9

Asylum Reception Conditions Directive 2013/33/EU

II. Guarantees I. Length of detention

3

The maximum permissible duration of detention is not specified. However, several elements point towards a short period. Article 9(1) clarifies that the period should be 'as short a period as possible' and the applicant should only be retained for as long as a detention ground is applicable. It has also been argued that Article 15 of the Directive setting a time-limit after which access should be granted to the labour market, should be taken to entail an implicit final deadline to custodial measures. 192 The 2008 Commission Proposal carried further time restrictions regarding the first three grounds and these were dropped already in the 2011 Commission Amended Proposal. 193 4 What has been kept is an obligation for the national authorities to execute administrative procedures with 'due diligence'. This position is further enhanced by recital 16. 5 It is important to note that in the framework of asylum, 'due diligence' does not refer to a timely processing of asylum claims, as detention is not authorised for effecting the assessment, neither for administrative convenience. Due diligence relates to speedily and efficiently verifying the reasons why it is considered necessary to detain the asylum seeker. 194 Finally, delays in administrative procedures that cannot be attributed to the applicant cannot justify a continuation of detention. 2. Judicial review

The 2008 Commission Proposal foresaw that only judicial authorities could order detention, apart from urgent cases when administrative authorities could order it. 195 However, in the latter case, judicial authorities should have confirmed the order within 72 hours. 196 The 2011 Commission Amended Proposal foresaw that both judicial and administrative authorities could order detention but in the latter case judicial validation should have been ensured within 72 hours. 197 7 The final compromise is radically different from these proposals; it affords a great level of discretion for Member States but is less protective for asylum seekers. Namely either judicial or administrative authorities can order detention. When the latter order it, Member States should provide for a speedy judicial review of the lawfulness of detention to be conducted ex officio and/or at the request of the applicant. No specific time limit is set for the execution of this control; this is left in the discretion of Member States who, nevertheless, have to specify it in their national laws. The only precision contained in the Directive is that such control should be undertaken 'as speedily as possible' from either the beginning of detention, when conducted ex officio, or from the launch of the proceedings, when conducted at the request of the applicant. If detention is found unlawful as a result of this control, the applicant should be released immediately.

6

192 Moreno Lax/Guild, in Peers/Moreno Lax/Garlick/Guild (eds), EU Immigration and Asylum Law, p. 521. 193 Stt Commission Amended Proposal, COM(201 l) 320, Article 9( I) with Commission Proposal, COM(2008) 815, Anicle 9(1). 194 ECRE, Not There Yet: An NGO perspective on Challenges to a Fair and Effective Common European Asylum System (2013), p. 34. m Commission Proposal, COM(2008) 815, Article 9(2). 196 lbid. '" Commission Amended Proposal, COM(2011) 320, Aniclc 9(2).

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Apart from the initial judicial review, the Directive foresees a review by a judicial 8 authority, at reasonable intervals of time, ex officio and/or at the request of the applicant. This is the case in particular whenever detention is of a prolonged duration, relevant circumstances arise, or new information becomes available which may affect the lawfulness of detention. Article 5(4) ECHR also guarantees this right. The Strasbourg Court has held that this 9 remedy must be sufficiently certain, in theory and in practice, in order to be accessible and effective. 198 It is particularly important that asylum seekers have access to effective remedies because they are in a precarious position and could face refoukment."19 The CFR equally guarantees this right. Article 47 CFR foresees an effective remedy 10 before a tribunal to 'everyone' whose rights and freedoms guaranteed by Union law are violated.

3. Information obligation Article 9(4) enounces several obligations regarding information to the applicants in a 11 language 'which they understand or are reasonably supposed to understand'. 200 This formulation raises concern as to its compatibility with the ECHR. The Conven- 12 tion stipulates that information of the reasons of the arrest and of any charges against the individual, should be communicated in a language 'which he understands'. 201 Moreover, the ECtHR has found a violation of Article 5(2) ECHR in the case of a Polish detainee who received a detention order in Ukrainian, a language that he did not have sufficient knowledge of. 202 Article 9(4) of the Directive has thus to be applied in the light of this jurisprudence.

4. Right to free legal assistance and representation Article 9(6) contains a right to free legal assistance and representation, which 13 includes 'at least, the preparation of the required procedural documents and participation in the hearing before the judicial authorities on behalf of the applicant'. In addition, a certain quality is expected from the legal representatives who should be 'suitably qualified persons as admitted or permitted under national law whose interests do not conflict or could not potentially conflict with those of the applicant'. As long as these conditions are fulfilled, Member States may foresee that only specifically designated advisors or councillors assist and represent applicants (Article 9(7)(b)). Nevertheless, this right has been restricted compared to what the Commission had 14 envisaged in its 2008 and 2011 proposals. First, Article 9(6) provides that this right concerns only the initial judicial review and not the judicial review to be conducted at reasonable intervals of time. Moreover, Member States may foresee that only those who lack sufficient resources have access to this right. In order to prevent abuse, Member States added Article 9(9) which stipulates that they can demand to be reimbursed wholly or partially for any costs granted in two situations: i) if and when the applicant's financial situation has improved considerably or ii) if the decision to grant such costs was taken on the basis of false information supplied by the applicant. 108 FRA/ECtHR, Handbook on European Law relating to asylum, borders and immigration (2014), p. 166; see also ECtHR, Judgment of 7 June 2007, No 38411/02, Gabaraiev v. Russia, para 94. 199 Ibid.; see also ECtHR, Judgment of 22 September 2009, No 30471/08, Abdolkkani and Karimnia v. Turkey and ECtHR, Judgment of 11 June 2009, No 53541/07, S.D. v. Greece. ,m Emphasis added; see also Article 5 MN 11-12 where the tenn 'reasonably supposed to understand' is analysed. lilt ECHR. Article 5(2); emphasis added. !fl> See ECtHR, Judgment of 31 March 2011, No 60846/10, Nowak v. Ukraine.

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Art. 10

Asylum Reception Conditions Directive 2013/33/EU

Finally, according to Article 9(8)(a), Member States may choose to impose monetary and/or time limits on the provision of free legal assistance and representation, while such limitations should not arbitrarily restrict access to legal assistance and representation. Member States may provide that, as regards fees and other costs, the treatment of applicants shall not be more favourable than the treatment generally accorded to their nationals (Article 9(8)(b)). In any case, Member States must lay down procedures for access to legal assistance and representation in their national law (Article 9(10)). 16 Article 9 does not foresee a ~eel 'merits-test', i.e. the possibility for Member States to exclude legal assistance and representation in case there is 'no tangible prospect of success of the application. 203 This reflects the importance that is placed on the right that is at stake. It somewhat counterbalances the fact that detention may be ordered on a regular basis by administrative authorities. · 17 Article 9 establishes possibilities and not obligations for Member States to restrict legal assistance and representation. Therefore Member States may choose not to make use of (all oO them. They attest to concerns of overburdening national budgets and a general tendency to restrict free legal aid. 204

15

Article 10

Conditions of detention 1. Detention of applicants shall take place, as a rule, in specialised detention facilities. Where a Member State cannot provide accommodation in a specialised detention facility and is obliged to resort to prison accommodation, the detained applicant shall be kept separately from ordinary prisoners and the detention conditions provided for in this Directive shall apply. As far as possible, detained applicants shall be kept separately from other thirdcountry nationals who have not lodged an application for international protection. When applicants cannot be detained separatdy from other third-country nationals, the Member State concerned shall ensure that the detention conditions provided for in this Directive are applied. 2. Detained applicants shall have access to open-air spaces. 3. Member States shall ensure that persons representing the United Nations High Commissioner for Refugees (UNHCR) have the possibility to communicate with and visit applicants in conditions that respect privacy. That possibility shall also apply to an organisation which is working on the territory of the Member State concerned on behalf of UNHCR pursuant to an agreement with that Member State. 4. Member States shall ensure that family members, legal advisers or counsellors and persons representing relevant non-governmental organisations recognised by the Member State concerned have the possibility to communicate with and visit applicants in conditions that respect privacy. Limits to access to the detention facility may be imposed only where, by virtue of national law, they are objectively necessary for the security, public order or administrative management of the detention facility, provided that access is not thereby severdy restricted or rendered impossible. 5. Member States shall ensure that applicants in detention are systematically provided with information which explains the rules applied in the facility and sets 103

For other types of appeals, this possibility is foreseen by Anicle 26(3 ). For an oveniew of national practices see ECRE/ELENA, Survey on legal aid for asylum seekers in Europe, October 2010. 204

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out their rights and obligations in a language which they UDdentand or are reasonably supposed to understand. Member States may derogate from this obligation in duly justified cases and for a reasonable period which shall be as short as possible, in the event that the applicant is detained at a border post or in a transit zone. This derogation shall not apply in cases referred to in Article 43 of Directive 2013/32/EU. Content I. General remarks.............................................................................................. II. Drafting History.............................................................................................. Ill. Detention Conditions..................................................................................... J. Types of facilities........................................................................................ 2. Access to open-air spaces.........................................................................

mn. I 3 4 4 7

3. Right to access and communication ······················-······-······················ 4. Obligation to inform..................................................................................

JO

8

I. General remarks Article 10 contains specifications and standards regarding asylum seekers' detention conditions. Article 11 contains additional guarantees specifically geared to the situation of vulnerable asylum seekers. However, the Directive does not fully harmonise all aspects of detention conditions. These could be further developed through the adoption of soft-law instruments, such as a 'Handbook'. 205 Inappropriate detention conditions come under the close scrutiny of the ECtHR 2 and may render detention arbitrary and thus in contravention of Article 5 ECHR. The ECtHR has specified that in order to avoid arbitrary detention, the conditions and place of detention should be appropriate. 206 In addition, conditions of detention may sometimes amount to inhuman or degrading treatment, and have been found to violate Article 3 ECHR .207 Most recently, this was found to be the case regarding conditions in the Roszke transit zone in Hungary where asylum applicants were de facto deprived of their liberty. 208

II. Drafting History Article IO( I) of the 2008 Commission Proposal excluded the possibility of asylum 3 seekers' detention in prison accommodation and foresaw that they should always be separated from other detained third country nationals, unless it was for the benefit of ensuring family unity. Article 10(1) and (6) of the 2011 Commission Amended Proposal established some flexibility by permitting the use of prison accommodation in 'duly justified cases and for a reasonable period'. That version also introduced exceptions under the same conditions regarding the obligation to inform detained

N


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Dublin Ill Regulation (EU) No 604/2013

Art. 2

3. 'Withdnwal of an application' (letter e) 6

What 'actions' amount to an explicit or tacit withdrawal of the application, _for the effects described below (see Article 18 MN 11, and Article 20 MN 6), is still largely a matter of national law, subject to the provisions of the Asylum Procedures Directive 2013/32/EU for the Member States that are bound by it. 32 4. 'Beneficiaries of international protection' (letter f)

7

'Beneficiaries of international protection' are the persons who have 'been granted' refugee status or subsidiary protection within the meaning of the Asylum Qualification Directive 2011/95/EU. The declaratory character of refugee status notwithstal'lding, formal recognition by the authorities is therefore required for the purposes of the Regulation and especially of its Article 9. 33 8 In the Member States that are not bound by the EU Directives and have not autonomously introduced the EU concept of 'subsidiary protection' in their legislation, applying the definition requires a case-by-case determination of whether the concerned person was admitted on grounds comparable to those that are set out in Article 15 of the Asylum Qualification Directive 2011/95/EU. 34

5. 'Family memben' and 'relatives' (letten g-h) Letter (g) lays down the basic definition of 'family member' applicable throughout the Regulation (on the variations and refinements introduced by these provisions, see below Article 8 MN 3-6, Article 9 MN 2, Article 11 MN 2, Article 16 MN 11, Article 20 MN 3). It is a restrictive definition embracing only the closest nuclear family. 35 Unmarried partners are included only if aliens legislation in the Member State concerned treats them comparably to spouses - a proviso that might give rise to unjustified disparities of treatment. The ties between children and their parents or other responsible adults are protected only if the children are unmarried - another distinction that is liable to produce the most severe injustices especially in cases of forced marriage. Lastly, whether an adult is the 'responsible adult' and therefore a family member of a minor is to be judged according to the law and practice of the State where he or she is present - a legislative choice that facilitates the work of the administrations but might lead them to disregard personal ties of considerable importance in the life and in the culture of the persons concerned. 10 In addition, family ties are only covered if 'the family already existed in the country of origin', by which the legislator probably meant the country of nationality. While it is not entirely clear how this proviso applies to multi-national families, it certainly purports to exclude family ties formed after the applicant's arrival in the Dublin area or en route to Europe. Such a sharp distinction impacts the equal 9

12 See Vedstcd-Hanscn, Asylum Procedures Directive 2013/32/EU, Articles 27 and 28. On potential limits to the use of the concept flowing from a systematic interpretation of the Regulation, see Filzwieser/ Sprung, Dublin 111-Verordnung, p. 86, MN Kl5. 33 Filzwieser/Sprung, Dublin 111-Verordnung, p. 87, MN K20. See also Dorig, Asylum Qualification Directive 2011/95/EU, Article 2 MN 5. The declaratory character of refugee status has of course important implications under EU Law, including in matters of family reunification: sec ECJ, A. and S., C-550/16, EU:C:2018:248. 34 See in particular Swiss Bundesvcrwaltungsgericht (Federal Administrative Court), Judgment of I July 2015, E-4620/2014 (BVGE 2015/18), pan 3.6ff. 35 Article 2(g) of the Commission Proposal, COM(2020) 610, foresees the inclusion of siblings. As the law stands, siblings are only included under Articles 8, 11 and 16 of the Regulation.

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enjoyment of family life under Articles 8 and 14 ECHR and has no inherent justification. Indeed, it cannot be said that families formed outside the country of origin are inherently less worthy of protection than families formed there. 36 By drawing the distinction the legislator rather seeks to prevent abuses such as marriages of convenience concluded in order to influence the application of the criteria.37 However, a blanket distinction penalizing all families formed outside the country of origin goes far beyond what is necessary in order to achieve this objective.38 Accordingly, if violations of Article 14 ECHR are to be avoided, the proviso that 'the family already existed in the country of origin' should not be applied automatically but rather on a case by case basis in order to ascertain whether the circumstances disclose or suggest the existence of abuse. 39 More generally, the definition given in Article l(g) mmt be placed in the broader 11 context of the Regulation and of human rights law. In addition to recalling the obligations incumbent on the Member States under international law and primary EU law (see recitals 32 and 39) the preamble stresses that 'respect for family life should be a primary consideration of Member States when applying [the) Regulation' (recital 14; see also recitals 13 and 15-18). This recital has a direct impact on the interpretation of Article 2(g). Indeed, the notion of 'family life' enshrined in Article 8 ECHR and in Article 7 of the Charter is broader than the notion of 'family member' in Article 2(g). According to the constant case-law of the ECtHR, 'the existence or non-existence of "family life" is essentially a question of fact depending upon the real existence in practice of close personal ties'. 40 The limiting criteria of Article 2(g), such as the moment and place where family ties were formed, are not relevant to assessing whether there is family life. 41 This does not in itself render the narrower definition of the Regulation contrary to the ECHR, but it has several implications. 42 First and foremost, it implies that even when Article 2(g) is found not to apply, the proceeding authority must still independently consider whether its actions adversely affect 'family life' at all stages of the Dublin process (see below Article 17 MN 9). Furthermore, the concept of 'family life' should be taken into account to the extent possible when interpreting the definition of 'family members', since recital 14 belongs to the immediate interpretive context of Article 2(g). This does not mean that the conditions for recognizing the existence of 'family life' should be mechanically imported into the definition of Article 2(g): for instance, per Annex I of the Dublin Implementing Regulation (EC) 1560/2003 the simple production of extracts from public registers is conclusive proof that a marriage exists and considerations of 'factual intensity' are irrelevant.0 However, to honour the "'ECtHR, Judgement of 6 Sovember 2012, No. 22341/09, Hode and Abdi v. the United Kingdom, para 55. 37 Filzwieser/Sprung. Dublin III-Verordnung, p. 89, MN K26. !II ECtHR, Judgement of 6 November 2012, No 22341/09, Hode and Abdi v. the United Kingdom. para 52. Note that Article 7 already fulfils this function to a large extent (see below Anide 7 MN 3 ff). J• The proposed interpretation is a ca,e of teleological reduction, admissible in EU law: see Lmaerts/ Gutierrez-Fon~ 'To Say What the Law of the EU is: Methods of Interpretation and the European Court of Justice', Academy of European Law Distinguished Lectures AEL 2013/9. available at: http://cadmus.eui.eu [last accessed 18 June 2021), p. 19 ff. See also Filzwieser/Sprung. Dublin 111-Verordnung. p. 89, MN K26 and p. 153, MN KS, who favour a flexible interpretation of the condition that family ties must have existed in the country of origin, albeit only in the context of Anicle 16 cu.mined below. 40 ECtHR, Judgment of 12 July 2001, So 25702/94, Kand T v. Finland, para 150. The interpretation of the ECtHR must be taken into account also for the interpretation of Article 7 of the Chaner within the terms of Article 52(3) of the Chaner. 41 ECiHR, Decision of7 May 2013, No 67429/10, LH. and V.S. v. Belgium, para 73. 42 For an in-depth discussion and funher references see Maiani, Protection of Family Unity, p. 17-20. o Ibid, especially at p. 24.

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2

Dublin 111 Regulation (EU) No 604/2013

legislative intent expressed in recital 14, the non-formalistic approach prevalent under Article 8 ECHR must be followed to all possible extent. Thus, for instance, when assessing the existence of a marriage for the purposes of Article 2(g) in the absence of formal proof, national authorities should follow the flexible criteria developed by the ECtHR rather than applying concepts of 'validity' developed for entirely different purposes in the context of private international law.44 In the same vein, national authorities should accept evidence of family ties more promptly than they have done so far (see below Article 22 MN 3). Failure to do so deprives the criteria based on family ties of their effet utile. More generally, the language used in recital 14 implies that: (I) all family-related provisions of the Regulation should be interpreted as broadly as possible, without undue formalism; (2) whenever the interest to family unity is to be balanced against competing interests (see below Article 17 MN 9-10), considerable weight should be afforded to it; (3) at all stages, the decision-making process should include an evaluation of the impact of prospective decisions on family life.45 12 Letter (h) defines 'relatives', for the purposes of Articles 7 and 8, as the adult aunt, uncle or grandparent of a minor applicant. In this case, it is not required that the family existed in the country of origin as in the context of Article 2(g) (see above MN 8 and below Article 8 MN 5).

6. 'Minors' and related definitions Oetten i-k) 13

Independently of marital status, any child below the age of 18 qualifies as a 'minor' under letter (i) and is protected, in particular, by the best interest principle (see below Article 6 MN 4). 46 Any minor present in a Member State and not accompanied by a 'responsible' adult according to local law and practice is an 'unaccompanied minor', and remains so for as long as this condition persists. 47 Accordingly, he or she must benefit from the guarantees reserved to this class of persons, e.g. the special criteria set out in Article 8 and the appointment of a qualified 'representative' (see below Article 6 MN 5). According to letter (k) the representative must be appointed by the competent bodies and may be a natural person or an organisation, which must in tum designate a person responsible.

7. 'Residence documents' and 'visas' (letters 1-m) 14

For the purposes of the Regulation, and especially of Articles 12 and 19, letter (I) gives an extremely broad definition of 'residence documents'. The definition encompasses any document authorizing stay on the territory of a Member State including documents granted to persons not admitted to residence but 'whose removal cannot provisionally carried out', 48 e.g. potential victims of trafficking during the recovery and

•• Ibid. See also ECtHR, Judgment of 28 May 1985, Nos 9214/80, 9473/81 and 9474/81, Abdulaziz, Cabale5 and Balkandali v. the United Kingdom, para 63. On the distinction between recognizing a religious marriage and accepting it as a basis for the existence of 'family life" see ECtHR, Decision of 27 August 2013, No 40524/10, Mohammed HIWOn v. the Netherlanch and Italy, para 73. For a less clear position see ECtHR, Decision of 8 December 2015, No 60119/12, ZH. and R.H. v. Switzerland, para 44 ff. See also, however, the Concurrent Opinion of Judge NicolaolL 45 For an in-depth discussion see Maiani, Protection of Family Unity, p. 19-20. 46 On age assessment see Vedsted-Ha.n.sm, Asylum Procedures Directive 201J/32/EU, Article 25 MN 7. 47 See by analogy ECJ, A. and S., C-550/16, EU:C:2018:248, para 36-38. To the difference of the Asylum Qualification Directive 2011/95/EU at issue in that judgment, the Dublin Regulation does indicate the moment in time at which minority is relevant see below Article 7 MN 3. 48 Commission Proposal, COM(2001) 447, p. 10.

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reflection period foreseen by applicable international standards.49 Only the categories of documents expressly indicated are excluded from the definition: visas (see immediately below) and documents authorizing stay pending the examination of application for asylum or for a residence permit. 50 For the purposes of Article 12, the definition of 'visa' covers three distinct categories 15 of authorizations: 'short stay' and 'long stay' visas, i.e. authorisations for entry in view of an intended stay of less or more than three months respectively, as well as 'airport transit visas', i.e. authorisations to transit through the international areas of Member State airports. These definitions, which are autonomous from those of the Visa Code Regulation (EC) No 810/2009, all presuppose a formal decision and do not cover mere toleration of irregular entry, be it in an exceptional situation of mass influ.x_;i 8. 'Risk of absconding' (letter n) The definition of a 'risk of absconding' given by letter (n) is identical to that of 16 Article 3(7) of the Return Directive 2008/115/EC. 52 Under the definition, and subject to the limits discussed below under Article 29 MN 1 and 4, it is up to the Member States to define what a 'risk of absconding' is. However, before detention may be ordered under Article 28, binding provisions of national law must define the objective criteria that will guide case-by-case risk assessments.53

CHAPTER II GENERAL PRINCIPLES AND SAFEGUARDS Article 3 Access to the procedure for examining an application for international protection I. Member States shall examine any application for international protection by a

third-country national or a stateless person who applies on the territory of any one of them, including at the border or in the transit zones. The application shall be examined by a single Member State, which shall be the one which the criteria set out in Chapter Ill indicate is responsible. 2. Where no Member State responsible can be designated on the basis of the criteria listed in this Regulation, the tint Member State in which the application for international protection was lodged shall be responsible for examining it. Where it is impossible to transfer an applicant to the Member State primarily designated as responsible because there are substantial grounds for believing that there are systemic flaws in the asylum procedure and in the reception conditions for applicants in that Member State, resulting in a risk of inhuman or degrading treatment within the meaning of Article 4 of the Charter of Fundamental Rights of "See l'rei/Hruschka, 'Access to Asylum for Victims of Trafficking under a Human Rights based approach', in: O'Sullivan/Stevens (eds), FortresseJ and Fairness - States, the Law and Access to Refugee Protection (Hart, 2017), p. 271-295. On the applicability of the definition to Duldung-t)-pe residence documents, see Filzwieser/Sprung, Dublin 111-Verordnung. p. 93, MN K44. 10 See also Peers, Dublin Ill, p. 351. 51 ECJ, Jafari, C-646/16, EU:C:2017:586, para 40 ff. The reasoning adopted by the Court also applies, in our view, to 'residence documents' under Article 2(1). ;i For in-depth analysis see above Lutz, Return Directive 2008/115/EC, Article 3 MN 22-23. 53 ECJ, Al Chador, C-528/15, EU:C:2017:213.

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Dublin Ill Regulation (EU) No 604/2013

Art. 3

the European Union, the determining Member State shall continue to examine the criteria set out in Chapter III in order to establish whether another Member State can be designated as responsible. Where the tnnsfer cannot be made punuant to this paragraph to any Member State designated on the basis of the criteria set out in Chapter III or to the fint Member State with which the application was lodged, the determining Member State shall become the Member State responsible. 3. Any Member State shall retain the right to send an applicant to a safe third country, subject to the rules and safeguards laid down in Direci.ive 2013/32/EU. Content mn. I. Scope of application of the Regulation (Article 3(1 ))............................. I II. The default responsibility criterion (Article 3(2), first subparagraph) 6 III. 'Impossibility' to transfer due to systemic deficiencies in the responsible State (Article 3(2), second and third subparagraphs)....... 7 IV. Safe third countries (Article 3(3)) ............................................................... 17

I. Scope of application of the Regulation (Article 3(1)) Article 3( 1) defines the scope of application and the chief purposes of the Regulation. For the Regulation to apply, a request for international protection has to be lodged by a third-country national in the territory of a Member State (see above Article 2 MN 2-3 and Article 1 MN 6). This expressly includes applications made at the border or in transit zones. By contrast, applications lodged abroad (e.g. in embassies) are excluded from the scope of the Regulation. 2 In Kastrati, the Court held that the applicability of the Dublin II Regulation (EC) No 343/2003 'presuppose[d] the existence of an [... ] application which the Member State responsible must examine, is in the process of examining or on which it has already taken a decision'. It concluded that the withdrawal of the application, before any Member State had taken charge of it and absent a new application, entailed the inapplicability of the Regulation. 54 This interpretation no longer holds under the Dublin III Regulation (EU) No 604/2013, which expressly provides for take back transfers even when the application is withdrawn and no new application is lodged (see below Article 18 MN 11 and Article 24 MN l; on the definition of withdrawal, see above Article 2 MN 6). 3 The Dublin III Regulation (EU) No 604/2013 is inapplicable to beneficiaries of international protection who move to another Member State and lodge an application there. 55 This conclusion is based on a literal argument: under Article 18 only persons whose application for international protection is pending, has been with drawn or rejected may be subjected to a 'take back' transfer. There is also a systematic argument: Article 33(2)(a) of the Asylum Procedures Directive 2013/32/ EU treats the granting of 'international protection' by another Member State as an independent inadmissibility ground. 56 Given that Dublin is inapplicable to their case, beneficiaries of protection may be requested to return to the State that granted them 1

"'ECJ, Kastrati, C·620/10, EU:C:2012:265, para 45. 55 ECJ, Muse Ahmed, C-36/17, EU:C:2017:273. 56 See Vedsted-Hansen, Asylum Procedures Directive 2013/32/EU, Anide 33 MN 3. Ireland applies the former Asylum Procedures Directive 2005/85/EC, whose Article 25 only mentions the granting of 'refugee status' as ground of inadmissibility. In light of the objective to prevent secondary movements, the Coun

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status based on Article 6(2) of the Returns Directive 2008/115/EC. If they refuse, however, they may only be sent back to that State on the basis of bilateral readmission arrangements if applicable (see below Article 24 MN 4). The Commission proposes now to amend these rules and fully include beneficiaries of protection in the scope of the Dublin system as a tool to curb 'unauthorised movements'. 5i To the extent that the problem exists, ensuring that all Member States fully discharge their responsibilities to those to whom they grant protection would be a far more principled and effective solution. When an application meeting the criteria of Article 3(1) is lodged, the Member States 4 are placed under a duty to 'examine' it (see below Article 18 MN 7-11), without prejudice to their right to send the applicant to a safe third country (see below MN 17). This reflects the main objective of the Regulation, namely to guanntee access to a fair and effective status determination procedure. 58 Article 3(1) further emphasizes that the examination must be carried out by a 5 'single Member State, which shall be the one which the criteria set out in Chapter III indicate is responsible'. This also reflects the objectives of the Regulation, in particular the objective of preventing applicants from punuing their application in more than one Member State and from being able to &eely choose the responsible State (see above Article I MN 3). The reference to a 'single Member State' must not be taken too literally, however. On the one hand, any Member State with which an application is lodged may examine it even if it has already been examined and rejected by another State (see below Article 17 MN 3). On the other hand, any application lodged by a person having already had a previous application examined by a Member State must be regarded as a new application, and therefore must be examined afresh, if the conditions for cessation of responsibility are met (see below Article 19 MN 3-8). As for the responsibility criteria, it is true that Chapter III includes most of them. However, quite apart from the fact that the criteria are open to derogations (see below Article 17), at least two responsibility criteria lie outside of Chapter III (see below MN 6 and Article 16). Furthermore, several other provisions found outside of Chapter III of the Regulation provide for the transfer of responsibility or otherwise influence its allocation (see in particular Articles 19-25, 28 and 29, see Articles 19 MN l and 21 MN 1-5).

II. The default responsibility criterion (Article 3(2), first subparagraph) Article 3(2)(1) contains the default responsibility criterion formerly provided 6 for in Article 13 of the Dublin II Regulation (EC) No 343/2003: where no Member State can be designated on the basis of all the other criteria listed in the Regulation, the State responsible is the fint one where an application has been lodged. The fact that the provision was moved - unaltered - up to Article 3 does not change its hierarchical place below all the other responsibility criteria, as its wording clearly indicates.

has however interpreted away this textual difference: see ECJ, M.S, M. W. and G.S., C-616/19, EU: C:2020:1010. s7 See Commission Proposal, COM(2020) 610, p. 26, recital 38 and Article 26 para I letter c). so Peers, Dublin III, p. 351.

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III. 'Impossibility' to transfer due to systemic deficiencies in the responsible State (Article 3(2), second and third subparagraphs) 7

8

9

10

11

The Dublin system operates on the basis of the presumption that all Member States are 'safe' for the applicants (see recital 3 of the preamble). This presumption is in tum based on the international obligations common to the Member States: all 31 Dublin States have ratified the key universal and regional instruments for the protection of refugees and human rights and may in principle be presumed to abide by them. 59 Additionally, reference is often made to the presumption that the responsible State will comply with the EU Directives on asylum, which are meant to both flesh out the relevant international standards and lay down autonomous protection standards. 60 This line of reasoning rests on the same grounds as the argument that Member States will respect their international obligations. Care must however be exercised, since not all the States participating in the Dublin system have subscribed to the same EU asylum standards (see above Article 2 MN 5). All such presumptions, which refer to an idealized general situation in the responsible State, are rebuttable. Indeed, they must be rebuttable on the basis of systemic or individualized risks, if the human rights standards set by relevant international law and EU primary law are to be respected. 61 One instance in which the presumption must be considered as being rebutted, and the transfer to the State primarily designated as responsible 'impossible' (recte: illegal), is explicitly set out in the Regulation. According to Article 3(2)(2), that is the case when there are substantial grounds for believing that there are systemic flaws in the asylum procedure and in the reception conditions for applicants in that Member State, resulting in a risk of inhuman or degrading treatment. This provision codifies the dictum of the European Court of Justice in the case of N.S. but there are textual discrepancies between its wording and the relevant passages of the judgment. According to N.S., transfer is precluded when the Member States 'cannot be unaware that systemic deficiencies in the asylum procedure and in the reception conditions . . . amount to substantial grounds for believing' that the applicant would face a real risk of ill-treatment.62 By contrast, Article 3(2) textually requires there to be 'substantial grounds for believing that there are systemic flaws[ ... ) resulting' in a risk of ill-treatment, and makes no mention at all of the requirement that the first State 'cannot be unaware' of such flaws. The difference could potentially be significant but as the legislative intention was ostensibly to codify N.S. rather than to override or alter it, Article 3(2) should be interpreted in line with N.S. regardless of said discrepancies. 63 The concept of 'systemic deficiency' or 'flaws' appears in a number of judgments related to the Dublin system or other instruments of the Area of Freedom, Security and Justice, but is nowhere defined dearly. The Court seems to associate it to 'major ~9 ECJ, N.S. and others, C-411/10, EU:C:2011:865, para 78; ECtHR. Judgment of 21 January 2011, No 30696/09, M.S.S. v. Belgium and Greece, para 345. Inter-state trust, in this form, is not unique to the relation between Member States in the context of the Dublin system: see Battjes, European Asylum Law and International Law (Brill, 2006), para 515. 60 See e.g. ECtHR. Judgment of 21 January 2011, :No 30696/09, M.S.S. v. Belgium and Greece, para 343; ECJ, C.K. and others, C-578/16 PPU, EU:C:2017:127, para 70. 61 See in particular ECJ, N.S. and others, C-411/10, EU:C:2011:865, para 99-105: ECtHR. Decision of 7 March 2000, No 43844/98, T.I. v. United Kingdom. 62 ECJ, N.S. and others, C-411/10, EU:C:2011:865, operative part . .., ECJ, /awo, C-163/17, EU:C:2019:218, para 86. See also Filzwieser/Sprung, Dublin 111-Verordnung. p. 99, M:N K12 and p. 100, MN Kl3; Peers, Dublin 111, p. 352.

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operational problems', or 'deficiencies, which may be systemic or generalised, or which may affect certain groups of people'.64 Scholarly opinion ranges from holding that only a complete failure of the asylum system as observed in Greece at the time of M.S.S. and N.S. qualifies as 'systemic flaw', to holding that it is synonymous with a failure or lacuna making a risk of ill-treatment merely 'predictable'.65 As we understand it, the test that the ECJ confusingly articulates is simultaneously linked to human rights protection and to efficiency considerations derived from the principle of mutual trust underpinning the Dublin system and the whole CEAS. 66 In this view, the notion of 'systemic deficiencies' is meant to capture risks deriving from dysfunctions that are readily ascertainable and conversely to exclude risks that can only be established on the basis of a thorough caseby-case assessment. 67 This interpretation of the Court's position is borne out by the requirement, laid down in the N.S. judgment and not explicitly replicated in the Regulation, that transfers are precluded when Member States 'cannot be unaware' of the deficiency, based on dependable field reports enabling them to 'assess the functioning of the asylum system'. 68 In this sense, albeit in our view much too restrictively, Advocate General Jiaskinen has later summarized the position as follows: 'the evidential standard is set out to the point where it has become notorious that asylum seekers cannot be transferred to the Member State concemed'.69 Still, save in the most extreme situations. some consideration of individual circumstances will always be necessary. Indeed, the very question of whether prospective ill-treatment reaches the threshold of inhuman or degrading treatment largely hinges on individual circumstances.70 It is important to underscore that Article 3(2) merely identifies one of many classes of 12 situations where transfer is precluded. After the unfortunate episode of the Abdullahi judgment," which suggested that only risks stemming from systemic flaws were invokable against transfers and put EU Law in the unthinkable position of falling below the ECHR minimum, 72 the European Court of Justice has retraced its steps. It is now settled case-law both in Strasbourg and Luxembourg that any real riak of inhuman or degrading treatment - be it linked to systemic deficiencies in the responsible State, to illness. or to any other general or individual circumstance - ban the execution of the transfer. 73

Due to this readjustment of the case-law, the question of what constitutes a 'systemic 13 flaw' for the purposes of Article 3(2) has lost a great part of its salience. Not all of it, however. Other categories of risk than those contemplated by Article 3(2) may act as a bar on transfers, but they do not trigger the application of Article 3(2) itself. Instead, the Member State confronted to such obstacles will have to suspend the transfer, and in most cases assume responsibility due to the expiration of the relevant deadlines, or else apply the so-called 'sovereignty clause' to the same effect (see below Article 17 MN 5-8).74 64

See e.g. EC}, /awo, C-163/17, EU:C:2019:218, paras 83 and 90.

For a summary of these positions, and the presentation of the most liberal among them. see Lilbbe. 'Systernische Mangel" (abridged version in English: Lilbbe, 'Systemic Flaws'). 66 ECJ, N.S. and others, C-411/10, EU:C:2011:865, paras 75-86. More broadly on mutual trust: Maiani/ Migliorini, One Principle to Rule them All?. 67 See also Vedsted-Hansen, 'Reception Conditions as Human Rights', in: ChetaiVDe Bruycker/Maiani (eds), The New European Refugee Law, p. 317, p. 342 f[ 61 ECJ, N.S. and others, C-411/10, EU:C:2011:865, paras 90-92, emphasis provided. 69 AG JUskinen, Puid, C-4/11, EU:C:2013:244, para 61. 70 ECtHR. Judgment of 12 October 2006, No 13178/03, Mubilanzila Maye/ca and Kaniki Mitunga v. Belgium, para 48; ECtHR, Judgment of 4 November 2014, No 29217/12, Tarakhel v. Switzerland, para 94. 71 ECJ, Abdullahi, C-394/12, EU:C:2013:813, para 60. See Peers, Dublin III, p. 353. 12 ECtHR. Judgment of 4 :-lovember 2014, No 29217/12, Taralchel v. Switzerland, para 104. 73 ECJ, C.K. and others, C-578/16 PPU, EU:C:2017:127; ECJ. Jawo, C-163/17, EU:C:2019:218, para 86. 7• See e.g. Filzwicser/Sprung, Dublin lll-Verordnung. Article 17 MN K6 in fine. 65

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By contrast, when the lruufer is 'impossible' under Article 3(2), the determining State must 'continue to eumine the aiteria of Chapter III in order to establish whether another Member State can be designated as responsible'. The N.S. judgment, in whose light Article 3(2) must be read and applied (see above MN 10), further clarifies two aspects. First, the responsibility of other Member States may only be established under the criteria 'following' the one that was originally applied. 75 This is because in the scheme of the Regulation, each criterion may identify only one Member State at a time76 and 'is exhausted on its application' so that it cannot be applied twice.n Secondly, the Court has held that the determining Member State has a duty to apply the sovereignty clause of Article 17(1) when continuing to apply the criteria would 'worsen a situation where the fundamental rights of that applicant have been infringed by using a procedure for determining the Member State responsible which takes an unreasonable length of tiine'. 78 15 Authoritative commentators have favourably received the codification of the solution devised by the Court.i9 For our part, we would note that this solution is atremely complex and indeed inferior to the alternative of simply applying the sovereignty clause when transfer is barred: first, it delays access to status determination procedures, contradicting the key objective of celerity underpinning the Dublin system (see above Article I MN 3); second, it rests on the use of very open-ended wording (e.g. 'unreasonable length of time') and may thus give rise to widely divergent interpretations and practices. In light of these shortcomings, it is perhaps useful to point out that even when transfer is 'impossible' within the meaning of Article 3(2), and even before the 'unreasonable length of time' elapses, it is open to the determining State to apply the sovereignty clauseBD and to ensure in this way swift access to status determination (see also below Article 17 MN 17). 16 Article 3(2)(3) complements the rules and principles laid down in Article 3(2)(2) and in the N.S. judgment. In order to ensure that access to status determination is guaranteed in each and every case, it expressly stipulates that responsibility lies with the State that is conducting responsibility determination when the transfer to any other State designed by the criteria, including the default criterion examined above at MN 6, is 'impossible'. 81

14

IV. Safe third countries (Article 3(3)) 17

Article 3(3) reserves the right of any Member State to send the applicant to a safe third country, subject to the 'rules and safeguards laid down' in the Asylum Procedures 75 ECJ, N.S. and others, C-411/10, EU:C:2011:865, para 96; AG Cruz Villal6n, Abdullahi, C-394/12, EU: C:2013:473, paras 70 ff. 76 Indeed, all the criteria that are potentially applicable to more than one Member State in the same case offer supplementary criteria in order to decide which State is responsible: the best interest of the child (Article 8), the consent of the persons concerned (Articles 9, 10 and 16), or the various criteria laid down in Anicles 12(3) and 13(2). Article 13(1) only refers to a singular evenl, namely irregular entry in the lint Member State. 77 AG Cruz Villal6n, Abdullahi, C-394/12, EU:C:2013:473, para 73. This does not apply, of course, to situations where a claim is lodged after the cessation of previous responsibilities (see below Article 19). 71 EC), N.S. and others, C-411/10, EU:C:2011:865, paras 96-98; ECJ, Puid, C-4/11, EU:C:2013:244, para 35. 19 Filzwieser/Sprung. Dublin Ill-Verordnung. Article3 ~ K13. 80 ECJ, N.S. and others, C-411/10, EU:C:2011:865, para 107 and operational part ('subject to the right itself to examine the application'). 11 Compare with ECJ, N.S. and others, C-411/10, EU:C:2011:865, para 107, which lacks this specification.

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Directive 2013/32/EU. 82 The associated EFI'A States may not be considered as 'third States' in this context (see above Article 1 MN 6). 'Any' Member State means that removal to a safe third country is a course open both to the determining State, which could opt for it instead of a Dublin transfer, and to the responsible State upon take charge or take back, which can thus discharge in this manner its obligation to 'examine' the application. 83 It is unclear whether the reference to the Asylum Procedures Directive 2013/32/EU 18 implies that the Member States that are not bound by it must nonetheless apply its 'rules and safeguards' on safe third countries. On the one hand, this would hardly amount to nullif)ing their 'opt out' from the Directive, or the fact that they are in general not bound by it. Accordingly, the argument that we have used in support of the conclusion that the 'opt out' and associate States are not required by Article 2(d) to act in accordance with the recast EU Directives does not apply here (see above Article 2 MN 5). On the other hand, the reference made by Article 3(3) to 'rules and safeguards' is less precise, and expressed in considerably Jess imperative terms than the reference to the Asylum Reception Conditions Directive 2013/33/EU made by Article 28(4). Accordingly, the conclusion that Article 28(4) 'incorporates' the standards of this Directive in the body of the Dublin III Regulation (EU) No 604/2013 does not necessarily apply here (see below Article 28 MN 5).

Article 4 Right to information I. As soon as an application for international protection is lodged within the meaning of Article 20(2) in a Member State, its competent authorities shall inform the applicant of the application of this Regulation, and in particular of: (a) the objectives of this Regulation and the consequences of making another application in a different Member State as well as the consequences of moving from one Member State to another during the phases in which the Member State responsible under this Regulation is being determined and the application for international protection is being eumined; (b) the criteria for determining the Member State responsible, the hierarchy of such criteria in the different steps of the procedure and their duration, including the fact that an application for international protection lodged in one Member State can result in that Member State becoming responsible under this Regulation even if such responsibility is not based on those criteria; (c) the personal interview pursuant to Article S and the possibility of submitting information regarding the presence of family members, relatives or any other family relations in the Member States, including the means by which the applicant submit such information; (d) the possibility to challenge a transfer decision and, where applicable, to apply for a suspension of the transfer; (e) the fact that the competent authorities of Member States can exchange data on him or her for the sole purpose of implementing their obligations arising under this Regulation;

can

82

83

See above Vedsted-Hansen, Asylum Procedures Directive 2013/32/EU, Articles 38-39. ECJ, Mirza, C-695/15, EU:C:2011:865, paras 37 ff.

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(0 the right of access to data relating to him or her and the right to request that such data be corrected if inaccunte or be deleted if unlawfully processed, as well as the procedures for exercising those rights, including the contact details of the authorities referred to in Article 35 and of the national data protection authorities responsible for bearing claims concerning the protection of personal data. 2. The information referred to in paragraph 1 shall be provided in writing in a language that the applicant undentands or is reasonably supposed to understand. Member States shall use the common leaflet dnwn up punuant to paragraph 3 for that purpose. Where necessary for the proper undentanding of the applicant, the information shall also be supplied onlly, for eumple in connection with the personal interview as referred to in Artide 5. · 3. The Commission shall, by means of implementing acts, dnw up a common leaflet, as well as a specific leaflet for unaccompanied minors, containing at least the information referred to in paragraph 1 of this Artide. This common leaflet shall also indude information regarding the application of Regulation (EU) No 603/2013 and, in particular, the purpose for which the data of an applicant may be processed within Eurodac. The common leaflet shall be established in such a manner as to enable Member States to complete it with additional Member State-specific information. Those implementing acts shall be adopted in accordance with the eumination procedure referred to in Article 44(2) of this Regulation.

The right to information is 'central to procedural fairness'. 84 The ECtHR has stressed, in particular, that 'the right to obtain sufficient information' is key to accessing asylum procedures and asserting further rights therein. 85 In this perspective, Article 4 (l) of the Dublin Ill Regulation (EU) No 604/2013 lays down a detailed list of the aspects on which the applicant must be informed 'as soon as' his or her application is lodged in a Member State (see below Article 20 MN 2). It lists the key elements of the Dublin system, including the objectives of the Regulation (lit. a), the criteria and the course of the procedure (lit. b), the personal interview and information on the family situation (lit. c - see also below Article 5), the possible appeal against a Dublin decision (lit. d - see also below Article 26 MN 5 and Article 27), the exchange of data between Member States (lit. e - see also below Article 31, 32 and 34) and data protection including the right to information regarding the transfer of data (lit. O. The right to information also concerns 'the fact that an application for international protection lodged in one Member State can result in that Member State becoming responsible under that regulation, even if such responsibility is not based on those criteria.'86 • As evidenced by Article 4(3), which indirectly requires the provision of information on the Eurodac system, the list is not exhaustive. 2 The information must be provided in writing 'in a language that the applicant understands or ill reasonably supposed to undentand'. 87 To this end, Member States have the obligation to use the common leaflets drawn up by the Commission in conformity with Article 4(3) - one for applicants generally, the other for unaccompanied minors. 88 The common leaflets must allow for the inclusion of information specific

1

See ECRE, Comments on Regulation (EU) No 604/2013, p. 13. ECtHR, Judgment of 23 February 2012, No 27765/09, Hirsi /amaa and others v. Italy, para 204. ""ECJ, l'athi, C-56/17, EU:C:2018:803, para 52. 87 For analysis see above Tsourdi, Asylum Reception Conditions Directive 2013/33/EU, Article 5 MN 11-12. See also below Article 5 MN 6 and Article 26 MN 5. 118 See the Dublin Implementing Regulation (EC) No 1560/2003, Annexes X and XI. See also the information leaflets on Eurodac procedures in Annexes XII and XIII. 84

•5

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to each Member State, and ought to be translated in a sufficient number of languages if the requirements of Article 4(2) itself are to be respected. Article 4(2)(2) lays down a further obligation to supply the information orally, e.g. 3 during the personal interview, '[w]hen necessary for the proper understanding of the applicant' (see also below Article 5 MN 2).89 The binding character of the obligation and its procedural importance has been stressed on several occasions by the ECJ. 90

Article 5 Personal interview I. In order to facilitate the process of determining the Member State responsible, the determining Member State shall conduct a personal interview with the applicant. The interview shall also allow the proper understanding of the information supplied to the applicant in accordance with Article 4. 2. The personal interview may be omitted if: (a) the applicant has absconded; or (b) after having received the information referred to in Article 4, the applicant bas already provided the information relevant to determine the Member State responsible by other means. The Member State omitting the interview shall give the applicant the opportunity to present all further information which is relevant to correctly determine the Member State responsible before a decision is taken to transfer the applicant to the Member State responsible punuant to Article 26(1). 3. The personal interview shall take place in a timely manner and, in any event, before any decision is taken to transfer the applicant to the Member State responsible pursuant to Article 26(1). 4. The personal interview shall be conducted in a language that the applicant understands or is reasonably supposed to understand and in which he or she is able to communicate. Where necessary, Member States shall have recoune to an interpreter who is able to ensure appropriate communication between the applicant and the person conducting the personal interview. 5. The personal interview shall take place under conditions which ensure appropriate confidentiality. It shall be conducted by a qualified person under national law. 6. The Member State conducting the personal interview shall make a written summary thereof which shall contain at least the main information supplied by the applicant at the interview. This summary may either take the form of a report or a standard form. The Member State shall ensure that the applicant and/or the legal advisor or other counsellor who is representing the applicant have timely aa:ess to the summary. Content I. II. III. IV. V.

General remarks.............................................................................................. Goals and content of the interview (Article 5(1 )) ................................... Cases in which the interview may be omitted (Article 5(2))................ Conduct of the interview (Article 5(3)-(5)) ............................................. Written summary of the interview (Article 5(6))....................................

mn. I 2

4 5 7

"On the importance of informing the applicants both in writing and orally, see )RS Europe, Protection Interrupted, p. 31. "'' See EC), Mengesteab, C-670/16, EU:C:2017:587, paras 86 and 87 and ECJ, Fathi, C-56/17, EU: C:2018:803, paras 48 and 52.

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I. General remarks 1

Article 5 gives the applicant the right to be personally interviewed in the Dublin procedure. This right is closely linked to the right to information (see above Article 4), to the obligation to collect information for the determination of responsibility91 and to the right to an effective remedy (see below Article 27). Its introduction is part and parcel of a generalized strengthening of procedural guarantees in the Dublin procedure. 92

II. Goals and content of the interview (Article 5(1)) 2

The interview foreseen by Article 5 serves both the public interest in efficient and accurate responsibility determination and the protection of the private interests involved. As expressly stated by Article 5(1), the interview is meant to 'facilitate' responsibility-determination, as it helps to establish the relevant facts for the Dublin procedure. In this context, the applicant must be given the opportunity to provide information 'regarding the presence of family members, relatives or any other family relations in the Member States' as implied by recital 18 and Article 4(l)(c). Furthermore, as also explicitly provided for by Article 5(1 ), the interview must 'allow the proper understanding of the information supplied [... ] in accordance with Article 4'. This implies that the authorities have a duty to ascertain, during the interview, whether the applicant has properly understood such information and if necessary to supply it orally. 3 More generally, and in line with general principles of EU Law, Article 5 must be interpreted as giving the applicant the right 'to make known his views effectivety' during the interview,93 including on matters such as his or her health condition as well as his or her objections to being transferred to a particular Member State.

III. Cases in which the interview may be omitted (Article 5(2)) 4

Paragraph 2 includes a closed list of the situations in which an interview may be omitted. As these are exceptions to a general rule, they must be interpreted strictly.94 The interview may be omitted, first, if the applicant 'has absconded' (Article 5(2)(a)). This provision is intended to make responsibility determination possible even when the applicant renders a timely interview impossible through his or her behaviour. In this perspective, and without prejudice to the applicant's right to 'make known his views effectively' through other means, a Member State is not necessarily required to reschedule the interview for an applicant who belatedly reports back. 95 By contrast, Article S(l)(a) may not be applied as a means to 'sanction' applicants who have absconded in the past but are available for the interview in a timely manner. The second ground for omitting the interview is that the applicant has 'already provided the information relevant to determine the Member State responsible by other means'. If interpreted and applied broadly, this provision risks becoming the rule rather than the exception. In order to avoid such a result, the expression Fathi, C-56/17, EU:C:2018:803, para 48. Gheze/bash, C-63/15, EU:C:2016:409, para 53. On the henneneulical implications of this strengthening. see para 46-51 of the same judgment. 9 l Stt ECJ, Mukarubega, C-166/13, EU:C:2014:2336, para 42-47. "See e.g. ECJ, Commission v Spain, C-360/11, EU:C:2013:17, para 18. •s Stt Filzwiescr/Sprung. Dublin 111-Verordnung. Anicle 5 MN KJ. ~ 1 ECJ, 92 Stt ECJ,

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'has [... ) provided the information relevant to determine the Member State responsible' must be read strictly: the authorities must be satisfied that all the relevant information in the possession of the applicant has been submitted, e.g. because it has been provided in writing by a representative of the applicant416 When the interview is omitted on this ground, Article 5(2)(b) expressly requires that the applicant be given the opportunity to provide further information by other means.

IV. Conduct of the interview (Article 5(3)-(5)) According to Article 5(3), the interview must take place in a 'timely manner and, in S any event, before any [transfer) decision is taken'. This leaves considerable scope to Member States. However, the timeliness requirement indicates that the interview should not be conducted too late - e.g. immediately before the decision, at a moment when the authorities are potentially already set on a given course of action97 - or too early - i.e. at a time when the applicant still has no potential outcomes to comment upon. The interview must furthermore be conducted in a language that the applicant 6 'understands or is reasonably supposed to understand and in which he or she is able to communicate', if needed with the assistance of an interpreter able to ensure 'appropriate communication'.98 It must take place under conditions ensuring 'appropriate confidentiality' and be conducted by a 'qualified person'. As is apparent from the wording chosen, Member States retain considerable discretion on these aspects. For the interview to fulfil its functions, they must nonetheless ensure appropriate communication as well as appropriate interaction, in a climate of trust and respect. Further conditions for the conduct of the interview may stem from other provisions of the Regulation as well as from international standards (see e.g. below Article 6 MN 4).

V. Written summary of the interview (Article 5(6)) The main information supplied by the applicant must be summarized in writing by 7 the national authorities. The latter may use a 'standard form' for this purpose, although of course such a form must leave sufficient flexibility for individual circumstances and views to be included (see above MN 3). The written summary enables the authorities to fully respect the applicant's right to be 8 heard. As the ECJ has stressed, this right requires them 'to pay due attention to the observations ... submitted .... examining carefully and impartially all the relevant aspects of the individual case and giving a detailed statement of reasons for their decision'.99 Article 5(6) also requires that the applicant or his counsel be granted 'timely access' to the summary. As Steve Peers has observed, access should be granted before the decision is taken, to prevent the adoption of decisions based on incorrect information. 100

"" Ibid., Anide 5 MN K4. See ECRE. Comments on Regulation (EU) No 604/2013, p. 14; Filzwiescr/Sprung, Dublin IIIVerordnung. Anide 5 MN KJ. 90 This standard is normally employed concerning the right to information (see Anicle 4 MN 2 and Article 26 MN 5). It is remarkably less favourable than the standard contained in Anicle 15 of the Asylum Procedures Directive 2013/32/EU where the applicant has a right to an interview in his or her 'preferred language' or 'in another language which he or she understands.' 99 See ECJ, Mu/carubega, C-166/13, EU:C:2014:2336, para 48. 100 Peers, Dublin Ill, p. 356. 91

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Dublin l/1 Regulation (EU) No 604/2013

Art. 6

Article 6 Guarantees for minors I. The best interests of the child shall be a primary consideration for Member States with respect to all procedures provided for in this Regulation. 2. Member States shall ensure that a representative represents and/or assists an unaccompanied minor with respect to all procedures provided for in this Regulation. The representative shall have the qualifications and expertise to ensure that the best interests of the minor are taken into consideration during the procedures carried out under this Regulation. Such representative shall have access to the content of the relevant documents in the applicant's file including the specific leaflet for unaccompanied minors. This paragraph shall be without prejudice to the relevant provisions in Article 25 of Directive 2013/32/EU. 3. In assessing the best interests of the child, Member States shall closely cooperate with each other and shall, in particular, take due account of the following factors: {a) family reunification possibilities; {b) the minor's well-being and social development; {c) safety and security considerations, in particular where there is a risk of the minor being a victim of human trafficking; (d) the views of the minor, in accordance with his or her age and maturity. 4. For the purpose of applying Article 8, the Member State where the unaccompanied minor lodged an application for international protection shall, as soon as possible, take appropriate action to identify the family members, siblings or relatives of the unaccompanied minor on the territory of Member States, whilst protecting the best interests of the child. To that end, that Member State may call for the assistance of international or other relevant organisations, and may facilitate the minor's access to the tracing services of such organisatiom. The staff of the competent authorities referred to in Article 35 who deal with requests concerning unaccompanied minors shall have received, and shall continue to receive, appropriate training concerning the specific needs of minors. 5. With a view to facilitating the appropriate action to identify the family members, siblings or relatives of the unaccompanied minor living in the territory of another Member State pursuant to paragraph 4 of this Article, the Commission shall adopt implementing acts including a standard form for the exchange of relevant information between Member States. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 44(2). Content I. II. Ill. IV. V.

General remarks.............................................................................................. Drafting history............................................................................................... The best interest principle (Article 6(1 ))................................................... Appointment of a representative (Article 6(2)) ....................................... Factors to be considered in assessing the best interest of the child (Article 6(3)) .................................................................................................... VI. Family tracing (Article 6(4)) ........................................................................ VII. Exchange of relevant information between the Member States (Article 6(5)) ....................................................................................................

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I. General remarks According to Article 24(2) of the EU Charter of Fundamental Rights, the best interests of the child 'must be a primary consideration' 'in all actions relating to children, whether taken by public authorities or private institutions'. The same obligation arises from Article 3 of the United Nations Convention on the Rights of the Child. The application of this principle - both generally and in the migration and asylum context - has been the subject of judicial decisions, 101 international guidelines and publications, 102 and particularly General Comments of the Committee on the Rights of the Child. 103 This standard-setting work has been largely taken up on the EU level. 104 Under the Dublin II Regulation (EC) No 343/2003, the best interests principle was 2 not fully implemented in practice for unaccompanied minors. 105 For accompanied minors, the principle was not even mentioned in any of the provisions of the Regulation or related documents. Actual practice was very much dependent on the features of each national system for the protection of asylum-seeking children. Article 6 was included in the new Regulation to fill this gap. It basically calls for a full incorporation of child protection principles into the Dublin system and constitutes, alongside Article 8 examined below, a significant improvement over the old provisions.

II. Dnfting history As just noted, the 2007 evaluation of the Dublin system clearly stated that the 3 principle of the best interests of the child would need to be clarified and strengthened regarding the situation of unaccompanied minors. 106 The Commission proposal took this theme up and stressed the need to clarify and expand the scope of protection for unaccompanied minors and the willingness 'to lay down further protection standards' by introducing a provision on general guarantees for minors outside of Chapter 111. 107 The provision proposed by the Commission was eventually adopted with some changes.

1• 1 See e.g. ECJ, MA and others, C-648/11, EU:C:2013:367 (on unaccompanied children); ECtHR, Judgment of 4 November 2014, No 29217/12, Taralchel v. Switzerland (on the rights of accompanied children); Bundesverfassungsgericht (German Federal Constitutional Coun), D«ision of 17 September 2014, Case ~o 2 BvR 1795/14 and 2 BvR 939/14 {on accompanied children). 102 In the context of refugee protection see e.g. UJ,;HCR, Protecting the best interests of the child in Dublin Procedures (2015), available at: http://www.refworld.org [last accessed 20 June 2021 I and UNHCR, Guidelines on Determining the Best Interests of the Child (2021), available at: http://www. unhcr.org (last accessed 20 June 2021). 103 The two most pertinent comments by the Committee on the rights of the child (CRC) in this context are: CRC, General Comment No 6 (2005), Treatment of unaccompanied and separated children outside their country of origin. CRC/GC/2005/6 (CRQGC/2005/6), I September 2005 and General Comment No 14 (2013) on the right of the child to have his or her best interests taken as a primary consideration (Article 3 para I), (CRQC/Gal4), 29 May 2013. '°' See e.g. the FRA Handbook on European Law relating to the Rights of the Child (2015), available at: http://fracuropa.eu [la.st accessed 20 June 2021]. •05 See e.g. Commission Report, COM(2007) 299, p. 7. '"" Ibidem. See also the Commission staff working document, SEC{2007) 742, p. 23. A summary of the problems is also to be found in the analysis done by Separated Children in Europe Program (SCEP) and Save the Children, The Implementation of the Dublin II Regulation and the Best Interests of Separated Children (2006), available at: http://childhub.org [wt accessed 20 June 2021(. 107 Commission Proposal, COM(2008) 820, p. 9.

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III. The best interest principle (Article 6( 1)) 4

Article 6(1) reiterates that the principle of the best interests of the child m·ust be a primary consideration with respect to all procedures of the Regulation regarding minors. This is referring inter alia to the detennination of responsibility, potential transfers and the search for family members or relatives as weU as to the exceptional cases in which a minor would be subjected to detention pursuant to Article 28. The wording and drafting history of the provision indicate that such guarantees are not limited to unaccompanied minors. Member States must therefore identify and pursue ways to ensure that the best interests of minors are also given paramount importance in procedures concerning acco~panied minors. This finding is consistent with recital 13, which mentions the key legal provisions for the assessment of the best interests of the child on the international and EU levels: the United Nations Convention on the Rights of the Child and the EU Charter of Fundamental Rights. The recital states, like Article 6( 1), that the best interests of the child must be a primary consideration of Member States when applying the Regulation. It also mentions that the specific procedural guarantees for unaccompanied minors were laid down 'in addition' to the general guarantees for minors on account of 'their specific vulnerability'. Article 12(1) and (2) of the Dublin Implementing Regulation (EC) 1560/ 2003 provide for additional safeguards and call for efficient cooperation between authorities in dealing with unaccompanied minors in Dublin procedures.

IV. Appointment of a representative (Article 6(2))

s

Article 6(2) provides for the obligation of the Member State to ensure that unaccompanied minors are represented and assisted by a representative with the necessary legal and social skills and expertise. The representative must have access to the relevant content contained in the file of the minor. In practice, this would normally mean full access to the file as it is very difficult to judge what document might be irrelevant. Article 6(2) refers to the leaflet contained in Annex XI Dublin Implementing Regulation (EC) 1560/2003. This leaflet also contains Member State-specific infonnation on assistance for unaccompanied minors. 6 The requirement that a representative be appointed for unaccompanied minors is in line with the other relevant acts of the EU asylum acquis. It is explicitly stated that the application of paragraph 2 is without prejudice to the obligations flowing from Article 25( 1) of the Asylum Procedures Directive 2013/32/EU.1 08 A person representing the minor must also be appointed according to the Article 24 Asylum Reception Conditions Directive 2013/33/EU.1 09 In practice, the social needs of the minon have to be taken care of and legal representation has to be ensured. This will often require the appointment of different representatives for these two areas.

V. Factors to be considered in assessing the best interest of the child (Article 6(3)) 7

Article 6(3) refers to considerations that have been genenlly accepted as playing a key role in determining the best interests of the child. It explicitly refers to the family 108

See above Vedsted-Hansen, Asylum Procedures Directive 2013/32/EU, Anicle 25 MN 2.

109

See above Tsourdi, Asylum Reception Conditions Directive 2013/33/EU, Anicle 24 MN 3 f.

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reunification possibilities (a), well-being and the social development of the minor (b) 110 as well as safety and security questions (c)l 11 and - as appropriate, depending on age and maturity - the views of the minor (d). 112 The latter three considerations are also mentioned in recital 13. The provision has a very similar wording to Article 23(2) of the Asylum Reception Conditions Directive 2013/33/EU, 113 but adds an aspect of cooperation between the Member States that is significantly more important in Dublin procedures.

VI. Family tracing (Article 6(4)) Article 6(4) contains a 'family tracing' obligation for Member States where an 8 unaccompanied minor has lodged an asylum application. Family tracing is often very difficult and Member States have little experience in applying effective measures in that respect that also fully take into account the children's rights to privacy and well-being.I 14 Under Article 6(4) tracing is limited to the purposes of identifying the responsible Member State according to Article 8 and to the search for family members, siblings and other relatives of the unaccompanied minor 'on the territory of the Member States'. Member States may resort to the assistance of specialized tracing services. Annex XI of the Dublin Implementing Regulation (EC) 1560/2003 specifically mentions the Red Cross. Article 12(3) of the same Regulation contains additional relevant guidance. Finally Article 6(4) provides for a guarantee for minors that relates to the qualifica- 9 lion and ongoing training of the staff of the authorities of the Member State who deal with Dublin procedures ('requests') that concern unaccompanied minors. Staff dealing with these requests needs to have received training prior to working with requests regarding unaccompanied minors. There is also an obligation to provide for continuing training for these persons.

VII. Exchange of relevant information between the Member States (Article 6(5)) The 'standard form for information exchange on the family, siblings or relatives of 10 an unaccompanied child in a Dublin procedure' referred to in Article 6(5) is to be found in Annex VIII Dublin Implementing Regulation (EC) 1560/2003. The form contains a first part where the requesting state has to fill in the key data of the child and state the reason for the information request. The second part asks for information (if the person is found) on the relationship of the person with the child and for the presumed capacity of the person to take care of the child. It needs to be filled in by the requested State. Additionally, this part must contain information on the entities or persons that have actually helped to locate the person and that could be contacted in the context of the search for solutions and the assessment of the best interests of the child.

110 Sec CRC. General Comment No. 4, Adolescent health and development in the context of the Convention on the Rights of the Child, UN Doc. CRC/GC/2003/4 (2003). 111 See CRC, General Comment No 13, The right of the child to freedom from all forms of violence, UN Doc. CRC/C/GC/13 (2011). 112 Sec CRC, General Comment No 12, The right of the child to be heard, UN Doc. CRC/C/GC/12

(2009) . . 113 Sec above Tsourdi, Asylum Reception Conditions Directive 2013/33/EU, Anide 23 MN 9 ff. 114

See UNHCR, Left in Limbo, p. 75-81.

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Art. 7

Dublin III Regulation (EU) No 604/2013

CHAPTER Ill CRITERIA FOR DETERMINING THE MEMBER STATE RESPONSIBLE

Article 7 Hierarchy of criteria I. The criteria for determining the Member State responsible shall be applied in the order in which they are set out in this Chapter. 2. The Member State responsible in accordance with the criteria set out ia this Chapter shall be determined on the basis of the situation obtaining when the applicant fint lodged his or her application for international protection with a Member State. 3. In view of the application of the criteria referred to in Articles 8, IO and 16, Member States shall take into consideration any available evidence regarding the presence, on the territory of a Member State, of family members, relatives or any other family relations of the applicant, on condition that such evidence is produced before another Member State accepts the request to take charge or take back the person concerned, pursuant to Articles 22 and 25 respectively, and that the previous applications for international protection of the applicant have not yet been the subject of a fint decision regarding the substance. Content mn.

I. Hierarchical ordering of the criteria set out in Chapter III (Anicle 7(1)) .................................................................................................... II. The 'freezing rule' (Ankle 7(2)).................................................................. lll. Relevant evidence for the application of family criteria (Article 7(3))

I 3 6

I. Hierarchical ordering of the criteria set out in Chapter III (Article 7(1)) Chapter III of the Regulation sets out the main responsibility criteria applicable in 'take charge' procedures. 115 For each application, these criteria have to be examined in the order in which they are set out and the 'lower ranking' criteria (i.e. those that come after) only come into consideration if the 'higher ranking' criteria (i.e. those that come first) are inapplicable. The specific wording of the criteria may override this general rule (see below Article 11 MN 4). 2 The rule only applies to the criteria listed in Chapter III. A number of responsibility criteria are to be found outside of this Chapter, and their respective rank must be determined according to their wording and to the general scheme of the Regulation (see above Article 3 MN 6 and 16; see also below Article 16 MN I and

115 The responsibility criteria arc as a rule not applicable in 'take back' procedures. The case-law foresees an exception, based on the principle of sincere cooperation and the protection of family unity for the procedure foresem in Anicle20(5): see ECJ, H. and. R., C-582/17 and C-583/17, EU:C:2019:280, paras 57-62 and 80-83.

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Chp. 23

Article 20 MN 3). 116 It is also worth mentioning here the discretionary clauses, which authorise derogations from the responsibility criteria (see below Article 17), as well as the various provisions that determine the cessation or transfer of responsibility (see below Articles 19 MN 3, 21 MN 1-5, 22 MN 6-9, 23 MN 4, 24 MN 2, 25 MN 2, 28 MN 12 and 29 MN 2-6).

II. The 'freezing rule' (Article 7(2)) The factual circumstances that trigger the application of each criterion, e.g. the 3 admission of the spouse of the applicant as a beneficiary of international protection in a Member State (Article 9), happen at a certain point in time and may then change again. In order to avoid any ambiguities, and also as a means to prevent the applicants from influencing the application of the criteria through their own actions (e.g. concluding a marriage), Article 7(2) stipulates that the situation to be taken into account for applying the criteria is the one existing at the time when the applicant lodged the fint application with a Member State ('freezing rule'). 117 The freezing rule only applies to the criteria of Chapter Ill. Under the provisions 4 found outside of Chapter III, facts occurring after the lodging of the first application may plainly affect or modify responsibility allocation (see the rules on cessation and transfer of responsibility of Articles 19(1), 21(1), 22(7), 23(3), 24(3), 25(2), 28(3)(2) and 29(2); see also Article 16 MN 3 and Article 17 MN 3 and 20). Similar considerations apply to the responsibility-shifting rules laid down in Article 3(2)(2) and (3) (see above Article 3 MN 7 ft): indeed, the 'impossibility' to transfer the applicant to a Member State due to the systemic deficiencies of its asylum system must be judged by the proceeding authority ex nunc, since the purpose of the assessment is to prevent exposing the applicant to inhuman or degrading treatment. 118 The freezing rule can in theory play in favour of the applicant. For instance, an 5 unaccompanied minor turning 18 shortly after lodging his first application still benefits from Article 8 of the Regulation. However, Article 7(2) typically plays against the applicant since it constitutes an additional hurdle against the application of the criteria based on family ties. 119 Indeed, the freezing rule may exclude the applicability of a family criterion, and thus impact family life, on account of purely fortuitous circumstances - e.g. the fact that the applicant has lodged her claim in a Member State mere days before the formal recognition of her spouse as a refugee by another Member State. In such borderline situations, careful consideration must be given to the question of whether human rights obligations or humanitarian considerations require the application of the discretionary clauses (see below Article 17 MN 9 ft). 120

116 Filzwieser and Sprung express this by saying that the rank of what they term 'special responsibility criteria' (i.e. Articles 16, 17, 19(1), 21(1), 22(7), 23(2), 24(2), 25(2), 28(3)(2) and 29(2) of the Regulation) must be decided 'individually" ('individue/1': Filzwieser/Sprung, Dublin 111-Verordnung, Article 7 MN K2). We interpm this to mean 'on the basis of each individual provision', not 'on a case-by-case basis', since determining which criterion prevails if two or more are theoretically applicable is a maner of interpretation that by its nature calls for general answers. 117 In German language literature the expression used is 'petrification principle' (Versteinenmgsprinzip): see Filzwieser/Sprung, Dublin Ill-Verordnung, Article 7 MN K4. 118 See ECtHR, Judgment of 23 May 2007, No 1948/04, Salah Sheelch v. The Netherlands, para 136. 119 For an extensive series of examples, see Council doc. No 12364/09 of 27 July 2009. 1Zil See mutatiJ mutandis Filzwieser/Sprung, Dublin 111-Verordnung, p. 116, MN KIO.

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Art. 1

Dublin Ill Regulation (EU) No 604/2013

III. Relevant evidence for the application of family criteria (Article 7(3)) In order to minimize the adverse effect of the freezing clause on family unity, the Commission originally proposed a significant alteration to it: for the purpose of applying the family criteria, the situation to be taken into account would be the one existing at the moment of the latest application, not the first.1 21 This was eventually rejected, including because such a reform might have encouraged the lodging of multiple applications. 122 Following this, Article 7(3) as adopted has evolved into an evidentiary rule unrelated to and independent from the freezing rule. As said, the latter fully applies to the family criteria of Chapter III. For its part, paragraph 3 ~erely specifies that all relevant evidence is to be taken into consideration 'in view of the application of ... Articles 8, 10 and 16', unless it surfaces after a take charge or take back request has been accepted or a 'first decision regarding the substance of the application' (see below Article 10 MN 2) has been taken. 123 7 The list of the provisions falling within the scope of application of Article 7(3) is under-inclusive as it leaves out two out of four 'Chapter III' family aiteria, namely Articles 9 and 11. Article 11 applies when the members of the same family lodge their applications in the same State simultaneously or at close intervals, and it may have been judged - rightly or wrongly - that the evidentiary problem that Article 7(3) seeb to address is unlikely to arise. In the case of Article 9, by contrast, the omission has no logical explanation 12◄ and might result from a drafting mistake. As it will be seen, contrary to the other family criteria, Article 9 applies regard1ess of whether the family was formed in the country of origin (see above Article 2 MN 10 and below Article 9 MN 2). When the Commission proposed to alter the freezing rule in the sense outlined above at MN 5, the Council immediately excluded Article 9 from the scope of the amendment. This was apparently done in order to avoid giving the applicant the opportunity to choose the responsible State by marrying a beneficiary of international protection there and then lodging a fresh application. 125 When, however, Article 7(3) was transformed into the evidentiary rule it now is, Article 9 was not reincluded in the list. As no reason was given for this, 126 and none is apparent, it is at least arguable that this happened by oversight. Be that as it may, Article 7(3) should arguably also apply to Article 9, against its wording but in line with its objectives. A further argument supporting this conclusion is that the exclusion of Article 9 may lead to differences of treatment in the enjoyment of the right to respect for family life, and that any such distinctions require an objective justification under Article 14 ECHR (see above mutatis mutandis Article 2 MN 10). 6

121

Commission Proposal, COM(2008) 820, Article 7(3). European Parliament doc. A6-0284/2009 of 29 April 2009, p. 15, Amendment 20. 121 Stt also Peers. Dublin Ill, p. 357. Some authors style Article 7(3) as a 'derogation' or 'exception' to Article 7(2) (see e.g. Fihwieser/Sprung. Dublin 111-Verordnung, Article 7 MN K9; Monnet, 'La jurisprudence du Tribunal administntif fMeral en mati~re de transferts Dublin', in: Breitenmoser/Gless/Lagodny (eds), Schengen et Dublin - questions actueUes, p. 359, footnote 88). As noted, however, the two rules have different objects. Furthermore, Article 16 is explicitly included in the scope of paragraph 3 and al the same time it is excluded from the scope of paragraph 2 (see above MN 4). II would be odd to place a provision in the scope of a 'derogation' from a 'rule' that does not apply 10 it. 124 Stt also Fihwieser/Sprung. Dublin 111-Verordnung. Article 7 MN KS. 125 Stt Council doc. 12364/09 of 27 July 2009, p. 17-19, and 12328/09 of 29 July 2009, amendment 10 draft Article 7(3). 12• Stt Council doc. 17167/09 of 16 December 2009, amendment to Article 7(3) and related footnotes. 122

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Art. 8

Chp. 23

Article 8 Minors I. Where the applicant is an unaccompanied minor, the Member Stale responsible shall be that where a family member or a sibling of the unaccompanied minor is legally present, provided that it is in the best interests of the minor. Where the applicant is a married minor whose spouse is not legally present on the territory of the Member States, the Member State responsible shall be the Member State where the father, mother or other adult responsible for the minor, whether by law or by the practice of that Member State, or sibling is legally present. 2. Where the applicant is an unaccompanied minor who has a relative who is legally present in another Member State and where it is established, based on an individual examination, that the relative can take care of him or her, that Member State shall unite the minor with his or her relative and shall be the Member State responsible, provided that it is in the best interests of the minor. 3. Where family members, siblings or relatives as referred to in paragraphs I and 2, stay in more than one Member State, the Member State responsible shall be decided on the basis of what is in the best interests of the unaccompanied minor. 4. In the absence of a family member, a sibling or a relative as referred to in paragraphs I and 2, the Member State responsible shall be that where the unaccompanied minor has lodged his or her application for international protection, provided that it is in the best interests of the minor. 5. The Commission shall be empowered to adopt delegated acts in accordance with Article 45 concerning the identification of family members, siblings or relatives of the unaccompanied minor; the criteria for establishing the existence of proven family links; the criteria for assessing the capacity of a relative to take care of the unaccompanied minor, including where family members, siblings or relatives of the unaccompanied minor stay in more than one Member State. In exercising its powers to adopt delegated acts, the Commission shall not exceed the scope of the best interests of the child as provided for under Article 6(3). 6. The Commission shall, by means of implementing acts, establish uniform conditions for the consultation and the exchange of information between Member States. Those implementing acts shall be adopted in accordance with the examination procedure referred lo in Article 44(2). Content I. IL III. IV.

General remarks.............................................................................................. Family criteria (Article 8(1)-(3))................................................................. Default criterion (Article 8(4))..................................................................... Delegated and implementing provisions (Article 8 (5) and (6)) .........

mn. I 3 7 10

I. General remarks When the applicant is an unaccompanied minor (at the time of lodging her first application (see above Article 2 MN 13 and Article 7 MN 5), responsibility determination follows· the criteria laid down in Article 8. Article 6 of the Dublin II Regulation (EU) No 343/2003, the predecessor provision to Article 8, was styled as 'a type of "Special

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Art. 8

Dublin Ill Regulation (EU) No 604/2013

Code" for unaccompanied minors', containing 'the only criteria applicable to determining the Member State responsible for examining an application lodged by [unaccompanied) minors'. 127 This is no longer entirely true under the new Regulation. When the applicant is an unaccompanied minor, the 'ordinary' criteria laid down in Articles 9, 10, 12 tt> 15 as well as 3(2)(1) are inapplicable. Article 11, by contrast, is applicable by its express stipulations when minor unmarried siblings, unaccompanied by a responsible adult, apply for asylum in the same Member State (see below Article 11 MN 1). Article 3(2) (2) and (3), Article 16,1 28 and Article 17 are also applicable to unaccompanied minors. It goes without saying that like Article 8, all such criteria and rules must be applied in accordance with the best interest of the child (see above Article 6 MN 4). 2 The situation of minon who are accompanied by a responsible adult applying for protection is (rather imperfectly) regulated by Article 20(3), whose aim is precisely to avoid that they become unaccompanied as a consequence of Dublin procedures (see below Article 20 MN 3).

II. Family criteria (Article 8(1)-(3)) 3

When the applicant is an unaccompanied minor, responsibility follows family ties fint and foremost. All the responsibility criteria based on family ties ('family criteria') laid

down in the Regulation define their scope by reference to two parameters: (a) the legal status of the persons present in a Member State at the material time, and (b) the family ties considered. In both respects, the criteria laid down in Article 8(1)-(3) are the widest. As for status, mere 'legal presence' is required, i.e. any form of legal presence contemplated by EU Law or by the national law of the State concemed. 129 While no form of legal stay can be excluded in principle, the best interest criterion presiding over the application of the criteria (see below MN 4) may be used on a case-by-case basis to avoid aberrant results (e.g. attribution to a State where a relative is in mere lawful transit at the moment when the application is lodged by the minor). As for the family relations that are taken into consideration for responsibility allocation, Article 8(1) first mentions 'family members' within the meaning of Article 2(g), as well as siblings - major or minor, married or unmarried (see by contrast below Article 11 MN 1)_1 10 Given that married minors are not 'family members' of their parents according to the Regulation (see above Article 2 MN 9), paragraph l expressly stipulates that they fall under the responsibility of the Member State where the father, mother, other adult responsible or sibling is present when they are not accompanied by their spouse. Article 8(2) further assigns responsibility - for both married and unmarried unaccompanied minors - to the State where a 'relative' under Article 2(h) is present, subject to the explicit condition that it be 'established, based on an individual examination, that the relative can take care of the minor'. 4 The Regulation establishes no fixed hierarchy between these family reunifications options. When more than one is available, the decisive factor is by express provision of Article 8(3) the best interest of the child (see above Article 6 MN 4). This requires a m AG Cruz Villalon, MA and others, C-648/11. EU:C:2013:93, para 58. 128 Article 16 - whose sole purpose is 10 keep or bring together the applicant with a family relation will not normally come into consideration, as the family criteria laid down in Article 8(1 )-(3) are broader in all respects (see below MN 3 ff and Article 16 M!II 9). II may nonetheless be of assistance 10 unaccompanied minors when the application of Article 8(1)-(3) is acluded on account of the freezing rule, which as explained above is inapplicable lo Article 16 (see above Article 7 M!II 4). 129 Filzwieser/Sprung, Dublin 111-Verordnung, Article 8 M!II K4; Swiss Bundesverwaltungsgericht (Federal Administrative Court), Judgment of JO March 2016, BVGE 2016/1, para 4.2. 110 See also Peers, Dublin Ill, p. 358. 1670

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s Chp. 23

case-by-case assessment, due weight being given to the views of the child in accordance with his or her age and maturity. 131 A case-by-case 'best interest determination' is also necessary to decide whether the reunion with a family relation is to take place at all: indeed, all the family criteria set out in Article 8 are only applicable subject to this being 'in the best interest of the minor'. The way in which Article 8(1)-(3) is drafted railes a number of issues. To begin 5 with, while the reunion between the applicant and a family member within the meaning of Article 2(g) is made subject to the proviso that the family already existed in the country of origin, no such condition is explicitly imposed for the reunion between the applicant and a sibling or a 'relative' (see above Article 2 MN 10 and 12). The proviso is also not applicable, on a literal reading of Article 8, if the applicant is a married minor and has to be reunited with the parents or another responsible adult. This is a welcome omission to the extent that it eliminates an obstacle to bringing together a child and a caring person. However, it generates a difference of treatment that has no apparent justification and may lead to bizarre results. This highlights once more the need to apply the 'pre-flight' proviso on a case-by-case basis and not mechanically (see above Article 2 MN 10). The proviso that married minors may be reunited with their parents only if not accompanied by the spouse is also problematic: it may constitute an obstacle in the quest for solutions truly based on the best interest of the child. Furthermore, it does not apply for the reunion between married children and their 'relatives', generating another questionable difference of treatment. Quite apart from faulty drafting, the criteria laid down in Article 8( I )-(2) certainly are more comprehensive than all other family criteria, but they are still insufficient to ensure that the child is placed in the care of his relations in all the circumstances where this might be dictated by human rights obligations, reasons of compassion or appropriate consideration of the best interest of the child. Bad timing (see above Article 7 MN 3-5) may exclude reunification even between a separated child and her mother under Article 8( I). In order to fill the gaps and inconsistencies of Article 8(1)-(3), the competent 6 authorities should bear in mind the true purpose of Article 8 - which is to provide special protection to 'a category of particularly vulnerable persons•m - and seek solutions that fully conform to the best interest of the child, be it through a thoughtful interpretation and application of Article 8 itself (see below MN 7), through the application of Article 16 (see above footnote 128) or through recourse to the discretionary clauses of Article 17. 133

III. Default criterion (Article 8(4)) Article 8(4) lays down the criterion that applies when paragraphs (1)-(3) do not 7 come into consideration, either because no family member, sibling, or relative is legally present in a Member State, or because reunification would not be in the best interest of the cliild. The criterion laid down by Article 8( 4) is that 'the Member State responsible

,i,

For a contrary view, see Filzwieser/Sprung, Dublin lll-Verordnung, p. 123, MN Kll, who contend that if family members are present, there is no need for an individualized assessment to see if it would be in the best interest of the child to reunify her with 'relatives' unless there are specific indications that this might be so. In our view, this contradicts the explicit choice of the legislator not to establish a hierarchy between the possibilities listed in Anicle 8(1)-(3). See also the explicit provisions of Article 12(5) of the Dublin Implementing Regulation (EC) No 1560/2003. On the applicable standards of international and EU primary law concerning 'best interest determinations', see above Anicle 6 MN l and 4. 132 ECJ, MA and others, C-648/11, EU:C:2013:367, paras 54-55. 113 On the use of Anide 17 a.s complement to Anide 8, see Filzwieser/Sprung. Dublin 111-Verordnung. Anide 8 MN Kl 4.

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Art.

s

Dublin III Regulation (EU) No 604/2013

shall be that where the unaccompanied minor has lodged his or her application for international protection, provided that it is in the best interest of the minor'. As with the previous paragraphs, the key consideration is the best interest of the child - in effect, the only decisive consideration under Article 8. 8 According to the MA judgment of the ECJ, when a minor has filed applications in several Member States, Article 8(4) must be interpreted as referring to 'the Member State in which the child is present after having lodged an application there'. 134 For all practical purposes, this amounts to exempting unaccompanied minors from 'take charge' Dublin transfers. m The central inspiration behind the judgment is commendable - ensuring that children, as particularly vulnerable persons, are 'as a rule ... not ... transferred' and thus granted swift access to a status determination procedure. 136 The reasoning of the Court is not particularly persuasive, however. It rests on the premise that current Article 8(4) might in fact be interpreted in two ways: as designating the State where the first application has been lodged, and as designating the State where the last application has been lodged. This is, with respect, an incorrect reading of the Regulation. Under the freezing rule of Article 7(2), all events following the lodging of the first application - including the lodging of a second application - are non-existent for the purpose of applying the criteria of Chapter III, including of course Article 8(4). Accordingly, when Article 8(4) mentions 'the Member State where [... ] the unaccompanied minor has lodged his or her application', this can only mean the State where the first application has been lodged, i.e. the only existing application at the moment when the situation was 'frozen' (see above Article 7 MN 3). 137 In order to achieve the intended interpretive result, the Court could have simply stressed that, while on a plain reading of Article 8(4) the State responsible by default is the one where the first application was lodged, no transfer whatsoever may be carried out - be it a 'take charge' or a 'take back' - in contravention of the principle of the best interest of the child. 9 In a declaration appended to the Dublin III Regulation (EU) No 604/2013, the political institutions agreed to consider amendments to Article 8(4) in light of the judgment in the MA case, which was still expected when the Regulation was adopted. After initially proposing to codify MA, 131 the Commiaion hu reversed its position. In the name of the fight against secondary movements, it now proposes to overturn that ruling by giving responsibility to the State where the application has been 'first registered' subject to a best interest assessment. 139

IV. Delegated and implementing provisions (Article 8 (5) and (6)) 10

The Commission is empowered to flesh out the provisions of Article 8 in several important respects through delegated or implementing acts. The provisions adopted at the time of writing are laid down in Article 12 Dublin Implementing Regulation (EC) 1560/2003. 114

ECJ, MA and othm, C-648/11, EU:C:2013:367, operative part.

m See Filzwieser/Sprung. Dublin lll-Verordnung. Anicle 8 MN K16-KI 7; Peers, Dublin III, p. 359-360. 136 ECJ, MA and othm, C-648/11, EU:C:2013:367, pans 54 and 55. 117 The Coun's statement to the effect that 'Article 5(2) (i.e. Article 7(2) Dublin Ill Rrgulation (EU) No 604/2013) cannot be intended to alter the meaning of (the) criteria' (pan 45) does not seem capable of bringing into question this plain reading of Anicle 8 in conjunction with Anicle 7. Funherrnore, the fact that under such a reading the only application conceivably referred to in Anicle 8(4) is the first one makes the textual argument employed in pan 51 wholly irrelevant. 1311 Commission Proposal, COM(2014) 382. For a discussion see Peers, Dublin Ill, p. 360 ff. 119 Commission Proposal, COM(2020) 610, Article 15(5).

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Art. 10

Chp. 23

Article 9 Family members who are beneficiaries of international protection Where the applicant has a family member, regardless of whether the family was previously formed in the country of origin, who has been allowed to reside as a beneficiary of international protection in a Member State, that Member State shall be responsible for examining the application for international protection, provided that the persons concerned expressed their desire in writing. Article 9 is the highest-ranking responsibility criterion when the applicant is not an l unaccompanied minor. It assigns responsibility to the Member State who has 'allowed to reside' a family member as a beneficiary for international protection (see above Article 2 MN 7). 140 The protection status and the right to stay are the only two elements that must be given at the material time (see above Article 7 MN 3). By contrast, the physical presence of the family member in the concerned State is not required for the criterion to apply. For the purposes of Article 9, the notion of 'family member' applies regardless of 2 whether the family was formed in the country of origin (see above Article 2 MN 10). This privileged treatment may be due to historical reason: the criterion now appearing in Article 9 was the only family criterion foreseen by the 1990 Dublin Convention. While the new family criteria introduced with the Dublin II Regulation (EC) No 343/ 2003 were subjected to the 'pre-flight' proviso, the Council refrained from incorporating the proviso in the old criterion, possibly to avoid a regression in the protection of family unity. Be that as it may, no objective justification for such preferential treatment is given in the text or in the travaux of the Dublin II Regulation (EC) No 343/2003 141 and none is apparent. Under Article 9 as under any other criterion, family ties formed after the applicant has lodged the first application with a Member State are excluded by virtue of Article 7 (see above MN I). For Article 9 to be applicable, the persons concerned must consent in writing. 3

Article 10 Family members who are applicants for international protection If the applicant has a family member in a Member State whose application for international protection in that Member State has not yet been the subject of a first decision regarding the substance, that Member State shall be responsible for eumining the application for international protection, provided that the persons concerned expressed their desire in writing. Article 10 assigns responsibility to the State where, at the material time (see above Article 7 MN 3), a family member of the applicant is present and has a pending application for international protection. The structure is similar to that of Article 9, but the provision is in fact closer to Article 11 from a systemic point of view. Both seek 140 For the position in the Member States that are not bound by the EU Directives and that do not autonomously apply the EU concept of 'subsidiary protection', see above Article 2 MN 8. 141 See Council doc. 6344/02 of 26 February 2002 (no condition that family ties were formed in the country of origin), 8702/02 of 23 April 2002 (introduction of the condition under Article 2; comments to the effect that Article 7 should maintain the same level of protection of Article 4 of the Dublin Convention), and 9305/1/02 of 25 July 2002 (exemption of Article 7 from that condition).

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Art. 11

Dublin III Regulation (EU) No 604/2013

to reunite (Article 10) or keep together (Article 11) families composed of protection seekers, with the dual goal of protecting family life and promoting joint status determination, which is in tum conducive to procedural economy, thorough assessments and consistent decisions (see recital 15). 142 In this perspective, the two provisions complement each other: while Article 11 comes into consideration when family members apply together or at close intervals in the same State, Article 10 may come into play when the dates of the applications are not close enough or when the applicants file their claims in different States (see below Article 11 MN 3). 2 For Article 10 to apply, the claim filed by the family member must 'not yet [have been) the subject of a fint decision regarding the substance'. 143 A positive decision at first instance will preclude the application of Article 10 but in principle trigger the application of Article 9 (see above). As for negative decisions, only a decision On the merits of the claim is capable of precluding the application of Article 10. Negative decisions adopted on grounds other than the absence of a protection need (e.g. the existence of a safe third country) are not decisions regarding 'the substance' of the claim as expressly required by the Regulation. 1'" The same conclusion applies a fortiori to provisional or merely procedural decisions. As for all the family criteria, when the application of Article 10 is excluded, Member States may still bring the concerned persons together by virtue of the discretionary clauses of the Regulation. In particular cases, they may be obliged to do so in order to respect family life within the meaning of Article 8 ECHR and of Article 7 of the Charter (see below Article 17 MN 9 ff. and 21). 3 The definition of family member applied here is the one found in Article 2(g), including the conditions that family ties must have existed in the country of origin. As already noted, this condition should be applied on a case-by-case basis so as to avoid discriminations in the enjoyment of family life (see above Article 2 MN 10). Particular care is required in 'borderline cases' where Article 9 - under which the condition is not applicable (see above Article 9 MN 2) - would have been applicable instead of Article 10 but for an accidental circwnstance (e.g. the family member receives a positive decision on his or her application, but only some days after the applicant's claim has been lodged). To reiterate: the enjoyment of the fundamental right to respect for family life cannot be left to the whims of happenstance. Article 10 is only applicable if the persons concerned express their consent in writing.

Article 11 Family procedure Where several family memben and/or minor unmarried siblings submit applications for international protection in the same Member State simultaneously, or on dates dose enough for the procedures for determining the Member State responsible to be conducted together, and where the application of the criteria set out in this Regulation would lead to their being separated, the Member State responsible shall be determined on the basis of the following provisions:

141

See however Filzwieser/Sprung, Dublin 111-Verordnung. Article 10 MN K4 . .., For an analysis and critique of the rationale behind this proviso, see Maiani, L'unit.! fami/iale et le systeme de Dublin (2006), p. 171 f. 14-1 Compare the wording of Article 10 - in English as well as in other languages ('premiere decision sur le fond'; 'Erstentscheid in der Sache'; 'prima decisione di merito1 - with the tenns of recital 43 and Article 32(3) of the Asylum Procedures Directive 2013/32/EU.

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(a) responsibility for examining the applications for international protection of all the family memben and/or minor unmarried siblings shall lie with the Member State which the criteria indicate is responsible for taking charge of the largest number of them; (b) failing this, responsibility shall lie with the Member State which the criteria indicate is responsible for examining the application of the oldest of them. Subject to Article 20(3), which regulates the situation of unmarried minors accompanying an adult family member, Article 11 applies whenever 'family members' within the meaning of Article 2(g) or 'minor unmarried siblings' apply for protection in the same Member State within the same timeframe. The purpose of the provision is to prevent their separation, in pursuance of the same objectives of Article 10 (see above Article 10 MN I). The slightly enlarged definition of family contained in Article 11 falls short of 2 ensuring that 'family life' within the meaning of the ECHR and of the Charter will be respected in all cases. Therefore, the usual precautions in applying it are required (see above Article 2 MN 9-11) and recourse to Articles 16 and 17 may become necessary in individual cases. The specification that siblings must all be 'minor' and 'unmarried' in order to be kept together is especially problematic in that it allows separation to happen in cases where Article 8 of the Regulation prescribes reunification - i.e. between an unaccompanied minor and his adult and/or married sibling. 145 For the sake of coherence, and in consideration of family unity and the best interest of the child as 'primary considerations' (recitals 14 and 15), an expansive application of Article II should be considered. For Article 11 to apply, the claims to protection must be filed simultaneously or 'on 3 dates dose enough' for a joint responsibility determination procedure to be possible. For this requirement to be fulfilled, the last application must be filed early enough for the determining State to submit a joint take charge request - if any is needed - within the deadlines set by Article 21. The key element is therefore the deadline, and the only relevant criterion is whether a joint procedure is 'possible', not 'expedient'. Therefore, neither the fact that a first take charge request has already been sent for the first applicant, nor the fact that the requested State has already replied, nor the fact that more generally the various Dublin procedures are at a different stage are sufficient to preclude the application of Article 11. Accepting this would: (a) make the scope of application of Article l l dependent on how fast (or hasty) the competent administration is in handling the first request, and (b) reduce the scope of Article II in a manner inconsistent \\ith the objectives set out in recitals 14-16 of the prearnble. 146 The last condition that must be fulfilled for Article 11 to apply is that 'the applica- 4 tion of the [other) criteria set out in this Regulation' would lead to separation. This phrase determines the role and position of Article l l vis-a-vis all the other criteria set out in the Regulation. On the one hand, Article 11 must be examined last since it must first be established that the other criteria would 'lead to separation'. On the other hand, contrary to the general rule of Article 7(2) (see above Article 7 MN I), Article 11 takes precedence over any other applicable criterion that would 'lead to separation' regardless 143 It is wonh pointing out that adults are not always considered 'family membcn" of the minor siblings that accompany them: rigidly applying the proviso that 'family ties must have existed in the country of origin", some Member States deny them this quality by relying on the fact that they were not the guardians of the minon in the country of origin: see ECRE, Lives on Hold, para 4.3. l. 116 See Filzwieser/Sprung, Dublin 111-Verordnung, Article 11 MN Kl; Maiani, The Protection of Family Unity, p. 35 f.

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Art. 12

Dublin lll Regulation (EU) No 604/2013

of their respective position: its very purpose is to prevent separation through the application of alternative criteria (see below MN 5). In this respect, the fact of having moved the criterion from the bottom of the enumeration of criteria - where it was under the Dublin II Regulation (EC) No 343/2003 - to the middle has no consequence other than slightly confusing things. 147 5 Once the conditions for the application of Article 11 are fulfilled, the usual responsibility criteria are disabled and responsibility for the family members or siblings is determined en bloc for the whole group according to two special criteria - number and, failing that, the age of the oldest applicant. This will preserve family unity among the members of the group. Nothing guarantees, however, that the criteria of Article 11 will eventually ensure family unity with relatives outside the group, and cases are conceivable in which they could prevent e.g. a child from reuniting with his or her mother. 148 The unintended consequences caused by Article 11 in such exceptional cases, as well as the stark limitations imposed on its scope by the various limitations already referred to, may be corrected through the use of the discretionary clauses (see below Article 17). 149

Article 12 Issue of residence documents or visas l. Where the applicant is in possession of a valid residence document, the

Member State which issued the document shall be responsible for eum.ining the application for international protection. 2. Where the applicant is in possession of a valid visa, the Member State which issued the visa shall be responsible for examining the application for international protection, unless the visa was issued on behalf of another Member State under a representation arrangement as provided for in Article 8 of Regulation (EC) No 810/ 2009 of the European Parliament and of the Council, of 13 July 2009, establishing a Community Code on Visas< 14 >_ In such a case, the represented Member State shall be responsible for examining the application for international protection. 3. Where the applicant is in possession of more than one valid residence document or visa issued by different Member States, the responsibility for examining the application for international protection shall be assumed by the Member States in the following order: (a) the Member State which issued the residence document conferring the right to the longest period of residency or, where the periods of validity are identical, the Member State which issued the residence document having the latest expiry date; (b) the Member Stale which issued the visa having the latest expiry date where the various visas are of the same type; (c) where visas are of different kinds, the Member Stale which issued the visa having the longest period of validity or, where the periods of validity are identical, the Member State which issued the visa having the latest expiry date. 4. Where the applicant is in possession only of one or more residence documents which have expired less than two years previously or one or more visas which have '"Fora similar observation see Filzwieser/Sprung, Dublin 111-Verordnung, Article 11 MN Kl. Consider c. g. the case of three siblings, children of the same father, applying in the same Member State while the mother of one of them is present in another Member State and the two others have no family member or relative in the Union. 1•• On funher limitations of Anicle 11, sec Filzwieser/Sprung, Dublin lll-Verordnung, Anicle 11 MN KS. (l, Member States shall communicate to the Commission (Eurostat), statistics concerning the application of this Regulation and of Regulation (EC) No 1560/2003.

Article 46 also foresees continuous monitoring and evaluation, including a report that is to be published every four years for both the Dublin III Regulation (EU) No 604/2013 and Eurodac. It provides for the monitoring and evaluation of the application of both Regulations and foresaw a first report on the Dublin III Regulation - commonly referred to as the 'fitness check' in line with the wording used in recital 9 - to be carried out by 21 July 2016. For further reporting on the application, Article 46(2) refers to Article 40 of the Eurodac Regulation (EU) No 603/2013 for the 11•1

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applicable timelines. The first evaluation report on Eurodac was, pursuant to Article 40(4) of the Eurodac Regulation (EU) No 603/2013, to be compiled by 20 July 2018. However, the developments in 2015 incited a different approach by the Commission. In the run-up to the Commission Proposals to reform the Dublin and Eurodac Regulations of 4 May 2016 (see above Article 1 MN 4), an evaluation of the Regulation and its implementation was carried out by a contractor (ICFi) and published in two steps in December 2015 and March 2016480 in order to provide for a basis for the new proposals. Numerous studies and proposals have been issued since including the Report by the European Parliament on the Commission Proposal481 and finally the Commission Proposal for the Asylum and Migration Management Regulation 482 • All of these proposals and reports, as well as the several more referenced in the Selected Bibliography above, contain figures and further data on the application of the Dublin III Regulation. Article 47 places the obligation on the Member States to communicate the 2 statistics on the application of the Dublin system to Eurostat, the statistical office of the European Union. The available Dublin statistics (migr_dub) are basically divided into three parts, containing information on requests, on decisions on Dublin requests and on transfers. Dublin statistics are complemented by the Eurodac statistics that are compiled by the European Agency for the operational management of large-scale IT systems in the area of freedom, security and justice (eu-LISA). EU-LISA publishes the Annual Reports on the activities of Eurodac that are closely related to application of the Regulation. 483 An annual analysis of these statistics and on the application of the Regulation (as well 3 as on Eurodac) are available in the Annual Reports on the situation of asylum in the European Union issued by the European Asylum Support Office (EASO). EASO reports aim at offering a 'concise and comprehensive overview of key developments in international protection and the functioning of the Common European Asylum System (CEAS)'. 484

Article 48

Repeal Regulation (EC) No 343/2003 is repealed. Articles 11(1), 13, 14 and 17 of Regulation (EC) No 1560/2003 are repealed. References to the repealed Regulation or Articles shall be construed as references to this Regulation and shall be read in accordance with the correlation table in Annex II.

"" ICFi, Evaluation of the Dublin Ill Regulation - final report (2015, available at: hnps://ec.europa.eu [last accessed 23 June 20211; ICFi, Implementation. '"' European Parliament doc. AS-0345/2017 of 6 November 2017. For analysis see Maiani/HNSchka, The Report of the European Parliament on the Reform of the Dublin system: Certainly bold, but pragmatic? EU Immigration and Asylum Law and Policy Blog of 20 December 2017, available at: eumigrationlawblog.eu [last accessed 18 June 202 I I, '"2 Commission Proposal, COM(2020) 610. This proposal basically retains the Dublin principles, see above Article I M:S 4. '"' These reports as well as more data and Information on Eurodac are available on a dedicated page: https://www.eulisa.europa.eu/Publications [last accessed 29 May 202 I 1.,... EASO, Annual report on the situation of asylum in the European Union 2019 (2020), available at: hnps://easo.europa.eu [last accessed I June 202 I I, foreword.

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Art. 49

Dublin Ill Regulation (EU) No 604/2013

Article 49 Entry into force and applicability This Regulation shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union. It shall apply to applications for international protection lodged as from the first day of the sixth month following its entry into force and, from that date, it will apply to any request to take charge of or take back applicants, irrespective of the date on which the application was made. The Member State responsible for the eumination of an application for international protection submitted before. that date shall be detennined in accordance with the criteria set out in Regulation (EC) No 343/2003. References in this Regulation to Regulation (EU) No 603/2013, Directive 2013/32/ EU and Directive 2013/33/EU shall be construed, until the dates of their application, as references to Regulation (EC) No 2725/2000117l, Directive 2003/9/Ec< 111 and Directive 2005/85/EC0 91 respectively. This Regulation shall be binding in its entirety and directly applicable in the Member States in accordance with the Treaties. I

Article 48(1) and (2) repeal the Dublin II Regulation (EC) No 343/2003 and the parts of the Dublin Implementing Regulation (EC) 1560/2003 that have been incorporated into the Dublin III Regulation (EU) No 604/2013. Article 49(1) and (2) foresaw different dates for the entry into force of the Dublin III Regulation (EU) No 604/2013 (21 July 2013) and for its practical application (generally l January 2014). 485 2 The transitory provisions relating to the application of the Dublin III Regulation (EU) No 604/2013 (Article 49(2)) as well as the date of entry into force of the Eurodac Regulation (EU) No 630/2013, the Asylum Procedures Directive 2013/32/EU and the Asylum Reception Conditions Directive 2013/33/EU (21 July 2015) have passed. Therefore, the historically interesting details of intertemporal law, are now superseded by the full applicability of the Dublin III Regulation (EU) No 604/2013, which is fully binding and applicable in its entirety. 486 3 Article 48(3) provides for the continuity of the application of the Dublin system within the EU system without the need to change all other EU legislative acts that refer to the repealed Dublin II Regulation (EC) 343/2003 and the repealed parts of the Dublin Implementing Regulation (EC) 1560/2003. Section 3 refers to the correlation table in Annex II.

0 7, Council Regulation (EC) No 2725/2000 of 11 December 2000 concerning the establishment of 'Eurodac' for the comparison of fingerprints for the effective application of the Dublin Convention (OJ L 316, 15.12.2000, p. l). 0•1 Council Directive 2003/9/EC of 27 January 2003 laying down minimum standards for the reception of asylum seekers (OJ L 31, 6.2.2003, p. 18). 0• 1 Council Directive 2005/85/EC of I December 2005 on minimum standards on procedures for granting and withdrawing refugee status (OJ L 326, 13.12.2005, p. 13). m From a purely legal perspective, Anicles 48 and 49 created a confusing situation: see Bergmann, Das Dublin-Asylsystem, p. 81; Filzwicser/Sprung. Dublin lll-Verordnwtg. Article 48 MN KL ... See also Article 49(4) taking up the wording of Article 288 TFEU.

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ANNEX I Repealed. Regulations (referred. to in Article 48) Council Regulation (EC) No 343/2003 (OJ L 50, 25.2.2003, p. I) Commission Regulation (EC) No 1560/2003 only Articles 11(1), 13, 14 and 17 (OJ L 222, 5.9.2003, p. 3)

ANNEX II Correlation table [ ... ]

STATEMENT BY THE COUNCIL, THE EUROPEAN PARLIAMENT AND THE COMMISSION The Council and the European Parliament invite the Commission to consider, without prejudice to its right of initiative, a revision of Article 8(4) of the Recast of the Dublin Regulation once the Court of Justice rules on case C-648/11 MA and Othen vs. Secretary of State for the Home Department and at the latest by the time limits set in Article 46 of the Dublin Regulation. The European Parliament and the Council will then both exercise their legislative competences, taking into account the best interests of the child. The Commission, in a spirit of compromise and in order to ensure the immediate adoption of the proposal, accepts to consider this invitation, which it understands as being limited to these specific circumstances and not creating a precedent.

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Chapter 24. Resettlement Regulation (Proposal) Select Bibliography: Carrera/Cortinovis, The EU's Role in Implementing the UN Global Compact on Refugees. Contained mobility vs. International Protection·, CEPS Paper in Liberty and Security in Europe No 2018-04 (2019); de Boer/Zieck, 'The Legal Abyss of Discretion in the Resettlement of Refugees: CherryPicking and the Lack of Due Process in the EU', IJRL 32 (2020), p. 54-85; Hathaway, The Rights of Refugees under International Law (CUP, 2005); Ineli-Ciger, 'The Global Compact on Refugees and Burden Sharing: Will the Compact Address the Nonnative Gap Concerning Burden Sharing?', Refugee Survey Quarterly 38 (2019), p. 115-138; Ineli-Ciger, Temporary Protection in Law and Practice (Brill/Nijhoff, 2018); Jakuleviciene/Bileilis, 'EU refugee resettlement: key challenges of expanding the practice into new member states', Baltic Journal of Law & Politics 9 (2016), p. 93-123; Noll/Van Seim, 'Rediscovering resettlement', MP! Insight 3 (2003), available at: https://www.migrationpolicy.org/research/rediscovering-resettlement !last accessed 25 February 2021); Romano, The External Dimension and Access to International Protection in the European Union: Resettlement and Humanitarian Visas', in: Kotzur/Moya/Soren/Romano (eds), The External Dimension of EU Migration and Asylum Policies (Nomos, 2020), p. 97-120; Savino, 'Refashioning resettlement: from border externalization to legal pathways for asylum', in: Carrera/den Hertog/Panizzon/ Kostakopoulou (eds), EU External Migration Policies in an Era of Global Mobilities: Intersecting Policy Universes (Brill Nijhoff, 2018), p. 81-104; Tometten, 'Resettlement, Humanitarian Admission, and Family Reunion: The Intricacies of Gennany' s Legal Entry Regimes for Syrian Refugees', Refugee Survey Quarterly 37 (2018), p. 187-203; UNHCR, Resettlement Handbook (2011), available at https://www.refworld.org/ docid/4ecb973c2.htrnl [last accessed 25 February 2021 ]; Van Seim, 'Refugee Resettlement', in: FiddianQasmiyeh/Loescher/Long/Sigona (eds), The Orford Handbook of Refugee and Forced Migration Studies (OUP, 2014), p. 512-524; Ziebritzki, 'The Objective of Resettlement in an EU Constitutional Perspective', in: Foblets/1.eboeuf (eds), Humanitarian Admi.uion to Europe (Nomos, 2020), p. 283-340. Note that literature in the selected bibliography will be mentioned in an abbreviated version in the text

below, referring to the authors(s) and a short title only.

Proposal for a Regulation of the European Parliament and of the Council establishing a Union Resettlement Framework and amending Regulation (EU) No 516/2014 of the European Parliament and the Council COM(2016) 468 final THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION, Having regard to the Treaty on the Functioning of the European Union, and in particular Article 78(2)(d) and (g) thereof, Having regard to the proposal from the European Commission, After transmission of the dnft legislative act to the national parliaments, Having regard to the opinion of the European Economic and Social Committee